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IRS reverses course on warrantless email snooping

Facing tough criticism from privacy advocates, the head of the IRS announced Tuesday that his agency would be abandoning a controversial policy that claimed the authority to access taxpayer e-mails without a warrant.


Tim Sampson

Internet Culture

Posted on Apr 17, 2013   Updated on Jun 1, 2021, 6:17 pm CDT

Facing tough criticism from privacy advocates, the head of the IRS announced Tuesday that his agency would be abandoning a controversial policy that claimed the authority to access taxpayer emails without a warrant.

Speaking before the Senate Finance Committee Tuesday, acting IRS Chief Steve Miller renounced a series of agency memos leaked last week that said taxpayers enjoyed “generally no privacy” in their emails and private social media messages, and thus were subject to search without probable cause. Under pressure from senators’ questions, Miller said the IRS would abandon its policy of unwarranted email searches within 30 days, although he did not make the same assurances regarding private social media communications.

“The short answer is we are not taking that position,” Miller said in response to questioning from Sen. Chuck Grassley (R-Iowa), according to The Hill.

The issue of taxpayer privacy came to the Senate and public’s attention last week after the American Civil Liberties Union published several internal documents from the IRS, outlining the agency’s policy regarding electronic communications. These documents indicated that the agency was still operating under investigatory rules established by the 1986 Electronic Communications Privacy Act, which, among other things, declared that opened emails or emails more than 180 days old were fair game for government investigators to obtain without demonstrating probable cause.

But the ACLU and other privacy advocates say this policy was made defunct by the 2010 federal appeals court ruling in U.S. v. Warshak, in which it was determined that Americans have “a reasonable expectation of privacy” in their email. Major email providers, including Google, Microsoft, Yahoo and Facebook have argued that Warshak’s verdict requires warrants to examine emails.

However, the documents obtained by the ACLU showed that the IRS’s policy remained the same even after Warshak. The 2011 edition of the agency’s manual on obtaining warrants for the criminal investigation division states: “Investigators can obtain everything in an account except for unopened e-mail or voicemail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. The manual continued to base this policy on the Electronic Communications Privacy Act with no mention of the Fourth Amendment. That position was reiterated in another IRS memo issued nearly a full year after the Warshak verdict.

This policy revelation drew ire from critics on both sides of the the political divide. That was reflected in Tuesday’s senate hearing, where Miller faced the toughest questions from a pair of bipartisan lawmakers—Sens. Grassley and Ron Wyden (D-Ore.). It was only after scrutiny from these two that Miller ultimately vowed to abandon the policy. However, the acting director was less clear on the issue of private messages sent over Twitter or Facebook, telling Grassley he “didn’t know” the agency’s policy. This comes at the same time as reports that the IRS is in the habit of publicly searching taxpayers’ Facebook and Twitter feeds for evidence of tax evasion.

Shortly after Miller’s testimony, the ACLU came out in favor of the email rule change while still pushing hard for answers regarding social media.

“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,” an ACLU statement reads. “Under the Fourth Amendment, a warrant should be required for those private communications as well.”

Photo via USA Today

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*First Published: Apr 17, 2013, 1:40 pm CDT