FOIA documents suggest IRS may have ignored court ruling on email privacy

A bundle of documents obtained through a Freedom of Information Act (FOIA) request suggests that the nation’s tax collector may have ignored a court ruling in 2010 that ordered it to always obtain a warrant before spying on emails stored on cloud servers, the American Civil Liberties Union (ACLU) said Wednesday.

The Internal Revenue Service (IRS), commonly thought of as accountants with the power to garnish wages and seize property, is also a law enforcement agency with the power to spy on communications, so it’s not totally surprising that it has typically followed Supreme Court precedent regarding law enforcement’s broad spying powers when it comes to emails more than 180 days old.

However, in a ruling issued December 2010, the Sixth Circuit Court of Appeals ordered the IRS to always obtain a warrant before rifling through emails, no matter how old, contained on services like Gmail and Yahoo Mail, which otherwise have significantly less privacy protections than, for instance, encrypted communications stored on a home computer.

The first indication as to whether the ruling truly made the agency change its ways came in January, 2011, the ACLU’s documents reveal. In an email titled after the case’s name, US v. Warshak, an IRS criminal prosecution attorney wrote: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.”

The ACLU also dug up a 2011 edit to the Internal Revenue Manual (PDF) that simply re-stated the prior policy in different words, saying investigators can obtain emails older than 180 days without a warrant. “Again, no suggestion that the Fourth Amendment might require more,” ACLU attorney Nathan Freed Wessler wrote.

A third indication arises in an October 2011 memo (PDF) from the IRS chief counsel, which seems to parse whether the Sixth Circuit Court of Appeals ruling could be applicable to outside jurisdictions. Examining the details of US v. Warshak, the memo explains that although the Sixth Circuit issued a ruling, the case ultimately arose out of a dispute with an Internet service provider (ISP) in the Ninth Circuit Court of Appeals’ jurisdiction — and that court hasn’t ruled so clearly on the matter.

“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 concluded. “This question is too important for the IRS not to be completely forthright with the American public. The IRS should tell the public whether it always gets a warrant to access email and other private communications in the course of criminal investigations. And if the agency does not get a warrant, it should change its policy to always require one.”

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