Internal Documents Indicate IRS Still Invades Email, Social Media Privacy

According to internal documents obtained from the Internal Revenue Service, the agency believes it has the right to review emails, text messages, social media sites, and other electronic messages from individuals in an effort to identify those evading payment of federal income tax.

The American Civil Liberties Union, or ACLU, obtained the documents under the Freedom of Information Act, which requires public disclosure of certain government documents.

The documents clearly guide IRS agents to review what is otherwise normally consider private information without first obtaining a warrant.

According to a representative from the ACLU, this directive from the IRS violates the Fourth Amendment, protecting citizens from illegal search and seizure.

However, the IRS’ position is that the Fourth Amendment does not apply to emails and certain other electronic communications because there is not a reasonable expectation of privacy related to such messages.  The IRS has specifically noted it is able to exercise this right for emails held by an Internet storage provider that are over 180 days old.

Some members of Congress responded to the documents.

“This is an affront not only to our system of checks and balances but also to our fundamental right to privacy,” noted Colorado Democratic Senator Mark Udall.  Udall indicate that he believes Congress should change the Electronic Communications Privacy Act, or ECPA, to ensure it clearly addresses this topic.

The ECPA is intended to govern the access law enforcement has to electronic communication.  However, it was written at a time when emails were not used as prevalently as it is today.  In its current version, the ECPA indicates emails that have been opened or are older than six months in age may be viewed without first obtaining a warrant.

“In the meantime, I urge the IRS to reconsider its overreach,” continued Udall.

The ACLU has previously reviewed IRS agent actions when allegations surfaced in 2012 that the IRS was reviewing Facebook posts and other social media without obtaining court permissions.  The ACLU and other privacy groups asserted at that time that the IRS must have probable cause and obtain a search warrant before conducting such reviews.  But the IRS has continued to instruct agents in its criminal division that warrants are not necessary.

“This question is too important for the IRS not to be completely forthright with the American public,” commented ACLU lawyer Nathan Wessler.  “The IRS should tell the public whether it always gets a warrant to access email and other private communications in the course of criminal investigations.  And if the agency does not get a warrant, it should change its policy to always require one.”

Responses from citizens were mixed on the topic.  Some were surprised that the IRS would take such steps, considering it an invasion of privacy and a violation of their rights.  Others fell on the opposite end of the spectrum, not being surprised the IRS would use whatever measures they believed they could get away with if it meant the collection of more tax revenue.

The IRS did not respond to requests for comment on the subject.

by Mark Johnston

Mark has been a contributor to legal web sites related to bankruptcy, tax, and criminal law since 2011. He has an Accounting degree from Texas A&M University.