In order to catch instances of criminal tax evasion the IRS may be violating the Fourth Amendment, the ACLU reported Wednesday. The civil liberties group obtained documents via FOIA that suggest that the IRS is reading Americans’ emails without warrants, although the agency remains cagey about its surveillance practices. Via the ACLU:
Last year, the ACLU sent a FOIA request to the IRS seeking records regarding whether it gets a warrant before reading people’s email, text messages and other private electronic communications. The IRS has now responded by sending us 247 pages of records describing the policies and practices of its criminal investigative arm when seeking the contents of emails and other electronic communications.
So does the IRS always get a warrant? Unfortunately, while the documents we have obtained do not answer this question point blank, they suggest otherwise. This question is too important for the IRS not to be completely forthright with the American public. 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.
Part of the privacy issue at stake does not solely relate to the IRS, but legal precedent in general when it comes to the surveillance of emails without a warrant. As the ACLU explained, “the federal law that governs law enforcement access to emails, the Electronic Communications Privacy Act (ECPA), is hopelessly outdated. It draws a 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.” However, as the ACLU also noted, the 2010 6th Circuit Court of Appeals decision in United States v. Warshak dictated that the government must obtain a probable cause warrant before compelling email providers to turn over messages. “However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.”
The civil liberties group is urging greater transparency from the agency about their surveillance of emails and has openly criticized the current stance on obtaining warrants:
The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.