Circuit court says search is unconstitutional, but IRS ignores that ruling

It's tax time so the U.S. Internal Revenue Service (IRS) is likely in the minds (and fears) of many.  The IRS is also on the mind of the American Civil Liberties Union (ACLU).

I. Big Brother is Watching Your Email 

The ACLU is currently fighting a battle with the IRS over warrantless email snooping.  The IRS is reportedly regularly going to internet service providers and demanding their customers’ older emails -- and it's often getting the information.
The debate starts with the Fourth Amendment of the U.S.'s most important governing document, the Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Constitution
[Image Source: EL Civics]
That's seemingly an open and shut statement -- the police can't investigate a citizen without a warrant.  But in recent years the federal government -- including the IRS -- has been steadily chipping away at due process.

The IRS for much of last decade argued email was not Constitutionally protected.
[Image Source: CNN]

Back in 2009, the IRS was operating under the premise that there were no protections against email searches.  That protocol was affirmed by the “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel, a document that the ACLU obtained via a Freedom of Information Action (FOIA) of 1966 (5 U.S.C. § 552) lawsuit.

II. A Policy of Warrantless Surveillance

The 2009 IRS handbook suggests "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."

A second document -- a 2010, a presentation by the IRS Office of Chief Counsel -- repeats this, stating that citizens have "no privacy expectation" when it comes to email and commenting, "[The] 4th Amendment Does Not Protect Emails Stored on Server."

Thus the IRS practiced a haphazard process of obtaining emails, only occasionally backing its demands with warrants (perhaps when it met with resistance from service firms).

IRS Building
The IRS claimed the Fourth Amendment didn't apply to email. [Image Source: Bloomberg]

The IRS policy was only slightly worse than the general government policy.  Back in 2009, the general federal investigative policy -- based on the Electronic Communications Privacy Act (ECPA) (18 U.S.C. § 119) -- was that unopened emails less than 180 days old required a warrant, but emails older than 180 days, or opened emails did not require a warrant for federal agents to obtain.

Of course the Fourth Amendment seemingly gave a far more explicit and stringent requirement, regardless of the shortcomings of the ECPA, so it seemed inevitable that the issue would be put to the test.  And it was. 

III. Sixth Circuit Ruling Deals a Blow to Practice, But IRS Resists Change

In 2010, the Sixth Circuit Court of Appeals decided a critical case on the topic of email privacy -- United States v. WarshakIn that case the Circuit Court -- which sets precedent for Kentucky, Michigan, Ohio, and Tennessee -- decided that federal agents must obtain a warrant to obtain any email regardless of the age or open status, due to the Fourth Amendment protections.

The big questions after the Sixth Circuit decision was when it would be appealed and whether federal investigative agencies would comply with it until the issue was settled at the Supreme Court level.  The ACLU requested information from the IRS, the U.S. Federal Bureau of Investigation, and U.S. Department of Justice.

The IRS was the first to respond back.  And its 247-page response made it clear that it was not necessarily abiding by the Sixth Circuit ruling and may still be snooping on email.  The IRS instead switched to the previous precedent -- the 180 day ECPA protocol.

Tax rate
The IRS's manual still suggests warrantless email grabs are okay, despite a Federal Circuit Court ruling that they are unconstitutional. [Image Source: Something Finance]

Internal memos reveal IRS legal counsels initially denied having heard of the Sixth Circuit opinion, and argued that the 180-day rule is current and universal.  But in 2011 they advised that it "would not be sensible" to read emails without warrant.  The agency lawyers warned that ISPs could fight the demands, citing the Sixth Circuit ruling, and that while the agency was confident it could win the information obtained would be "stale" by then.

However, the advisory was never made mandatory, so presumably some warrantless data requests occurred.  Such a possibility is reinforced by the fact that this year's Internal Revenue Manual, available on the IRS website still says that no warrant is required for emails older that 180 days old -- making no reference of the Sixth Circuit ruling or the internal discussion.

Source: ACLU

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser

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