The Internal Revenue Service claims that it has the right to read the private emails, text messages and other electronic communications without a warrant because, the agency claims, Americans have no reasonable expectation of online privacy.
The revelation comes from a Freedom of Information Act request for information pertaining to the IRS policy for conducting investigations of tax crimes. In a 247-page response, the IRS provided a vague answer to the question of whether it conducts warrantless searches of email inboxes and other electronic communications, which erred on the side of “yes.”
The outdated Electronic Communications Privacy Act (ECPA) distinguishes between email that is stored on an email provider’s server for 180 days or less and requires a warrant for searches and email that is older or has been opened and does not require a warrant for searches.
In 2010, the 6th U.S. Circuit Court of Appeals decided in United States v. Warshak that the government must provide obtain a warrant for any search; but the IRS doesn’t specify whether it follows the ruling.
From the American Civil Liberties Union:
The documents the ACLU obtained make clear that, before Warshak, it was the policy of the IRS to read people’s email without getting a warrant. Not only that, but the IRS believed that the Fourth Amendment did not apply to email at all. A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts that “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.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “4th Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.
The most current version of the IRS handbook states expressly that the agency still concedes that it isn’t required to obtain a warrant in order to search emails older than 180 days.
The ACLU sent similar requests for information about warrants and electronic communication to the FBI and the Justice Department, but no reply has been received.
Currently, Congress is working on updating the ECPA in order to secure Americans 4th Amendment rights in electronic communications.