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Now that President Biden and congressional Democrats have shoveled $80 billion in additional spending to supersize the IRS, scrutiny of the agency is more important than ever. One unresolved question is whether or not the IRS gains access to your emails without a warrant.

The IRS has an abysmal record on privacy. Some of its privacy violations appear to be intentional while others seem to stem from incompetence. In the most recent incident, the IRS said it accidentally published the confidential data of over 120,000 taxpayers and left it on its website for months

The IRS and Biden Treasury Department have left the public in the dark regarding a supposed investigation into the theft and leak of thousands of high-income returns spanning a period of 15 years. The breadth of the theft means it is plausible the thief has comprehensive, top-to-bottom access to every Americans’ private tax information.

The private taxpayer files were presented on a platter to the progressive organization ProPublica well over a year ago. Treasury Secretary Janet Yellen and IRS Commissioner Charles Rettig have repeatedly failed to provide any information on the status of any “investigation.”  

Taxpayer privacy is just not a priority for the IRS. This has been borne out over decades of countless leaks and screwups.

This brings us back to the email privacy question as the IRS ramps up large numbers of fishing expedition audits of households and small businesses.

The IRS Criminal Investigations Division long took the position that your Fourth Amendment rights don’t apply to your personal emails. This excerpt comes from a 2013 ACLU report into IRS practices:

“New documents released to the ACLU under the Freedom of Information Act reveal that the IRS Criminal Tax Division has long taken the position that the IRS can read your emails without a warrant—a practice that one appeals court has said violates the Fourth Amendment (and we think most Americans would agree). 

Referencing a landmark legal case, ACLU said:

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.

One of the highest courts in the United States ruled that IRS practices are unconstitutional. However, the IRS could have immediately complied with the Sixth Circuit’s order nationwide after the ruling, but appears to have not done so, per ACLU: 

The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. Again, no suggestion that the Fourth Amendment might require more.

The ACLU’s alarming report found that the lack of respect for your privacy extends to reading your emails, text messages, and social media direct messages without a warrant: 

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 IRS asserted that it could snoop on your inbox, so long as the messages have been opened and are older than six months. The Electronic Communications Privacy Act of 1986, better known as ECPA, only protects your electronic communications for 180 days after they are sent. And then the IRS appears to have hand-waved away any Fourth Amendment considerations.

In 1986, text messaging had not been invented and email was in its infancy. While ECPA has yet to be properly reformed, the U.S. Constitution and its amendments are the supreme law of our land, and the IRS chose to trample those rights in favor of a technicality which should have been fixed decades ago. 

The IRS was directed to end these practices in 2010 when United States vs. Warshak ordered them to get a probable cause warrant before seizing emails from Internet Service Providers. According to previous IRS Commissioner Steven T. Miller, the DOJ also ordered the IRS to apply Warshak across the country. 

Miller testified in April of 2013 that the IRS adheres to the Warshak ruling across the country. Sen. Ron Wyden (D-Ore.) pressed Miller for a public statement clarifying that the IRS would not snoop on Americans’ electronic communications without a warrant.

Wyden asked, “When will we actually get a public statement that the agency will not seek to obtain electronic communications without a warrant?” Not getting a confident enough answer, Wyden pressed, “Can you commit to having this done within thirty days?” Miller replied: “I’ll use my best efforts. I think we can do that, yes.” 

But almost exactly 30 days after the testimony, the Lois Lerner scandal was revealed, in which the IRS was found to have targeted conservative groups. It does not appear the promised statement on email snooping ever materialized.

As noted by the ACLU:

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.

So where does that leave us? Does the IRS still snoop, or not? Will they snoop in the future after hiring tens of thousands of new agents?

ACLU noted the hard power of the IRS:

Let’s hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails.

Communication continues to move online and our privacy laws must reflect that shift. But the IRS has shown it cannot be trusted to respect the privacy of those it serves. 

Under oath, Yellen should answer detailed questions on current and future IRS email privacy practices, and the IRS and the Department of Treasury must produce written documentation that they will not begin to snoop again – without a warrant – ever again. Americans deserve such a commitment.