The IRS and email privacy

Email privacy is a complex issue in almost every country in the world. By its very nature, emails have many ways of being compromised; through censorship, carriers, hackers, laws and others. In the United States, a relatively large part of email is protected, but there are many exceptions and the Fourth Amendment does not apply to many aspects of email. These are too broad for a blog posting but will be addressed in more detail in my soon to be published book, "NetiquetteIQ - A Comprehensive Guide to Improve, Enhance and Add Power to Your Email". You can refer to the end of this posting to order it when it is released. One major exception to email policy is the collective actions of the IRS and I wanted to use this blog to refer to an newly published article in "The Huffington Post" from April 10th of this year. All users of email in the United States should be aware of the actions the IRS can take. All foreign users should also be aware of these when sending email to the USA.

The article reads as follows:

IRS documents released Wednesday suggest that the tax collection agency believes it can read American citizens' emails without a warrant.

The files were released to the American Civil Liberties Union under a Freedom of Information Act request. The organization is working to determine just how broadly federal law enforcement agencies like the FBI or the IRS' Criminal Tax Division interpret their authority to snoop through inboxes.

The IRS apparently interprets that authority very broadly, the documents show: as long as you've stored your email in a cloud service like Google Mail, and as long as those emails haven't been deleted after a few months, the agency thinks it doesn't need a warrant to read them.

The idea of IRS agents poking through your email account might sound at the very least creepy, and maybe unconstitutional. But the IRS does have a legal leg to stand on: the Electronic Communications Privacy Act of 1986 allows government agencies to in many cases obtain emails older than 180 days without a warrant.

That's why an internal 2009 IRS document claimed that "the government may obtain the contents of electronic communication that has been in storage for more than 180 days” without a warrant.

Another 2009 file, the IRS Criminal Tax Division's "Search Warrant Handbook," showed that the division's general counsel believed "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 December 2010 the Sixth Circuit Court of Appeals ruled that just because your email goes through a third-party service provider doesn't mean you lose that expectation of privacy. It said federal and local law enforcers would need a warrant to read through the contents of email.

But that was just the ruling of one appeals court -- not the Supreme Court -- and the IRS' official manual online continues to claim that it does not need a warrant for emails older than 180 days.

A number of major email providers, like Google, have announced that they always demand a warrant from law enforcement in criminal investigations. In lieu of that, some other providers only require lesser court orders or subpoenas that do not require the government to show probable cause that someone has committed a crime. Members of Congress recently renewed their efforts to change the 1986 email privacy law to require a warrant. But until then, the ACLU would like the IRS to act on its own and always use a warrant.
"Let’s hope you never end up on the wrong end of an IRS criminal tax investigation," Nathan Freed Wessler, an ACLU staff attorney, wrote in a blog post. "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."

- The Huffington Post" from April 10, 2013

There will be future blogs concerning privacy issues in the USA as well as other countries. As always, any comments are appreciated. Watch for the author's book and forthcoming NetiquetteIQ test and rating product to be released shortly.

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Paul Babicki
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