IRS Refutes Breach of Privacy Claims

On Friday, the IRS refuted comments made by the ACLU about its willingness to review emails and social media sites in an effort to identify indications of tax evasion.

“Respecting taxpayer rights and taxpayer privacy are cornerstone principles for the IRS,” the agency released in a statement.  “Our job is to administer the nation’s tax laws, and we do so in a way that follows the law and treats taxpayers with respect.  Contrary to some suggestions, the IRS does not use emails to target taxpayers.  Any suggestion to the contrary is wrong.””

The statement came as a direct response to documents revealed last week by the American Civil Liberties Union, internal documents obtained by the ACLU under the Freedom of Information Act.  The internal IRS documents indicated to IRS agents that they did not need to obtained warrants in order to search people’s email, texts messages, or various social media accounts.

According to the ACLU and other privacy organizations, the approach taken by the IRS violates the Fourth Amendment and the search and seizure rights that amendment provides to all Americans.

The specific document in question is an IRS employee handbook dated from 2009.  In this handbook, the IRS notes that the Fourth Amendment does not apply to certain electronic communication because individuals do not “have a reasonable expectation of privacy in such communications.”

In 2010, an attorney for the IRS supported the approach noted in the handbook.  Even the current version of the IRS’ manual found online indicates that emails older than 180 days are not protected by the Fourth Amendment and the need for a warrant for the IRS to review such messages.

The conflict lies in the wording within the Electronic Communications Privacy Act.  According to the ECPA, email that has been opened or that is older than six months does not require a warrant in order for the government to search such messages.

Therefore, while the IRS may technically be complying with privacy laws related to email and social media, it remains debatable on if these actions can be considered respectful of taxpayer privacy rights.

In 2010, the United States Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that the Fourth Amendment protected email regardless of the age of that email.  In addition, the review of such email by authorities must have a reasonable basis that such review would produce evidence of a crime.

However, the language in the ECPA has not been updated and remains inconsistent with the appellate court ruling.  In addition, the IRS’ approach to ensure privacy seems to indicate they will obtain a warrant only when reviewing emails less than 180 days old, indicating emails older than 180 are fair game to IRS scrutiny without a warrant.

Members of Congress have proposed new legislation that would remove the 180-day clause from the ECPA.  Members of the Justice Department  have expressed support of this change, indicating there is “no principled basis to treat email less than 180 days old differently than email more than 180 days old.”

Despite the IRS’ approach to privacy, some email providers, including Google, are not responding to IRS requests for emails unless they are supported by a warrant, even when the emails are more than 180 days old.

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.