IRS Backs Down on E-mail Snooping but Not Posts or Tweets

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By Ken Berry

The IRS is changing its controversial policy of accessing taxpayer e-mails without first obtaining a warrant, but it’s not making any promises regarding social media postings on sites like Facebook and Twitter.

Just last week, the American Civil Liberties Union (ACLU) released memos and other documents indicating that the IRS operates under the premise that Americans “do not have a reasonable expectation of privacy” in e-mail communications. On April 17, IRS Acting Commissioner Steven Miller, who has been heading up the nation’s tax collection agency since Doug Shulman stepped down last November, told a Senate committee he has no knowledge of the IRS ever snooping into e-mails without a warrant. Nevertheless, Miller said that the policy will be ditched within the next thirty days.

Until the Senate hearing, the IRS had declined to comment on the release of the documents by the ACLU. But now the matter of electronic surveillance is front and center. 

“The short answer is we are not taking that position [that Americans don't have a reasonable expectation of privacy for their e-mail],” said Miller. He also noted that the IRS follows the verdict handed down in US v. Warshak, a landmark 2010 case from the Sixth Circuit Court of Appeals (US v. Steven Warshak, et al., CA-6, 12/14/10). In Warshak, it was determined that probable cause is needed before the government can ask e-mail providers to release communications.

According to Miller, the IRS requires agents to obtain a search warrant in advance when it conducts criminal probes requiring access to a taxpayer's e-mail records. However, Miller told Senator Chuck Grassley (R-IA) that he didn't know if that holds true for private communications exchanged on social media sites.

Under the 1986 Electronic Communications Privacy Act (ECPA), the controlling federal law in this area, authorities can obtain e-mail messages that are more than 180 days old with an administrative subpoena, known as a 2703(d) order, without showing probable cause. But the ECPA was enacted back in 1986, practically the Dark Ages in terms of technology. 

An update to the IRS manual in March 2011, which was published four months after Warshak, states 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. A similar position was adopted in an October 2011 memorandum by IRS senior counsel William Spatz.

National Taxpayer Advocate Nina Olson, who serves at the IRS at the behest of US taxpayers, told the Senate she wasn’t consulted on the IRS e-mail policy. "Regrettably that memo was not shared with me prior to it being made public – nor was it circulated for my comments", said Olson. "It might have looked different if the voice of the taxpayer had an opportunity to comment on it."

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