Two of the headline scandals that have hit the Barack Obama administration in recent days could be about to come together – the IRS and the invasion by government of private communications.
At least that’s the way it looks, based on a report from the activist group ACLU, where staff attorney Nathan Wessler recently wrote that the most feared federal agency believes it has the right to access private emails.
The recent scandals are creating a huge wall for the Obama administration in its efforts to move its agenda forward. In brief, Congress is investigating now why the IRS deliberately targeted conservative and tea party organizations over the last three years with what some recipients have described as harassment when they applied for a tax status.
Secondly, the Department of Justice has been gaining access to journalist’s telephone records without telling them when it suspects a leak of information to the media.
Now comes the report from Wessler, who explained that the IRS long has held the position that it can obtain and read a person’s emails – essentially without permission, without a warrant and without even notification.
The recent report from Wessler explained how the ACLU sought information about the IRS through the Freedom of Information Act.
“So does the IRS always get a warrant? Unfortunately, while the documents we have obtained do not answer this question point blank, they suggest otherwise,” Wessler wrote.
He explained the Electronic Communications Privacy Act, which was written when people likely still paid bills by mailing a check and communicated with family through letters, is “hopelessly outdated.”
“It draws a distinction between email that is stored on an email provider’s server for 180 days or less, and email that is older or has been opened,” he wrote. “The former requires a warrant; the latter does not.”
He said a court decision, from the 6th U.S. Circuit Court of Appeals in United States v. Warshak, ordered that the government must obtain a probable cause warrant before compelling email providers to turn over information.
But that actually is a requirement in only the 6th Circuit, he noted.
The report said the IRS documents that were obtained show the IRS before the court opinion had a policy “to read people’s email without getting a warrant.”
In fact, the IRS believes the Fourth Amendment doesn’t really mean anything in that context, the report said.
For example, the “Search Warrant Handbook” from the lawyer of the agency’s criminal tax division, asserted “The Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because Internet users do not have a reasonable expectation of privacy in such communications.”
A subsequent IRS memo, the report said, explained the court ruling applies only in the 6th Circuit.
A report from the World Privacy Forum, dated only a few years ago, also warned that information “stored by a business or an individual with a third party may have fewer or weaker privacy or other protections than information in the possession of the creator of the information.”
It found that “both government agencies and private litigants may be able to obtain information from a third party more easily than from the creator of the information.”
“To the present,” wrote Wessler, “Has the IRS’ 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,” Wessler said.
“Let’s hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails. Until now, that hasn’t been the case. The IRS should let the American public know whether it obtains warrants across the board when accessing people’s email. And even more important, the IRS should formally amend its policies to require its agents to obtain warrants when seeking the contents of emails, without regard to their age,” Wessler said.
The circumstances have created a market for alternatives to keeping information on email servers and other points. Companies such as CloudLocker offer products that allow consumers to store virtually unlimited data at home.
The company’s advocates explain, “Instead of keeping your files on some unknown server in who knows where, everything stays on your CloudLocker in your home or office. … You don’t send copies of your files .. the files stay on your CloudLocker and you merely send a link to the original file.”