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IRS: 4th Amendment? What 4th Amendment?

In yet another example of the federal government thinking the constitution is a dead letter, the Internal Revenue Service apparently thinks that they can read your emails without bothering to get a warrant from a judge. They claim there is no expectation of privacy when sending email.

Newly disclosed documents prepared by IRS lawyers say that Americans enjoy “generally no privacy” in their e-mail, Facebook chats, Twitter direct messages, and similar online communications — meaning that they can be perused without obtaining a search warrant signed by a judge…

An IRS 2009 Search Warrant Handbook obtained by the American Civil Liberties Union argues that “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 and obtained through the Freedom of Information Act…

The IRS continued to take the same position, the documents indicate, 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. A few e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position that Warshak mandates warrants for e-mail.

That “reasonable expectation of privacy” standard that the courts apply has always seemed to me like a bad basis for judging such cases. Whether one expects privacy in some situation has little to do with whether one should have privacy in that situation. And email should be treated no differently than any other communication. By the IRS’ reasoning, they should be able to intercept your mail and read it without a warrant, something no judge would ever allow.

Comments

  1. says

    That “reasonable expectation of privacy” standard that the courts apply has always seemed to me like a bad basis for judging such cases. Whether one expects privacy in some situation has little to do with whether one should have privacy in that situation.

    Yeah. I guess if I don’t expect that the police won’t come barging into my house in the middle of the night and shoot my dog, I don’t have a right to avoid them doing so.

    Rights are like fairies, apparently. You have to clap and believe, clap and believe!

  2. says

    Well, obviously since the days of telecom spying during the Bush administration, nobody can reasonably expect privacy in our emails any longer. We’re long past the point when we know that people are illegally spying on every email being sent.

    And since we have no expectation of privacy, the spying is now legal!

  3. Chiroptera says

    They claim there is no expectation of privacy when sending email.

    Well, yeah, I guess now I don’t expect my emails to be private.

  4. says

    Why the fuck are the IRS wasting their time with emails in the first place? Shouldn’t they be looking at actual TAX-RELATED documents? You know, like e-filings, paper tax filings and stuff like that?

  5. says

    Whether one expects privacy in some situation has little to do with whether one should have privacy in that situation.

    In point of fact, despite the formulation, what the courts are doing is determining whether everyone should have privacy in a particular situation. The “expectation of privacy” is really society’s expectation (based on what the judges think should be private), not any individual’s expectation but it tends to be phrased that way because Federal courts can only render decisions on specific cases and not issue advisory opinions.

  6. says

    US law is currently a mess with regards to modern internet services and the problems are mostly due to the outdated 1986 Electronic Communications Privacy Act.
    There is currently a bill in the House, H.R. 983, that will help clean up this mess by updating the ECPA. If you’re interested, EFF has more information on the bill and a petition to show support at the following links.

    H.R. 983 A petition supporting the bill

  7. raven says

    Regrdless of the law, which IMO has it right, the big mistake everyone makes is assuming your emails will never appear on the front page of the New York TImes.

    It happens a lot anyway.

    There are a lot of ways from hackers to your recipient just giving them out.

  8. says

    Actually, the IRS may be correct with regards to Facebook, Twitter and other social media, in that these operate as open communications essentially the same as pinning a note to a bulletin board.

  9. says

    Actually, the IRS may be correct with regards to Facebook, Twitter and other social media, in that these operate as open communications essentially the same as pinning a note to a bulletin board.

    It specifies Twitter direct messages, Gregory. Those are deliberately not intended to be public, as you’d think the IRS would understand since they don’t appear on people’s Twitter pages.

  10. says

    Warrant or no, considering that anyone you send an email to can forward it to anyone else who has an email account, I would never assume anything sent by email was private. That’s just being prudent and smart. Just ask all those republicans who were emailing those hilarious and totally not racist pictures of watermelons growing on the White House or the president and Michelle Obama dressed as a pimp-and-prostitue how private those turned out to be.

