IRS Promises To Get Warrant Before Reading Your Email, But Not Social Media
Americans are renowned for valuing their independence and privacy. So, when the American Civil Liberties Union (ACLU) obtained IRS documents in early April, 2013, that appeared to indicate that the IRS felt it could read a taxpayer's private email without first obtaining a search warrant, a firestorm ensued.
The concern and outrage was heightened by concerns that the IRS was also examining social media postings for evidence one's tax reporting wasn't accurate.
This development has prompted lawmakers in Washington DC to revisit existing laws regarding the IRS' ability to monitor seemingly private communications.
No Protection for Old Email
A government agency's ability to obtain copies of your email is controlled by the Electronic Communications Privacy Act of 1986 (ECPA). Written in the late 1980s, when email was still a relatively new form of communication and "social media" meant online chat rooms and "listervs," the Act only requires a warrant if the email is less than 180 days old. It is silent regarding the privacy expectations regarding social media sites.
The discussion regarding email privacy relates only to email stored on your Internet service providers (ISP) servers, or "cloud-based" storage. If you have emails stored on your hard drive-which was far more common before that advent of virtually unlimited Internet-based storage-they government is required to obtain a warrant to search through your computer.
Although the ECPA gives government the right to obtain older emails without a warrant, the U.S. Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that the Fourth Amendment's prohibition on search where there is a reasonable expectation of privacy trumps the ECPA. Regardless of the age of the email, the sender and the recipient have a reasonable expectation that the communication is private-therefore a warrant must be obtained. Given that an appellate decision is not binding nationwide, it appears that the IRS continued to apply the ECPA rules, rather than seek warrants for recent emails, although Acting Commission Steven Miller stated this was not the case.
Given that most IRS examinations and audits related to prior year's returns, the 180-day rule enabled the IRS to easily obtain the most relevant evidence regarding information provided on the tax return.
Within days of the ACLU news release, the Chairman of the House Ways and Means Subcommittee on Oversight, Charles Boustany, Jr (R-LA), sent a formal request to the IRS asking for a detailed explanation of its policies regarding searching private email and social media accounts. The Chairman also asked the IRS to provide information on what type of information they are gathering, as well as how often they conduct this type of search. (As of this date, the IRS's response, if any, has not been made public.)
Also, in a rare show of bipartisan unity, Senator Grassley (R-IA) and Senator Wyden (D-OR) of the Senate Finance Committee used the public hearing on tax fraud and tax ID theft to quiz Acting IRS Commissioner Steven Miler regarding the IRS's policy of obtaining emails and monitoring social media.
The insinuations of warrantless snooping by the IRS also galvanized Congress to take action toward revamping the painfully outdated ECPA. The Electronic Communications Privacy Act Amendments of 2013 (S. 607 and H.R. 1847) would eliminate the antiquated 180-day rule and limit what account and usage information can be disclosed by an Internet service provider without a warrant, court order or consent from the subscriber.
The amendments also would compel a government agency to notify an individual when it has obtained copies of email pursuant to a warrant, although there are exceptions to the notice requirement if giving notice would compromise the government's ability to pursue the case. Both bills continue to await action by Congress.
IRS Response Regarding Email
In an effort at damage control and in response to demands by Senators Grassley (R-IA) and Senator Wyden (D-OR), in early May, the IRS issued a new policy statement that concedes it will follow the holding in United States v. Warshak. The IRS will obtain a search warrant when it seeks to obtain the content of emails from an Internet service provider (ISP), regardless of the age of the email. The policy statement also makes it clear the IRS will not seek to obtain emails from an ISP in connection with a civil proceeding, such as an examination, audit or civil tax case.
IRS Hints Social Media Is Not Off-Limits
Significantly, the IRS has not issued a policy statement regarding its social media surveillance activities. When questioned by Senator Grassley regarding the IRS's scrutiny of social media, the Acting Commission said that was "outside of his expertise." Responding to follow-up questions by Senator Wyden, however, Miller indicated that the IRS would make use of "public information" on Facebook and Twitter accounts of taxpayers who were involved in collection or examination proceedings with the IRS.
It is unclear what the IRS Acting Commissioner meant by "public information" on Facebook or Twitter. However, it is a long-standing IRS practice to reconstruct a taxpayer's income and expenses using every means possible-from bank accounts to real estate appraisals. Their goal is to discover unreported income based upon the taxpayer's lifestyle or improper deductions based upon evidence of the use of property or claimed expenses.
Until the situation regarding social media privacy is resolved, don't post anything on Facebook or on Twitter that you would not want to explain to an IRS agent. For example, don't post pictures and details of your Paris vacation, knowing that you are going to claim deductions for it as a business trip.