The IRS Believes No Warrant Necessary To View Your Email

In the film “The Treasure of the Sierra Madre,” a South American lawman famously scoffed at the idea of having to identify himself with the line, “Badges? We don’t need no stinking badges.” It appears that investigators and agents at the Internal Revenue Service feel the same about warrants when it comes to your email and other electronic transmissions contrary to laws suggesting otherwise.

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Thanks to information obtained by the American Civil Liberties Union using the Freedom of Information Act, they found this peach in a 2009 warrants handbook…”emails and other transmissions generally lose their reasonable expectation of privacy and thus their Fourth Amendment protection once they have been sent from an individual’s computer.” The handbook was prepared by the Office of Chief Counsel for the Criminal Tax Division.

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If the IRS was in need of information on a hard-drive stored in your home, or perhaps physical records in a filing cabinet, they would certainly need a warrant in order to not violate your Fourth Amendment rights. The fact that they feel this doesn’t apply to your email and other electronic transmissions is almost as scary as it is draconian and hypocritical. Forget hypocritical, how about criminal?

What is equally shocking is the fact that the IRS still believes this even after a federal appeals court ruled in the 2010 case U.S. v. Warshak that Americans have a reasonable expectation of privacy in their e-mail. It’s nice to see more judges getting behind this ruling but it would be nice if an arm of the federal government would respect the findings of a federal court.

In an update to the aforementioned manual in March 2011, understand that this update was published four months after the Warshak ruling, the IRS continued their brazen belligerence with regards to the law writing, “investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less without a warrant.”

Thankfully a number of, but not nearly all, e-mail providers including Google Inc (NASDAQ:GOOG), Yahoo! Inc. (NASDAQ:YHOO), and Microsoft Corporation (NASDAQ:MSFT) are unlikely to hand over your correspondence without a warrant. That doesn’t mean your safe, explains Nathan Wessler, a staff attorney at the ACLU’s Speech, Privacy & Technology Project….

“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.”

For me and I’m guessing millions of Americans, I though that was the case and the federal government would and should follow the law of the land.