IRS: Just Because We Said We Can Read Your E-mails Without A Warrant Doesn’t Mean We Did It

Last week, the American Civil Liberties Union published a 2009 IRS handbook in which the agency states that Americans “do not have a reasonable expectation of privacy in [e-mail] communications.” Yesterday, the IRS’s acting commissioner appeared before lawmakers to clarify the agency’s actual stance on the issue.

“The short answer is we are not taking that position,” explained acting commissioner Steven “not Steve” Miller, saying that regardless of what that leaked handbook states, the IRS holds to the 2010 ruling by the Sixth Circuit in U.S. v. Warshak that federal authorities must obtain a warrant in order to read someone’s e-mail.

“In the criminal context we seek a search warrant in advance of going to an ISP for e-mail content,” said Miller. “On the civil side we don’t have a policy that has us going to get [e-mails] anyway. We’re going clarify that in our procedures. In short, we are following Warshak.”

The acting commish added that this clarification will be made within the next 30 days.

As Ars Technica points out, the Warshak decision is the only high court ruling in this type of case. The laws currently on the books only require a warrant for unopened e-mail that was sent within the previous 180 days. Once an e-mail is opened, or once it has been 180 days since the message was sent, a warrant may not be needed.

Additionally, one could argue that the Warshak ruling is only binding in the four states comprising the Sixth Circuit. And in fact, in 2011, the General Counsel for the U.S. Dept. of Commerce said that “Warshak is the law only in the Sixth Circuit, and the U.S. government is determining whether to seek Supreme Court review [and] [u]ntil such time as the Court squarely addresses the issue, the law as to what protection the Fourth Amendment affords to the messages and other customer content transmitted and stored electronically will be unsettled.”

Though Miller testified that he knew of no instances in which the IRS had read e-mails without a warrant, the ACLU says that in 2011 — so this is post-Warshak — IRS investigative agents requested emails from an internet service provider without a warrant at least once. The IRS should explain when it started following Warshak nationally, and whether it has sought or obtained emails without a warrant in the past.

Furthermore, the ACLU has concerns about Miller’s comments to the Senate panel focusing solely on e-mail and not other forms of communication:

Although Miller stated that the IRS Criminal Investigation unit obtains warrants for all emails, he did not discuss other forms of electronic communication such as text messages, instant messages, and direct messages on social media. Under the Fourth Amendment, a warrant should be required for those private communications as well.
Miller stated that, to his knowledge, the IRS has not obtained electronic communications without a warrant in the past. But an internal IRS Chief Counsel Advice memorandum from 2011 reveals that, months after Warshak, IRS investigative agents requested emails from an internet service provider without a warrant at least once. The IRS should explain when it started following Warshak nationally, and whether it has sought or obtained emails without a warrant in the past.