IRS remains mum on taxpayers' e-mail privacy rights

The IRS is not answering questions about internal documents showing the agency believes Americans have "generally no privacy" in their e-mail, Facebook chats, and Twitter direct messages.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read
The Internal Revenue Service building in Washington, DC.
The Internal Revenue Service building in Washington. Getty Images

The Internal Revenue Service has declined to answer questions about whether it obtains a search warrant before perusing Americans' e-mail messages and other electronic correspondence.

CNET contacted the IRS last Wednesday morning to ask whether the agency's internal procedures require warrants signed by a judge. That was in response to newly disclosed internal IRS memos saying Americans enjoy "generally no privacy" in their e-mail, Facebook chats, Twitter direct messages, and similar online communications.

Despite repeated queries, the IRS has not responded to last week's questions. Instead, an agency spokesman provided a statement saying:

Respecting taxpayer rights and taxpayer privacy are cornerstone principles for the IRS. Our job is to administer the nation's tax laws, and we do so in a way that follows the law and treats taxpayers with respect. Contrary to some suggestions, the IRS does not use emails to target taxpayers. Any suggestion to the contrary is wrong.

That's not enough to satisfy the American Civil Liberties Union, which obtained the internal IRS documents through the Freedom of Information Act.

"We have no idea why they haven't done more to clarify their position on this crucially important issue," Nathan Wessler, a staff attorney with the ACLU's Speech, Privacy & Technology Project, said this afternoon. "It would be very simple for them to clarify."

An IRS 2009 Search Warrant Handbook 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.

That places the IRS at odds with a growing sentiment among many judges and legislators who believe that Americans' e-mail messages should be protected from warrantless search and seizure. They say e-mail should be protected by the same Fourth Amendment privacy standards that require search warrants for hard drives in someone's home, or a physical letter in a filing cabinet.

IRS statistics for the fiscal year that ended last month show that it secured nearly 2,000 indictments against Americans during that period, with an average prison term of 46 months.

"The conclusion that we're left to draw...is that in at least some cases they're continuing to claim the power to read some emails without a warrant," Wessler said. "We would welcome a statement from the IRS explaining otherwise -- but until then all of our concerns still stand."