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Senators Urging IRS To Publicly Pledge Not To Snoop

Twelve senators have submitted a request (PDF) to Steven Miller, Acting Commissioner of the Internal Revenue Service (IRS), asking the agency to provide further details and a timetable for its plans to update its policies that adhere to Americans’ constitutional rights.

The request arrives after a staff attorney in the American Civil Liberties Union (ACLU) dug through documents released under the Freedom of Information Act. He discovered that the IRS had no problems snooping through emails and other electronic messages without a warrant.

"We remain troubled by press reports, indicating that until today, your agency claimed the authority to obtain citizens’ private electronic communications, including emails, without a warrant," the request states. "We believe these actions are a clear violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures."

The Senators acknowledge that the IRS likely based the legality of its warrantless search on the outdated Electronic Communications Privacy Act (ECPA) which was established long before the Internet went mainstream. But the Sixth Court of Appeals made real progress "to meaningfully protect Americans’ fundamental constitutional rights in the digital age" thanks to U.S. vs. Warshak in 2010.

"The court ruled that law enforcement must first obtain a warrant before accessing emails and that a provision of the ECPA is unconstitutional to the extent it fails to provide such protection," the letter states. "Warshak made clear that the Fourth Amendment protects the content of emails, regardless of their age."

The Senators then point out that even though the IRS has recently pledged to follow the Warshack ruling and update its policies accordingly, there are still questions regarding the extent and timing of the changes to IRS policy since the 2010 ruling. They refer to the findings unearthed by ACLU staff attorney Nathan Wessler, and point directly to the Internal Revenue Manual which notes that a warrant is not required for emails older than 180 days.

"The IRS’ response to Warshak falls particularly short when measured against the efforts of some in private industry," the Senators declare. "Following the Warshak decision, Google, Microsoft, Yahoo and Facebook have voluntarily taken the view that law enforcement must obtain a warrant before accessing private electronic communications. If these companies can abide by the Fourth Amendment, then the IRS can as well."

They urge the IRS to publicly confirm that it will immediately establish a warrant requirement when it wants to obtain email and other electronic personal correspondence from service providers covered under the ECPA. They also want a timeline as to when the IRS will update all manuals, opinions and other forms of guidance "to remove any ambiguity about IRS' authority under the ECPA."

The letter arrives one day after Miller testified in a U.S. Senate hearing over the controversy stirred up by the ACLU's findings. He said that the no-warrant-required scheme for email would be ditched within thirty days, but did not say the same for other electronic forms of communication like private Facebook messages, Twitter direct messages and so on.

"When will we actually get a public statement that the agency will not seek to obtain electronic communications without a warrant?" asked Sen. Ron Wyden during the hearing, an Oregon Democrat who is one of the twelve listed on the request letter. "When would we get that actual public statement?"

There didn't seem to be an answer, and now the Senators are asking again through a written request. "Americans must be assured their privacy rights are protected," it concludes.