There has been a lot of talk lately about the outdated law governing law enforcement's access to emails, but it appears an agency lesser known for its law enforcement capabilities could be reading communications without a warrant.
Documents obtained through a Freedom of Information Act request from the ACLU reveal that the Internal Revenue Service might think it has the ability to obtain communications without a warrant for its investigations of violations of tax law.
ACLU staff attorney Nathan Freed Wessler wrote that the documents received do not answer directly if the IRS obtains a warrant for emails, text messages and other communications, but "they suggest otherwise":
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. A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts that “the Fourth Amendment 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.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “4th Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.
Although this and other documents suggest that IRS didn't get warrants for some communications at the time, Wessler for the ACLU wrote in 2010 case of United States v. Warshak the Sixth Circuit Court of Appeals decided a warrant would be needed from authorities to obtain communications from email providers.
Documents obtained in the FOIA request dated after this 2010 decision, according to the ACLU, reveal that the IRS did not appear to have revised its policy accordingly regarding obtaining warrants:
The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. Again, no suggestion that the Fourth Amendment might require more.
Wessler included that a memo issued later in 2011 brings up the issue of whether a warrant would be necessary for communications. The memo addressing an employee's questions on the topic, Wessler said, has good advice, but it also places the Warshak decision as only applying to territory covered by the circuit court.
"The memo misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it," Wessler wrote. "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."
Watch CNET's report regarding the IRS obtaining communications without a warrant:
The ACLU calls upon the IRS to tell the public more about its policy regarding whether it gets warrant to access private communications for its criminal investigations.
"Let’s hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails. Until now, that hasn’t been the case," Wessler wrote. "... the IRS should formally amend its policies to require its agents to obtain warrants when seeking the contents of emails, without regard to their age.
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