IRS controversy: ACLU takes aim at email privacy issue

HOMEWOOD, Ala. (WIAT) – The IRS isn’t just interested in receipts, earnings statements, and other financial documents- if the agency suspects you of fraud or tax evasion.

In that case you’re social networking habits and emails may be part of the investigation.

An ACLU attorney writes that the IRS criminal tax division has long taken the position that the agency can read your emails without a warrant, but in 2010 the 6th Circuit Court of Appeals said that practice violates the Fourth Amendment.

Should emails that you’ve already opened or had in your inbox for more than six months be up for grabs without a warrant?

In the report, Staff Attorney Nathan Wessler with the ACLU Speech, Technology, and Privacy Project outlines multiple occasions when the IRS has argued that internet users do not have a reasonable expectation of privacy in those communications.

The following italicized text comes from the Internal Revenue Manual  concerning the Judicial Process for Obtaining Stored Electronic Communications, Transactional Information, and Subscriber Information.

If the contents of a wire or electronic communication have been in storage for 180 days or less, the government must obtain a search warrant, based on probable cause, to obtain access to the contents. Notice to the subscriber or customer is not required. 

The government may obtain the contents of an electronic communication that has been in storage for more than 180 days using a search warrant, a court order issued under 18 USC §2703(d), or a grand jury subpoena or administrative summons. Notice need not be given to the subscriber if a search warrant is used to obtain the information. The statute requires that the customer or subscriber to whom the information pertains be notified if the government obtains a court order or issues a subpoena or summons for the information. That notice may be delayed for up to ninety days pursuant to 18 USC §2705. (This initial 90-day period can be extended for an additional 90-day period upon application to the court for an extension under 18 USC §2705(4).) Exhibit 9.4.6 – 1 is a sample of a 18 USC §2703(d) Order.

Source: IRS.gov/irm

After hearing of the controversy while relaxing at a Homewood, Alabama coffee shop, internet user Hanh Vu is uncomfortable at the very thought of someone pouring over her inbox.

“Just the idea of somebody looking at my email is a little, I don’t like that and that’s the whole point of the password. What’s the point of it if they’re just going to go in and look?” said Hanh Vu, Homewood.

A 2009 training course reportedly obtained by the Electronic Frontier Foundation through a FOIA request- sheds light on how the IRS may use internet tools to locate taxpayers and learn about their online business activities.

It lists an example where a revenue officer Googled a taxpayer’s name and discovered the person used a social networking site to advertise as a comedian.

It explains that a schedule of future performances and list of previous appearances could be used to find out how much the taxpayer was paid, where those payments were deposited- and  where the person will be if they need to track them down.

We contacted the IRS to find out how often these types of requests are made by IRS investigators and what steps are taken when they are.

The IRS issued this response:

 Respecting taxpayer rights and taxpayer privacy are cornerstone principles for the IRS. Our job is to administer the nation’s tax laws, and we do so in a way that follows the law and treats taxpayers with respect.   Contrary to some suggestions, the IRS does not use emails to target taxpayers. The IRS does not randomly search or review taxpayer emails or social media. Any suggestion to the contrary is wrong.

 -IRS Statement

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