- The Washington Times - Thursday, April 11, 2013

IRS attorneys have asserted in internal documents that the Fourth Amendment does not protect email and that a warrant is not needed to plant a GPS location tracker on a car in its owner’s driveway.

In documents obtained from the IRS by the ACLU under the federal Freedom of Information Act and posted on the website Wednesday, the agency’s attorneys adopt an extremely aggressive posture toward the requirements the Fourth Amendment might place on its criminal investigators who want to read email or text messages, or use GPS location tracking.

“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,” states a 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel.

A slide presentation the following year by the IRS Office of Chief Counsel asserts that “placing tracking device on car while in driveway does not violate Fourth Amendment.”

Later it adds, “Fourth Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.

That analysis dovetailed with the requirements of the Electronic Communications Privacy Act of 1986, which says that a warrant is not required for email more than 180 days old or that has been opened.

But at the end of 2010, the Sixth Circuit Court of Appeals ruled in a case called Warshak, that the requirements of the Fourth Amendment, trumping the provisions of the 1986 ECPA law, mean a warrant is required to read email — no matter where it is stored or how old it is.

“The key question our [document] request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails,” said ACLU staff attorney Nathan Freed Wessler.

“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,” he added.

In 2011, the agency issued a series of amendments to the IRS manual, but they didn’t change what manual — the agency’s “bible” — said about warrants and email.

The current version still maintains that a warrant is not required for stored email more than six months old, said Mr. Freed, who is with the ACLU’s Speech, Privacy and Technology Project.

No one at the IRS was immediately available for comment.

• Shaun Waterman can be reached at swaterman@washingtontimes.com.

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