Can the IRS Snoop into Personal E-mail?

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By Ken Berry

It's not likely that taxpayers are "blind copying" the IRS on their e-mails to friends or sharing their posts on social media sites with the IRS. But the IRS may be reading those messages anyway.

According to documents obtained and reviewed by the American Civil Liberties Union (ACLU) through a request under the Freedom of Information Act, IRS agents haven't been compelled to obtain a warrant before sifting through a person's e-mails, text messages, and other digital communications. But the ACLU claims that such actions violate the Fourth Amendment to the US Constitution.

"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", said Nathan Wessler, an attorney for the ACLU. "And the content in our e-mails is just as private."

The rules remain cloudy because the laws regulating electronic privacy are vague and rather antiquated. The main federal legislation in this area, the Electronic Communications Privacy Act, was enacted way back in 1986 when Mark Zuckerberg was only two years old. Generally, the law protects e-mail that's unopened e-mail and e-mail communications that have been stored on a server for 180 days or less. In other words, any e-mail you've opened and kept in your files for more than six months might be fair game.

As avid watchers of TV crime dramas undoubtedly know, the Fourth Amendment protects US citizens against unreasonable searches and seizures by the government. In a landmark 2010 decision by the Sixth Circuit Court of Appeals (US v. Steven Warshak, et al., CA-6. 12/14/10), it was determined that probable cause is needed before the government can ask e-mail providers to release messages. The review conducted by the ACLU revealed that the IRS instructed agents that they could read e-mails without a warrant because the Fourth Amendment doesn't apply. But it's not clear if the IRS has revised its policies in the wake of the Warshak ruling. Thus far, the nation's tax collection agency has declined to comment on the matter. 

IRS staffers can also troll social media accounts for signs of cheating on tax returns. Yet the IRS maintains that its audit choices are based on information provided by tax filers – not bragging on Facebook or Twitter. Furthermore, IRS agents are prohibited from "stings" where they use fake profiles or otherwise try to deceive people into coughing up their tax secrets. Nevertheless, taxpayers should remain on high alert until these privacy issues are resolved.

"This question is too important for the IRS not to be completely forthright with the American public", Wessler was quoted as saying. "The IRS should tell the public whether it always gets a warrant to access e-mail 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."

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