I don’t know about you, but I figure we all have to pay a fair share of taxes, and although it hurts, I write the check every April and don’t waste brain cells hating on the IRS. But now it appears that the IRS, in defiance of both the Constitution and a recent federal court decision, has decided that it is probably okay to read our emails and texts without so much as obtaining a warrant. That, I hate.
Here’s what the IRS thinks about your right to privacy: “The Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because Internet usersdo not have a reasonable expectation of privacy in such communications.”
Although you may not realize it, the IRS is a law enforcement agency with quite a bit of investigatory power when it comes to tax-related matters. The ACLU has suspected that the agency believes it doesn’t need a warrant to read all sorts of electronic communications, and filed a freedom of information request to find it. Unfortunately, the ACLU was right. The gem above was just a tiny sliver of the 247 pages of records the IRS handed over.
Privacy aside, why does it take a court order for the public to see a stash of very important policy documents? We are not talking national security here. The ACLU, bless its bleeding liberal heart, posted all of the documents on line. (There’s a link to the IRS documents inside this ACLU blog post on the issue.)
The documents are murky, the ACLU says, on a critical question: Has the IRS actually been reading electronic communications without a warrant, as opposed to just thinking it can?
“The IRS should tell the public whether it always gets a warrant to access email and other private communications in the course of criminal investigations. And if the agency does not get a warrant, it should change its policy to always require one,” wrote Nathan Freed Wessler, an ACLU staff attorney.
Not to get all geeky (in the legal sense), but there are a few important points that add a good deal of context to this discussion. First of all, the badly outdated 1986 Electronic Communications Privacy Act needs to be amended to make it clear that law enforcement needs warrants to access private communications and the locations of mobile devices. Currently, it does not, and makes a preposterous distinction between email that is stored on an email provider’s server for 180 days or less, and email that is older or has been opened. The former requires a warrant; the latter does not.
Even so, a 2010 federal ruling in a case called United States v. Warshack, says the government must obtain a probable cause warrant before compelling email providers to turn over messages. And then of course, there’s the small matter of the Fourth Amendment to the Constitution that is supposed to protect us from unreasonable searches and seizures.
We’ll see how this shakes out. And give it some thought when you drop that check in the mail. After all, it’s your tax dollars at work.
San Francisco journalist Bill Snyder writes frequently about business and technology. His work appears regularly in CIO.com and the publications of Stanford's Graduate School of Business and the Haas School of Business at the University of California at Berkeley. He welcomes your comments and suggestions.