  11. says

    d.c. wilson said:

    Warrant or no, considering that anyone you send an email to can forward it to anyone else who has an email account, I would never assume anything sent by email was private.

    I don’t know about you, but I consider there to be a big difference between a friend or family member having the ability to pass on something I wrote if they so choose, and the IRS having direct access to it.

    Maybe your social circle is different, but mine isn’t prone to contacting the government offering to share information about me.

  12. David C Brayton says

    I’m glad that some people are shocked by this. The law lets the government take a look at any email over 180 days old without a warrant. Because an email is never truly deleted (it almost certainly is on a server somewhere), everything that is sent or received is available to the government after 180 days, even if you take every extraordinary precaution to protect your privacy.

  13. wscott says

    We’ve gone through this exact same dance with every new technology that’s come down the pike, going back at least as far the telephone: the government argues it’s not private until/unless the courts rule otherwise. So this is nothing new, other than the specifics of how it applies to these particular mediums. Historically the government respects the 4th Amendment exactly as far as the Courts force them to, no more. (I wish I could say “…and no less.”)
    .
    IIRC, part of the government’s argument here is that unlike snail mail (which is sealed and is generally only opened and read by the recipient), email is more like a post card in that the content can be read by anyone that handles it, therefore no expectation of privacy. Legalistically (IANAL) it’s not a completely vapid argument, as strongly as I dislike it.

    Whether one expects privacy in some situation has little to do with whether one should have privacy in that situation.

    I think this is just legal semantics. As John Pieret points out @5, the courts have used this language to mean is it reasonable for someone to expect privacy in a given situation. Ie, if I’m posting something on a public bulletin board, it’s not reasonable to expect it to remain private.

    considering that anyone you send an email to can forward it to anyone else who has an email account, I would never assume anything sent by email was private.

    If I send a snail-mail letter to someone else, there’s nothing stopping them from handing it to someone else, or indeed making 100 photocopies and handing them out on street corners. So by your logic, the government should be able to read my snail-mail? Your point about not assuming that anything you send by email will remain private is a fair point, but that’s beside the point to whether the gov’t needs a warrant to read it.

  14. unbound says

    There certainly is an expectation of privacy with e-mails. At the end of the day, it is no different than postal mail. There is an expectation that no one is going to open your letter, make a copy, and then have the letter continue on to its destination. This is a felony.

    There is functionally no difference between postal mail and e-mail in this regard. Just because it is easier doesn’t make it a different matter. It does take effort to snag an e-mail…it doesn’t just happen like magic. In fact, it would be easier for me to open my neighbor’s postal mail (just walk over after the mailman goes around and open it) than their e-mail.

    To be honest, it seems like the hacker’s faulty logic has infected a number of people including the judiciary. A lock on my front door is simply prudent. If it isn’t locked and you enter, you are still trespassing. If you take something that doesn’t belong to you in my house, it is still burglary. The lock is only there to discourage (or, as my dad used to say, “Locks keep honest people honest”).

  15. says

    @unbound #15 –

    There certainly is an expectation of privacy with e-mails. At the end of the day, it is no different than postal mail. There is an expectation that no one is going to open your letter, make a copy, and then have the letter continue on to its destination. This is a felony.

    When you send a regular letter, you are sending a message in a secured envelope that may not be breached, under federal law. An email is more like a post card, with writing that anyone whose hands it passes through can read. Because the text of a post card is not private, it is legally acceptable to make a copy of it as long as the card itself continues on its way.

    And then there is the technology itself: email is not point-to-point. When I send an email, I submit it to my email provider which turns it over to its router. The router tries to find a connection to the recipient; it probably does not have one, so it will send it off to a router that might. Chances are that router does not have a direct connection either, so off the email goes again. An email commonly goes through six or seven different routers before it reaches its destination, and an email sent to your friend three towns over may end up going around the world and back. The protocols used to send email strongly encourage each router to make its own cached image of the email, so that if the next router up the chain comes back with “could not deliver,” the router can try a different one. Available space is the only reason why these caches be cleared — there is nothing in the law or the email protocols requiring that they be deleted — and US law has consistently held that the caches belong to the company running the machines, not to the sender or recipient. The only way to guarantee privacy in an email is to wrap it up in a digital envelope, which is why the US government came down so incredibly hard on the inventors of PGP and other encryption technologies.

