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The ACLU has obtained internal IRS documents that say Americans enjoy "
generally no privacy" in their e-mail messages, Facebook chats, and other
electronic communications.
The Internal Revenue Service doesn't believe it needs a search warrant to
read your e-mail.
Newly disclosed documents prepared by IRS lawyers says that Americans enjoy
"generally no privacy" in their e-mail, Facebook chats, Twitter direct
messages, and similar online communications -- meaning that they can be
perused without obtaining a search warrant signed by a judge.
That places the IRS at odds with a growing sentiment among many judges and
legislators who believe that Americans' e-mail messages should be protected
from warrantless search and seizure. They say e-mail should be protected by
the same Fourth Amendment privacy standards that require search warrants for
hard drives in someone's home, or a physical letter in a filing cabinet.
An IRS 2009 Search Warrant Handbook obtained by the American Civil Liberties
Union argues that "emails and other transmissions generally lose their
reasonable expectation of privacy and thus their Fourth Amendment protection
once they have been sent from an individual's computer." The handbook was
prepared by the Office of Chief Counsel for the Criminal Tax Division and
obtained through the Freedom of Information Act.
Nathan Wessler, a staff attorney at the ACLU's Speech, Privacy & Technology
Project, says the IRS's view of privacy rights violates the Fourth Amendment:
Let's hope you never end up on the wrong end of an IRS criminal tax
investigation. 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 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.
The IRS did not immediately respond to a request from CNET asking whether it
is the agency's position that a search warrant is required for e-mail and
similar communications.
The IRS continued to take the same position, the documents indicate, even
after a federal appeals court ruled in the 2010 case U.S. v. Warshak that
Americans have a reasonable expectation of privacy in their e-mail. A few e-
mail providers, including Google, Microsoft, Yahoo, and Facebook, but not
all, have taken the position that Warshak mandates warrants for e-mail.
Before the Warshak decision, the general rule since 1986 had been that
police could obtain Americans' e-mail messages that were more than 180 days
old with an administrative subpoena or what's known as a 2703(d) order, both
of which lack a warrant's probable cause requirement.
The rule was adopted in the era of telephone modems, BBSs, and UUCP links,
long before gigabytes of e-mail stored in the cloud was ever envisioned.
Since then, the 6th Circuit Court of Appeals ruled in Warshak, technology
had changed dramatically: "Since the advent of e-mail, the telephone call
and the letter have waned in importance, and an explosion of Internet-based
communication has taken place. People are now able to send sensitive and
intimate information, instantaneously, to friends, family, and colleagues
half a world away... By obtaining access to someone's e-mail, government
agents gain the ability to peer deeply into his activities."
A March 2011 update to the IRS manual, published four months after the
Warshak decision, says that nothing has changed and that "investigators can
obtain everything in an account except for unopened e-mail or voice mail
stored with a provider for 180 days or less" without a warrant. An October
2011 memorandum (PDF) from IRS senior counsel William Spatz took a similar
position.
A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel,
Microsoft, and Twitter, as well as liberal, conservative, and libertarian
advocacy groups, have asked Congress to update the 1986 Electronic
Communications Privacy Act to make it clear that law enforcement needs
warrants to access private communications and the locations of mobile
devices.
In November, a Senate panel approved the e-mail warrant requirement, and
last month Rep. Zoe Lofgren, a Democrat whose district includes the heart of
Silicon Valley, introduced similar legislation in the House of
Representatives. The Justice Department indicated last month it will drop
its opposition to an e-mail warrant requirement.
linky: http://news.cnet.com/8301-13578_3-57578839-38/irs-claims-it-can-read-your-e-mail-without-a-warrant/
generally no privacy" in their e-mail messages, Facebook chats, and other
electronic communications.
The Internal Revenue Service doesn't believe it needs a search warrant to
read your e-mail.
Newly disclosed documents prepared by IRS lawyers says that Americans enjoy
"generally no privacy" in their e-mail, Facebook chats, Twitter direct
messages, and similar online communications -- meaning that they can be
perused without obtaining a search warrant signed by a judge.
That places the IRS at odds with a growing sentiment among many judges and
legislators who believe that Americans' e-mail messages should be protected
from warrantless search and seizure. They say e-mail should be protected by
the same Fourth Amendment privacy standards that require search warrants for
hard drives in someone's home, or a physical letter in a filing cabinet.
An IRS 2009 Search Warrant Handbook obtained by the American Civil Liberties
Union argues that "emails and other transmissions generally lose their
reasonable expectation of privacy and thus their Fourth Amendment protection
once they have been sent from an individual's computer." The handbook was
prepared by the Office of Chief Counsel for the Criminal Tax Division and
obtained through the Freedom of Information Act.
Nathan Wessler, a staff attorney at the ACLU's Speech, Privacy & Technology
Project, says the IRS's view of privacy rights violates the Fourth Amendment:
Let's hope you never end up on the wrong end of an IRS criminal tax
investigation. 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 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.
The IRS did not immediately respond to a request from CNET asking whether it
is the agency's position that a search warrant is required for e-mail and
similar communications.
The IRS continued to take the same position, the documents indicate, even
after a federal appeals court ruled in the 2010 case U.S. v. Warshak that
Americans have a reasonable expectation of privacy in their e-mail. A few e-
mail providers, including Google, Microsoft, Yahoo, and Facebook, but not
all, have taken the position that Warshak mandates warrants for e-mail.
Before the Warshak decision, the general rule since 1986 had been that
police could obtain Americans' e-mail messages that were more than 180 days
old with an administrative subpoena or what's known as a 2703(d) order, both
of which lack a warrant's probable cause requirement.
The rule was adopted in the era of telephone modems, BBSs, and UUCP links,
long before gigabytes of e-mail stored in the cloud was ever envisioned.
Since then, the 6th Circuit Court of Appeals ruled in Warshak, technology
had changed dramatically: "Since the advent of e-mail, the telephone call
and the letter have waned in importance, and an explosion of Internet-based
communication has taken place. People are now able to send sensitive and
intimate information, instantaneously, to friends, family, and colleagues
half a world away... By obtaining access to someone's e-mail, government
agents gain the ability to peer deeply into his activities."
A March 2011 update to the IRS manual, published four months after the
Warshak decision, says that nothing has changed and that "investigators can
obtain everything in an account except for unopened e-mail or voice mail
stored with a provider for 180 days or less" without a warrant. An October
2011 memorandum (PDF) from IRS senior counsel William Spatz took a similar
position.
A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel,
Microsoft, and Twitter, as well as liberal, conservative, and libertarian
advocacy groups, have asked Congress to update the 1986 Electronic
Communications Privacy Act to make it clear that law enforcement needs
warrants to access private communications and the locations of mobile
devices.
In November, a Senate panel approved the e-mail warrant requirement, and
last month Rep. Zoe Lofgren, a Democrat whose district includes the heart of
Silicon Valley, introduced similar legislation in the House of
Representatives. The Justice Department indicated last month it will drop
its opposition to an e-mail warrant requirement.
linky: http://news.cnet.com/8301-13578_3-57578839-38/irs-claims-it-can-read-your-e-mail-without-a-warrant/
