By Thomas Scott
Memos from the IRS, which recently got into the hands of the American Civil Liberties Union (ACLU) have caused a stir over what many believe is a violation of the American people’s privacy.
Apparently many of the documents, which the ACLU received via a Freedom of Information Act request, allude to what the tax collection agency calls “non-consensual electronic monitoring.”
According to Nathan Wessler, an attorney and blogger for the ACLU, the Electronic Communications Privacy Act (ECPA) which was passed in 1986 “is hopelessly outdated.”
Wessler’s analysis references a slew of documents obtained by the ACLU; including a Search Warrant Handbook from 2009, which originated in the Office of Chief Counsel within the Justice Department’s Criminal Tax Division.
The handbook states that “a warrant is generally required if the target has a reasonable expectation of privacy,” and that “if access to files is limited by a password or other means, there may be a reasonable expectation of privacy.”
This means that if the public makes use of e-mail encryption, a practice which the IRS itself engages in, then their e-mails might not be subject to warrantless examination.
According to an e-mail exchange handed over to the ACLU, an attorney with Chief Counsel Financial Institutions and Products at the IRS stated that the agency has “always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.”
The lawyer was answering a question from an employee of the IRS’s Criminal Investigation Division about the implications of U.S. v. Warshak, a 2010 decision in which a federal appellate court ruled that the government did not comply with constitutional protections against unreasonable searches and seizures when it forced an ISP to turn over e-mails without a warrant.
Regarding older e-mails, Wessler writes that the IRS’s “current version of the Internal Revenue Manual … continues to explain that no warrant is required for e-mails that are stored by an ISP for more than 180 days” as is acceptable under the ECPA.
Companies such as Google and Facebook have interpreted the Warshak ruling to mean that Americans have a reasonable expectation of privacy in their two-way communications online.
If investigators want access to Americans’ Facebook or Gmail exchanges, they will most likely need a warrant.
But Internet users shouldn’t be shocked about the lack of privacy online, said Ben Berger ‘15.
“People say: ‘I don’t want Big Brother tracking me’ and I say there’s two thoughts on this. Number one is: ‘I don’t care about Big Brother tracking me because I have nothing to hide.’ The problem is, what if you do have information to hide? Well then in some sense you shouldn’t be allowed to hide it.”
However, Berger contends that “civil liberties have been restricted in the post-9/11 world.”
“This is an issue bigger than technology,” he said.
Wessler seems to hold a similar sentiment, writing that Americans “should be able to trust that the Internal Revenue Service will obey the Fourth Amendment when it seeks the contents of [their] private e-mails.”
Lawmakers from both parties have spoken out, demanding answers from the IRS about how well it ensures the privacy of America’s taxpayers.
Senator Mark Udall (D-CO) conveyed, “serious concerns about the IRS’s recent comments that it can search and seize citizens’ e-mails, Facebook posts, tweets and other digital communications without a warrant.”
Udall said, “Congress must make strengthening [U.S] privacy laws a top priority” and that he will support “bipartisan efforts to overhaul the Electronic Communications Privacy Act.”
Congressman and Chairman of the House of Representatives’ Oversight Committee Charles Boustany (R-LA) sent a letter to the acting commissioner of the IRS, seeking clarification on the agency’s “current policy on searching taxpayer e-mails” as well as the type of data they “would seek in a search of a taxpayer’s online social media profiles.”
Boustany gave commissioner Steve Miller until April 26 to respond with the requested information.
The IRS’s actions certainly warrant attention as the topic of civil liberties online returns again.