    While there may be a personal expectation of privacy with regards to emails, there has never been a legal or technological expectation of privacy, any more than there is with post cards.

  16. says

    Oh, and please note that I am describing how the law IS, not how I think it should be. As it stands now, if privacy is an issue, one must either encrypt sensitive communications or set up a secured point-to-point communication system.

  17. says

    If I send a snail-mail letter to someone else, there’s nothing stopping them from handing it to someone else, or indeed making 100 photocopies and handing them out on street corners. So by your logic, the government should be able to read my snail-mail?

    I never said the government should be able to read your emails, only that it is very easy for potentially embarrassing content (like the aforementioned totally not racist pics) to be forewarded to someone who can foreward to someone who can foreward it to someone who can make it public.

    To be clear: the government should be required to get a warrant to review our emails, but why make it easier for them?

  18. says

    When you send a regular letter, you are sending a message in a secured envelope that may not be breached, under federal law.

    Except we now know that international letters were regularly opened during WWI and WWII.
    Why does anyone believe anything that any government says? I mean, really…

  19. wscott says

    @ Gregory 16: Exactly. Any one of the routers your email bounced through can legally read your email, so it’s easy for the government to argue that your expectation of privacy is not reasonable. Hopefully the courts will decide differently, but honestly I wouldn’t bet on it.

    Except we now know that international letters were regularly opened during WWI and WWII.

    Well yes, but for law enforcement to do that in peacetime, they have to get a warrant. By contrast they don’t need a warrant to do what’s called a mail cover, where they record everything on the outside of the envelope. And yes, that would include the full text of a post card. So the real debate is whether email should be treated more like a letter or more like a post card.

  20. John Horstman says

    @16, 21: Well, unless I frame a TCP or UDP packet as a sealed letter in which the packet header forms an envelope and which no one other than the indicated recipient of the packet – including my ISP (we need net neutrality laws!) – has any right to read, even if it would be trivial to do so (the packet content does not need to be examined to route the packet, just as the envelope doesn’t need to be opened to route the physical letter, even though opening the envelope is a trivial task physically speaking). Ditto for a postcard, actually – I was unaware it was considered okay to read and especially to duplicate postcards, and I think this should not be the case. Encryption isn’t like an envelope, it’s like an armed courier: someone can’t open the letter even if they want, whereas the envelope is really just a matter of trust, as should be a standard network packet. If I just start spewing ASCII characters at your router, then yes, you should examine the content to figure out what’s going on. If I send you a properly-formatted packet, however, you should simply handle it along as the header instructs without examining the “inside.”

  21. Karen Locke says

    My computer network instructor back in college made us repeat after him: “An email is a postcard. An email is a postcard. An email is a postcard.” His point was that legal or not, email is not a private method of communication. I would expand his assessment to include FB, Twitter, Google+, what have you.

    Though I have to admit, I learned a bit of paranoia way back in the ’80s when I worked for a military contractor, and held a security clearance. We had lots of briefings on methods of information acquisition both by foreign agents interested in military espionage, and domestic/foreign agents interested in corporate espionage. Now it’s called “social engineering”. Any way you cut it, only one person can keep a secret really secret. That’s why I post and comment under my real name; I assume anyone really interested could out a pseudonym, and don’t post/email anything that I wouldn’t write on a postcard.

  22. says

    “You know, maybe we should need warrants for this.” ~ IRS agent, going through my emails and finding that every single one of them contains a pic of my crotch*
     
    * Because beefy man-meat is more secure than encryption. Computers break encryption; crotch shots break people.

  23. says

    @Marcus:

    Someone needs to drop a ton of IRS dox at wikileaks. Just to see how they like privacy violations.

    That would be terribly wrong. The people who work for the government have a reasonable expectation of privacy in their communications.

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