IRS Can Search Email Without Warrant

A document released by the IRS suggests that Americans enjoy "generally no privacy" where online private communication is concerned.

by / April 11, 2013

A recently released document prepared by IRS lawyers shows that the agency has a different take on privacy than most judges.

According to the document, Americans enjoy “generally no privacy” where email, Twitter direct messages, Facebook chats and other private online communications are concerned, CNET reported -- the IRS can search such private communications without a signed warrant from a judge.

This viewpoint is at odds with an increasing number of judges and legislators who have upheld the Fourth Amendment in the protection of personal privacy online. The general sentiment is that private online communications should be held to the same standard as physical searches, such as searching a person’s home.

An ACLU blog post written by Staff Attorney Nathan Wessler opposes the IRS’ stand on online privacy.

“Let's hope you never end up on the wrong end of an IRS criminal tax investigation,” he wrote. “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."

The IRS, Wessler added, should let the American public know whether it obtains warrants across the board when accessing people's email. "And even more important, 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.”

In 2010, a precedent was set by the U.S. v. Warshak case that generally established the need for a warrant to search a person’s private email. Prior to Warshak, there was a rule that any email older than 180 days could be obtained with an administrative subpoena, which does not require a warrant. The rule was created before cloud computing became commonplace – legislators had not envisioned that emails would sit on a remote server for such an extended period.

Companies such as Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft and Twitter, as well as advocacy groups of various political leanings, have asked Congress to update the 1986 Electronic Communications Privacy Act to make the law clear where this issue has concerned.

In the meantime, the IRS has seen fit to take advantage of the lack of a firm precedent.