Wednesday, April 17, 2013

IS THE IRS READING EMAILS WITH A SEARCH WARRANT?

Last week, the ACLU created a stir when it suggested that the IRS may be reading taxpayers’ emails without obtaining a search warrant. Read more about that from the ACLU here. At least at some point in time in the past, according to the IRS’ 2009 “Search Warrant Handbook,” the IRS believed that the Fourth Amendment protections against unreasonable searches and seizures did not apply to email messages stored on a server.

Under the federal Electronic Communications Privacy Act, email stored on an email provider’s server can be obtained without a warrant if it has been on the server for more than 180 days or has been opened. However, the Sixth Circuit Court of Appeals in U.S. v. Warshak in 2010 requires a probable cause warrant before compelling email providers to turn over messages.

However, the head of the IRS told a Senate finance committee yesterday (April 16) that the agency does require a warrant before requesting emails from an internet provider. However, the ACLU still indicates there are open questions, such as whether the IRS only seeks a warrant for emails under 180 days old, whether it acts differently when it is in jurisdictions outside of those in the Sixth Circuit Court of Appeals, and whether it seeks a warrant for other electronic communications such as text messages and private massages on social media sites such as Facebook and Twitter.

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