According to internal documents, the US Internal Revenue Service (IRS) believes it does not need a probable-cause warrant to read anyone’s email. Declan McCullagh, writing for CNET, cites the IRS 2009 Search Warrant Handbook obtained by the American Civil Liberties Union (ACLU) which states American citizens have “generally no privacy” in their private electronic communications.
The IRS document, written by the Office of Chief Counsel for the Criminal Tax Division of the IRS was obtained by the ACLU through a Freedom of Information Act (FOIA) request.
McCullagh reports that the IRS maintained its position even after the 2010 Sixth Circuit Court of Appeals ruling in US v. Warshak (.pdf; 271.3KB) that warrantless searches of email violates the Fourth Amendment. “Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection,” wrote Judge Danny Boggs in his unanimous opinion.
The US Justice Department argued (.pdf; 1.8MB) that the Fourth Amendment was inapplicable because “compelled disclosure of email is permissible under most providers’ terms of service.” Last month, the Justice Department signaled it would not oppose pending legislation requiring probable-cause warrants to search email.
But the IRS didn’t get that memo.
“Emails and other transmissions generally lose their reasonable expectation of privacy and thus their Fourth Amendment protection once they have been sent from an individual’s computer,” according to the IRS handbook. McCullagh reports that a March 2011 update to the handbook — published after the US v. Warshak decision — maintains the agency’s original position: “Investigators can obtain everything in an account except for unopened email or voice mail stored with a provider for 180 days or less” without a warrant.
On 16 April — the day after tax day — IRS Acting Commissioner Steven Miller testified before the US Senate Finance Committee, promising to update his agency’s policy documentation within 30 days to reflect the requirement for a warrant to access all email, regardless of age. Questions remain, however, regarding other forms of private electronic communication and how long and how often after the US v. Warshak decision the IRS warrantlessly surveilled email.
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IRS demonstrates lack of Fourth Amendment understanding was originally published by ARTS & FARCES internet on Wednesday, 17 April 2013 at 8:18 AM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)