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IRS Doesn't Need a Warrant To Read Your Email?

By - Source: American Civil Liberties Union | B 15 comments

Documents obtained from the IRS reveals that the tax agency thinks it can snoop through your emails, Facebook messages and more.

Nathan Wessler, a staff attorney in the American Civil Liberties Union (ACLU), received documents released under the Freedom of Information Act revealing that the IRS, or rather its Criminal Tax Division, may believe it can read emails, text messages and other private electronic communications without a search warrant. The documents are in response to a request from the ACLU to the IRS about its methods of acquiring a warrant before reading private electronic documents.

According to Wessler, the 247-page answer supplied by the IRS doesn't answer the question point-blank, but does suggest that the nation's tax collector believes Americans enjoy "generally no privacy" regarding Facebook messages, Twitter direct messages, email or similar communication... at least before the Sixth Circuit Court of Appeals decided in 2010's United States v. Warshak that the government must obtain a probable cause warrant before forcing email providers to turn over messages.

"The IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit," he said. "The documents the ACLU obtained make clear that, before Warshak, it was the policy of the IRS to read people’s email without getting a warrant. Not only that, but the IRS believed that the Fourth Amendment did not apply to email at all."

Wessler calls the Electronic Communications Privacy Act (ECPA) "hopelessly outdated", as it draws a distinction between emails that are stored on an email provider’s server for 180 days or less, and emails that are older or has been opened. The first group requires a search warrant whereas the latter group does not, yet the Fourth Amendment supposedly protects them all from unreasonable searches by the government.

The IRS Criminal Tax Division’s Office of Chief Counsel disagrees with the Fourth Amendment coverage, stating in 2009 that it "does not protect communications held in electronic storage, such as email messages stored on a server, because internet users do not have a reasonable expectation of privacy in such communications." A similar message was stated again in 2010, but then Warshak came along to supposedly set things straight.

Or maybe not. An October 2011 IRS Chief Council Advice memorandum explained that Warshak applies only in the Sixth District. At the time, the IRS was wanting access to emails that were more than 180 days old, and questioned whether Warshak would interfere with their efforts. But the ISP was reluctant to cough up the emails willingly anyway, and the IRS did not see "any reasonable possibility that the Service will be able to obtain the contents of this customer’s emails . . . without protracted litigation, if at all." Investigative leads within those emails would be "stale" by the time the litigation would be concluded.

Now here's the punch in the face of privacy. "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," he states. "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."

The good news here is that a plethora of companies are fighting to protect the privacy of their users including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, Twitter and numerous others. Along with many advocacy groups, they are asking Congress to update the ancient ECPA with verbiage that states that the IRS and other authorities must acquire a warrant before accessing the private electronic conversations of U.S. citizens, old or new.

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Display 15 Comments.
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  • 1 Hide
    g00fysmiley , April 12, 2013 2:14 PM
    morale of the story... keep your inbox empty and clean, and archive on your own hdd or physical media
  • 2 Hide
    koga73 , April 12, 2013 2:28 PM
    good thing I don't use Facebook and have my own private physical mail server
  • -5 Hide
    senkasaw , April 12, 2013 2:32 PM
    Email isn't a secure means of communication to begin with, so...who cares? Now, when they believe they can try to install sniffers on my system to snake my decryption keys without my knowledge...I will get ticked.
  • 0 Hide
    jhansonxi , April 12, 2013 3:23 PM
    Simple solution - use encryption. If you are worred about the government then you shouldn't be trusting your ISP either. Use GnuPG/PGP or S/MIME. The only probiem is that they work better if you are using an email client, not webmail.
  • -3 Hide
    Anonymous , April 12, 2013 3:43 PM
    Mine is encrypted anyway so good luck reading it. Smarter than the man.
  • -1 Hide
    nebun , April 12, 2013 4:35 PM
    let them read it...I have nothing to hide
  • 0 Hide
    antilycus , April 12, 2013 4:50 PM
    lol like the federal government or anything federal at all can ever get ANYTHING actually USEFUL passed. They need money from big business before they decide to work for a couple hours a week.
  • 0 Hide
    Soda-88 , April 12, 2013 5:20 PM
    Greatest country in the whole wide world!
  • 0 Hide
    ipwn3r456 , April 12, 2013 5:45 PM
    Years later internet censorship will become just the same as North Korea.... All those BS SOPA, PIPA, Copyrigth Alert System, CISPA... What's next?
  • 2 Hide
    DRosencraft , April 12, 2013 7:12 PM
    The Facebook thing... yeah, it's literally called a wall. You tell me how secure the stuff you pin on a wall at work is. Facebook is not a place you go looking for privacy - it just isn't. The e-mail thing though, I don't think they really have the right to do that. We could have a huge legal class on that though, being that in this country you mention taxes and you scare people into hysteria so quick not be paying enough attention to know what the IRS is doing.
  • 0 Hide
    oj88 , April 12, 2013 7:18 PM
    What's the difference does it make? Everyone can read my emails freely, including FBI, CIA, hackers, my son and my wife, now the IRS. However, no one can get any useful information from an old-poor-retired engineer.
  • 0 Hide
    Gundam288 , April 13, 2013 1:07 AM
    They can have fun digging thru my 10,000+ unopened spam emails in my inbox. I hope they at least delete the spam emails.
  • 0 Hide
    del35 , April 13, 2013 9:19 AM
    Even if they needed one, I am sure they would find a way around it. So it is better that they don't need one.
  • 0 Hide
    king smp , April 15, 2013 12:12 PM
    George Orwell really was a good writer LOL
  • 0 Hide
    king smp , April 15, 2013 12:12 PM
    George Orwell really was a good writer LOL
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