IRS Warrantless Access to Emails -- The Issues (4/11/13)

There has been much hyperbole about the IRS allegedly accessing emails of private citizens without a warrant.  This arises from an ACLU FOIA request and analysis.  The analysis, titled New Documents Suggest IRS Reads Emails Without a Warrant (ACLU 4/10/13), by Nathan Freed Wessler, ACLU Staff Attorney, is here.  The documents are here.  An Accounting today article, Michael Cohn, IRS Reads Taxpayer Emails Without a Warrant (Accounting Today 4/11/13), is here.  The ACLU FOIA request arose out of a case I had previously written on, United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), here, reh'g and reh'g en banc denied, 2011 U.S. App. LEXIS 5007 (6th Cir. 2010), in two blogs:  Are Emails Stored on the ISP's Computer Subject to Fourth Amendment Protections? (7/28/12), here; and Are Kastigar Hearings Required Beyond Compelled Testimony Situations (7/30/12), here.  I refer readers to the first of my blogs (the one dated 7/28/12) for a detailed discussion of the legal issues swirling around this issue.

Excerpts from the Accounting Today article:

After the Warshak decision, the IRS’s position did not appear to change. In an email exchange in mid-January 2011 on the subject of “U.S. v. Warshak,” an employee of the IRS Criminal Investigation unit asked two lawyers in the IRS Criminal Tax Division whether Warshak would have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replied: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.” 

In an indication that the IRS was considering the impact of the Warshak decision, an October 2011 IRS Chief Counsel Advice memorandum, which is available on the IRS Web site, an IRS employee asked for guidance about whether it was proper to use an administrative summons, instead of a warrant, to obtain emails that are more than 180 days old. The memo summarized the Warshak ruling and said that “as a practical matter it would not be sensible” to seek older emails without a warrant. However, the memo contended that Warshak applies only in the Sixth Circuit, but that, because the Internet Service Provider had informed the IRS that it did not intend to voluntarily comply with an administrative summons for emails, there was not “any reasonable possibility that the Service will be able to obtain the contents of this customer’s emails . . . without protracted litigation, if at all.”

“Any investigative leads contained in the emails would therefore be ‘stale’ by the time the litigation could be concluded, making attempted warrantless access not worthwhile,” Wessler wrote. “The memo misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it. Instead, the memo’s advice (which may not be used as precedent and is not binding in other IRS criminal investigations) is limited to situations in the Ninth Circuit where an ISP intends to challenge warrantless requests for emails. The IRS shouldn’t obey the Fourth Amendment only when it faces the inconvenience of protracted litigation; it should recognize that the Fourth Amendment requires warrants for the contents of emails at all times.” 

Wessler noted that up to the present, the current version of the Internal Revenue Manual, also available on the IRS Web site, continues to explain that no warrant is needed for emails stored by an ISP for more than 180 days.

The article also addresses the IRS's access of social media such as Facebook.  In this regard, postings on Facebook or other such social media should have no reasonable expectation of privacy; hence, they are not subject to Fourth Amendment protections and the IRS may access them.

Apparently, the chair of the House Ways and Means Oversight Subcommittee has taken an interest has asked the IRS to explain its policies and practices.

I would suspect that, except in narrowly limited cases, the usefulness of access to emails 180 days old or greater may be quite limited and hence that the IRS does not make significant use of this "opportunity."  Nevertheless, now that the can has been opened, a lot of people will see if it is full of worms.