IRS: We Don’t Need a Warrant to Read Your Emails… UPDATE: IRS Conducting Audits Based on FACEBOOK and TWITTER Info
By: Rachel Pulaski
Last year the ACLU filed a Freedom of Information Act request to the IRS. The request was in regards to whether the IRS obtained a warrant before searching a person’s electronic communications privately sent such as emails and text messages. Like many federal entities they feel they are above the law and laws do not apply to them. The IRS has been disregarding the 4th Amendment and obtaining private messages 180 days old without warrants. In 2010 the Sixth Circuit Court of Appeals decided “United States vs. Warshak” that the government has to obtain a warrant before making email providers turn over private messages.
An IRS employee sought guidance about whether it is proper to use an administrative summons, instead of a warrant, to obtain emails that are more than 180 days old. (The emails in question were located on an internet service provider’s (ISP) server somewhere in the territory covered by the Ninth Circuit Court of Appeals). The memo summarized the holding of Warshak and advised that “as a practical matter it would not be sensible” to seek older emails without a warrant. This is good advice, but the memo’s reasoning leaves much to be desired. The memo explained that Warshak applies only in the Sixth Circuit but that, because the ISP had informed the IRS that it did not intend to voluntarily comply with an administrative summons for emails, there was not “any reasonable possibility that the Service will be able to obtain the contents of this customer’s emails . . . without protracted litigation, if at all.” Any investigative leads contained in the emails would therefore be “stale” by the time the litigation could be concluded, making attempted warrantless access not worthwhile.
The memo misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it. Instead, the memo’s advice (which may not be used as precedent and is not binding in other IRS criminal investigations) is limited to situations in the Ninth Circuit where an ISP intends to challenge warrantless requests for emails. The IRS shouldn’t obey the Fourth Amendment only when it faces the inconvenience of protracted litigation; it should recognize that the Fourth Amendment requires warrants for the contents of emails at all times.
Finally, to the present: has the IRS’s position changed this tax season? Apparently not. The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.
UPDATE: That’s not all the IRS is doing. Apparently they are spying on social media such as Facebook and Twitter to find out more about your finances and personal information.