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< | Taxes | >
> | The Reasonable Expectation of Privacy in Emails | | | | |
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< | As early as the Boston Tea Party, where Americans banded together to toss tea into the river as a protest unfair British taxes, taxation has been a delicate, and sometimes contentious, subject for US citizens. | >
> | A few days before the close of the 2013 tax season, the ACLU released an article revealing documents that indicated that it was the position of the Internal Revenue Service that the agency was allowed to read certain taxpayer emails without a warrant. While the ACLU conceded that the documents were not conclusive of the agency’s current position, it noted that the IRS was not being “completely forthright.” In response, the IRS released a short statement that said that it was their policy to obtain a court ordered search warrant prior to accessing emails in a criminal investigation. The agency further elaborated that it would review its policies, “to resolve any remaining confusion.” As the agency “updates” its policies, which at least at some point seemed to comport with the ACLU’s contentions, this paper opines that there is a reasonable expectation of privacy in regards to emails. If further concurs with the sixth circuit opinion in United States v Warshak that the Fourth Amendment compels the agency to seek a warrant prior to reviewing this type of electronic taxpayer communication. | | | | |
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> | ACLU contentions | | | | |
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So late as that? See John Phillip Reid, The Constitutional History of the American Revolution: Tax.
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> | Despite the brief statement from the IRS, the ACLU presented documentation in which the IRS repeatedly suggests that there was no legal protection of certain categories of emails. According to the IRS documents produced by the ACLU, this was almost certainly the case prior to United States v. Warshak (discussed below) where the agency issued statements such as, “the Fourth Amendment does not protect...email messages stored on a server, because internet users do not have a reasonable expectation of privacy in such communications” and “the government may obtain the contents of electronic communication that has been in storage for more than 180 days without a warrant.” The question for the ACLU, therefore, was whether, post-Warshak, the agency had continued to engage in such behavior. | | | | |
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> | United States v. Warshak and The Electronic Communications Privacy Act (ECPA) | | | | |
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< | While many US citizens would likely concede that taxes are necessary for the adequate function of government, it is equally true of our American ethos that we expect the taxation powers of government to be carried out in a fair and constitutional manner. At the heart of the Boston Tea Party protest, for instance, was the refusal of Americans to be taxed without being adequately represented, the latter of which is a constitutional right. | >
> | The ACLU bases much of its position on the relevance of the court’s holding in United States v. Warshak, 631 F.3d 266(2010). Warshak was a sixth circuit case in which the defendant appealed several fraud convictions for his role in connection with running a herbal supplement distribution company. In the case, the United States Court of Appeals held that the defendant’s Fourth Amendment rights were violated when his Internet Service Provider was forced to turn over his emails without a warrant. | | | | |
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> | The ACLU report also raised and summarily dismissed taxpayer’s protection under the ECPA, which it referred to as “hopelessly outdated.” Enacted in 1986, the Act distinguished email that was stored on a third party’s server for over 180 days from newer emails. The former was considered to be abandoned under the Act and as such, no warrant was required to garner access to such information. | | | | |
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Unless you live in Washington, DC? Are you sure the distinction between actual and virtual representation, which seems important in 1774 but which has nothing to do with contemporary political discussion, is part of the subject you are writing about here.
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> | Some of the provisions of the ECPA would certainly seem puzzling to modern observers. With the advent of email service providers that give individuals access to relatively large quantities of storage space for free, many people store email on third party servers for long time periods; it is difficult to see why an email that is over 180 days old should be treated differently from its younger counterparts. Thus the legislation seems to lack the bite that would protect taxpayers from an IRS policy that sought to gain access to their emails. Indeed, the deadline to file taxes is already over 90 days after the end of the preceding calendar year; in the unfortunate event of a criminal investigation, there is a substantial likelihood that many important emails might surpass the 180 day threshold. | | | | |
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> | The Fourth Amendment | | | | |
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< | Recently, the American Civil Liberties Union reported that they believed that the nation's largest tax collection body- the Internal Revenue Service-might, however, be engaging in some questionable, if not unconstitutional behavior, in their efforts to collect taxes from United States citizens. Indeed, the ACLU recently reported that the IRS, as a matter of policy, accessed taxpayers emails without a warrant when conducting criminal investigations. The ACLU cited correspondence from the IRS that contended that this was because the fourth amendment does not cover emails. The following analyzes the alleged actions of the IRS in light of the fourth amendment and concludes that such actions should be construed by the courts and the public to constitute an infringement of Americans' fourth amendment rights. | >
> | Whatever the laxity of the ECPA and the jurisdictional limitations of United States v. Warshak, the Fourth Amendment promises more taxpayer protection. It reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." Of course, being written in the 18th century, the amendment makes no mention of email and so considerable analogy is often employed to make the amendment applicable to the modern era. The courts, particularly in United States v Warshak have addition used the language of “expectation of privacy” with the question being: do individuals have an expectation of privacy when their data is stored on a third party server? | | | | |
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> | In United States v. Warshak, the court answered this question: yes. They cite the defendant’s contention in his brief that his “entire business and personal life was contained within the emails seized.” Moreover, the court noted the damning nature of Warshak’s communications and concluded that people do not usually put their dirty laundry out for the public to view. Undoubtedly, many Americans can sympathize with Warshak’s statement. Why else do we give our email accounts passwords? Why was the public so outraged at the thought that the IRS might be accessing their emails without a warrant? Indeed, emails are often quite personal in nature in that they often reflect our deepest thoughts and most sensitive communications. There is also an argument that much of the content of "papers and effects" mentioned in the Fourth Amendment may now take place electronically. Indeed, whereas people may have kept their tax returns and related correspondence on paper in the past, the government itself has even supported the move towards increasingly using the internet and third party servers. Users are encouraged, for instance, to file their returns online and can email questions to the IRS. | | | | |
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< | Derivatively, only,
because if the ECPA permits the Service to do what it does,
Congress has made the searching reasonable, and the Fourth
Amendment is not offended.
