IRS backs off on warrantless email surveillance

Josh Peterson Tech Editor
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Following last week’s uproar over internal IRS documents that suggested it engaged in warrantless email surveillance, a top agency official told a Senate committee Tuesday that it does no such thing.

Internal documents from the agency’s criminal division, revealed through a Freedom of Information Act (FOIA) request by the ACLU, suggested that the agency has had a policy allowing for it to engage in warrantless email surveillance for several years.

Acting IRS Commissioner Steven Miller told the Senate Finance Committee Tuesday, “In the criminal context, we seek a warrant in advance.”

Law enforcement cannot obtain search warrants for civil matters.

In 2010, the Sixth Circuit Court of Appeals ruled that law enforcement must obtain a probable cause warrant before compelling email providers to hand over emails pertinent to a federal investigation.

A special counsel to the IRS Criminal Tax division said in an internal email in 2011 that he had not heard of any fallout from the decision, and that it was the agency’s position to always obtain a warrant for emails less than 180 days old.

It was unclear from that exchange, however, whether the Sixth Circuit decision affected how the agency pursued electronic communications older than 180 days.

Much to the concern of the ACLU, even a current version of the IRS manual did not reflect a policy change.

Miller told the committee that the agency intended to change the policy for emails within 30 days.

Nina Olsen, the National Taxpayer Advocate, told the senate committee that the IRS had not consulted her office when it had drafted the policy, and that it might “have looked different if the voice of the taxpayer had an opportunity to comment on it.”

Democratic Colorado Senator Mark Udall, in a statement following the hearing, called Miller’s testimony “a victory for Americans everywhere and our Constitution.”

Last week, Udall issued a call for the agency to reconsider its then-position on warrantless email surveillance.

The ACLU has been making the case that the documents are an example of why the nation’s privacy law — the Electronic Communications Privacy Act (ECPA) of 1986 — needs to be updated.

ECPA currently states that a warrant is only needed for electronic communications 180 days old or less.

The civil liberties group is joined by a broad bipartisan coalition of advocacy groups, think tanks, private sector businesses and congressmen.

The coalition is looking to reform the law to ensure that warrants are required for federal agents seeking electronic communications, regardless of how old the message is.

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