Wednesday, May 15, 2013

IRS to Require Search Warrants for All Emails from ISPs (5/15/13)

There has been a brouhaha recently about the IRS accessing older emails on an ISP's site without a search warrant.  I previously wrote about the issue in this blog entry:  Are Emails Stored on the ISP's Computer Subject to Fourth Amendment Protections? (7/28/12), here, discussing the holding in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).  Briefly, the wording of the Electronic Communications Privacy Act of 1986 gave the IRS the argument that a warrant is not needed to obtain electronic communications older than 180 days,  That eventually caused a firestorm just recently.  As a result of the heat about the issue, the IRS has announced, here, the following policy statement:
Policy Statement 4-120 
Approved: May 3, 2013
(1) Policy Regarding Requests for the Content of Email Communications under the Electronic Communications Privacy Act and the Stored Communications Act.
(2) The IRS will follow the holding of United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), and obtain a search warrant in all cases when seeking from an internet service provider (ISP) the content of email communications stored by the ISP. Accordingly, such information will not be sought from an ISP in any civil administrative proceeding.
(3) Any existing IRS guidance that is not in accord with the foregoing policy statement will be updated. 
The following is from a TNT article discussing this development (Eric Kroh, IRS Says It Will Obtain Search Warrants for All Emails, 2013 TNT 90-2 (5/9/13)):
An IRS spokesman, when asked whether the May 8 statement applies to all electronic communications or to e-mails only, replied, "We are currently aware of and reviewing this issue, our policies, and our guidance, and will update them as appropriate."

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