As noted in the New York Daily News story relaying the ACLU's accusation,
To which you don't link? Why are you taking the Daily News on the subject of what ACLU thinks instead of reading what ACLU said?
the statute that is supposed to cover activities such as that described above is the Electronic Communications Privacy Act. However, the report also notes that the Act only covers unopened emails or those that are more than 180 days old.
That's a misstatement of law. Did you read the statute?
While the Act would ideally have more expansive coverage, the IRS' activity may, more importantly, violate the the Fourth Amendment, which reads, " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The text of the amendment establishes that Americans are protected against searches of their papers and effects in their house. Of course, being written in the 18th century, the amendment makes no mention of email. However, the fact remains that were the contents of email written on paper and kept in the home, they would be protected. Why is email, therefore, different, at least as per the IRS' view?
The correct analogy
would be to physical papers stored on third-party premises, and
accessible to the owner of the premises. Why would the Fourth
Amendment prohibit a search with the consent of the third party
under those circumstances?
The New York Daily News reports that IRS counsel has said that users have no expectation of privacy when their electronic data, such as email, is stored on servers.
Why are you relying on
one tabloid source to determine the legal position of a government
agency? If the Service has taken a legal position, in what
documents has it taken that position, and can we please have a link
to them? If the only evidence of the Service position is a
statement to a reporter, could we at least have a quotation rather
than a paraphrase? It's not very reliable, is it, to depend upon a
mechanism like The New York Daily News to provide precise legal
information?
The theory behind this argument is that servers are owned by a third party and there can be no expectation of privacy where a third party is involved. The article elaborates that this "right" of the IRS to obtain and use electronic communications and expression may also extend to Twitter and other forms of social media. Of course, the IRS suggests that it will choose to conduct audits on the basis of tax returns and not social media, but are the American people willing to trust a government agency with their personal communications, especially one with broad taxation powers, as well as the ability to exact civil and criminal penalties?
Another aspect of the IRS' activity that is troubling is its alleged flaunting of the requirement of a warrant. Indeed, the Fourth Amendment allows government to engage in certain invasive activities provided that the government obtains a warrant.
The purpose of the warrant is to protect US citizens from precisely the type of activity that the IRS is undertaking. A warrant requires a judge to review the evidence and establish that the search is reasonable. The point of the Bill of Rights is to protect citizens from unreasonable government intrusion. This would seem to be particularly applicable in the case of the IRS where the penalties can be severe, such as monetary penalties and, in some cases, even imprisonment. We should also be reminded that tax liability continues throughout one's life, at least in theory.
The question as to whether there is an expectation of privacy may also be more complex in this case than in others. While it is a legal term, it is doubtful that many users do not have an expectation of privacy in regards to their email. Why else do we give our email accounts passwords? In many ways email can be more "personal" than other aspects of citizens rights protected by the fourth amendment. Emails not only reflect what we wish to communicate to one another, but also, in some cases reflect our deepest thoughts. There is also an argument that much of the content of "papers and effects" mentioned in the Fourth Amendment may now take place electronically. Indeed, whereas people may have kept their tax returns and related correspondence on paper in the past, the government itself has even supported the move towards increasingly using the internet and third party servers. Users are encouraged, for instance, to file their returns online and can email questions to the IRS.
Given the widespread usage of electronic communications, in fact, it is arguable that many Americans tend to view their right to privacy in regards to email closer to the way that they might review a phone conversation or so-called "snail mail," other ways of communicating that have traditionally required a warrant. Perhaps our conceptions of rights have not yet adequately evolved to include the modern information age. In response to the ACLUs, accusation, the IRS has recently denied claims that it requests access to the contents of emails without a warrant. In the meantime, however, perhaps users would do well to be wary and engage in data encryption or at least take important emails off of third party servers.
Did you resolve the
issue of whether the statute applies? If you did not, why didn't
you? If you have resolved the issue of whether the statute applies,
and it does, why does the position taken by the IRS lawyers have any
appeal for you? If the statute does not apply, why is the case of
email stored in someone else's warehouse not to be decided as it
would be if it were physical journals or received postal mail stored
in someone else's warehouse, in premises to which the warehouse
owner has routine access? The present draft seems to leave the
important legal analysis out, in order to reach a general
constitutional issue that may not conceptually exist.
But what, in fact, does any of this have to do with taxes? The IRS
is said by a newspaper on the basis of statements we haven't seen to
be taking a legal position that has nothing to do with its
particular powers to lay and collect taxes, but simply as an entity
that conducts federal criminal investigations. What has the Boston
Tea Party to do with it, any more than the Battle of Bunker Hill?
In revision, the first step is to get the primary materials, rather
than relying on that well-known legal publication, the Daily News.
Get the ACLU materials, including the docket from Pacer on any
litigation it has filed. Pin down the context in which IRS is said
to have taken this position, and get the words of the Service or its
representative. The second step is to bring the legal analysis to
bear. Is ACLU asserting that the Service searched email to which
ECPA applies in violation of the statute's terms? Does IRS deny
that it is subject to the ECPA, or that the ECPA applies? What is
your analysis on these points, given the statute and the facts as set
forth in the primary materials or litigation papers you have seen?
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> | Conclusion | | |
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> | While the IRS comes up with clear and definitive policies on the topic, perhaps other government agencies and observers will take note of the above and the attitudes of the people around them as we navigate through this relatively novel area of law. Whatever the ultimate policy of the IRS, it seems apparent that many of its taxpayers are already aware that there is an expectation of privacy in regards to emails. |
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