If the IRS Obtains E-Mails without a Warrant, Then Will People Freak Out?

The ACLU recently FOIAed the IRS to find out whether its investigative branch gets warrants before rifling through people’s stored email. While the FOIA didn’t answer the question definitively (IRS lawyers have clearly discussed it), it appears that the IRS still trains people that — except in the Sixth Circuit, where an Appeals Ruling prohibits its — the Agency handbook still tells investigators they can rifle away.

Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.

However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.


Then came Warshak, decided on December 14, 2010. The key question our FOIA request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails. The first indication of the IRS’s position, from an email exchange in mid-January 2011, does not bode well. In an email titled “US v. Warshak,” an employee of the IRS Criminal Investigation unit asks two lawyers in the IRS Criminal Tax Division whether Warshak will have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replies: “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.” But that’s just the ECPA standard. The real question is whether the IRS is obtaining warrants for emails morethan 180 days old. Shortly after Warshak, apparently it still was not.

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.


Finally, to the present: has the IRS’s position changed this tax season? Apparently not. The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.

I’ve long wondered what it would take to get average Americans infuriated about the gutting of the Fourth Amendment.

Perhaps this — the strong evidence that the government’s tax collector can access your emails directly from your ISP without a warrant in most places (I’m in the Sixth but my emails are stored in Google servers elsewhere, so I wonder if even I am protected!) — will finally piss people off.

6 replies
  1. P J Evans says:

    I suspect most people are still in the mindset of ‘if you haven’t done anything wrong, you have nothing to worry about’.
    Certainly this isn’t getting much media coverage. (I assume that the government reads all my e-mail. But I’m not typical.)

  2. Marilyn says:

    You make a great point — this is something that people might view as possibly affecting them, since we all have the possibility of being audited by the IRS. But they won’t get upset about it until they know about it. So far, there doesn’t seem to be much MSM coverage.

  3. Snoopdido says:

    From an Atlantic “Mark Mazzetti: What I Read” interview today (http://www.theatlanticwire.com/national/2013/04/mark-mazzetti-media-diet/64040/):

    “Danger Room at Wired is really good. Stuff in The Atlantic I track. Things that are more specific, like The Long War Journal, which tracks drone strikes, I try to keep track of that. Lawfare, I read frequently. It tracks various legal questions surrounding counter-terrorism, and they’ve got a lot of very smart writers working on it. There are a number of bloggers that dig into these issues, like Marcy Wheeler. A lot of reporters will be reading her blog on these issues, to get a sense of her take.”

  4. guest says:

    CI (Criminal Investigation) are a bunch of cowboys at the IRS who wouldn’t know how to audit squat. They see themselves as law enforcement officers and they know shit about tax law. They are more interested in busting brothels and drug rings than tax fraud, because arguing tax law in court doesn’t have much “jury appeal”. Between the laws restricting IRS activity in ’98 and it’s own general timidity, few IRS audits get to the point of even issuing, much less enforcing a summons for records needed to actually sustain an audit adjustment in court. Which is why the self employed and the big corporations get away with anything and everything.
    Once an auditor finds evidence of crimes, they refer to CI for any further development (of the fraud aspects). An auditor on the civil side is not allowed to do criminal investigations. If CI at some point decides not to proceed, they turn the case back over to the civil side (usually with only weeks left on the statute of limitations). Any information CI obtains is not allowed to be used for the civil case (i.e. assessing tax). So normally they give cases back to auditors with most of the case disorganized and much of the information previously obtained by the civil examiners gone. Which is why auditors hate sending cases to CI and really don’t bother unless they have to, because it becomes a nightmare with a short deadline when it comes back.
    Of course this story is going to make life miserable for the civil side of auditing at the IRS (again). But the dumb cowboys don’t care. And in the end, if it gets people caring about the loss of our constitutional rights, that would be a good thing. But my bet is the result will just be an even less effective IRS due to more restrictions on everyone (not just CI).

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