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.

ACLU contentions

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.

United States v. Warshak and The Electronic Communications Privacy Act (ECPA)

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.

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.

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.

The Fourth Amendment

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?

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.

Conclusion

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.