ACLU Documents Show The IRS May Be Reading Your Emails

The American Civil Liberties Union (ACLU), a non-profit organization whose mission is to protect the individual rights and liberties of individuals in the country, has reported that the IRS could be reading emails without a warrant. The ACLU filed a Freedom of Information Act request and reviewed 247 pages of IRS records to see if the agency obtains a warrant before reading emails, text messages, and other forms of communication. According to Nathan Wessler, a staff attorney with the ACLU, “It’s been very clear under the law for many, many years that when the government wants to read the content of our letters, diaries or listen to our phone calls they need to get a warrant. And the content in our emails is just as private.” Because the Electronic Communications Privacy Act is outdated, issues regarding accessing emails are not properly regulated. The law was enacted in 1986 and only protects unopened email or email that has been stored on a server for 180 days or less. This means any email that’s been opened or stored for more than 180 days does not require a warrant.

The Fourth Amendment guards against unreasonable searches and seizures. However, according to a 2009 IRS handbook, the IRS said “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.” Traditionally, the courts have ruled that people have limited privacy rights over information they share with third parties. However, in a 2010 case, U.S. v. Warshak, a federal appeals court ruled that police violated a man’s constitutional rights when they read his email without a warrant. According to the court, agencies needed to get a warrant before reading any emails, not just those that were new and unopened. In an October 2011 memo, an IRS attorney explained that the Warshak decision only applies in the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee. According to the IRS, “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. The IRS may also search social media accounts for incriminating information.

The ACLU is calling on the IRS to amend its procedures to bring them in line with the Fourth Amendment. The ACLU believes that the IRS should let the public know whether it obtains warrants across the board when accessing people’s email. They also believe that the IRS should amend its policies to require its agents to obtain warrants when seeking the contents of email.