IRS and Email “Privacy”

Posted on April 11, 2013 by

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IRS Email Privacy 4th AmendmentThe patter of rain upon my window suggests Spring has arrived. The April showers signal renewal, growth, and TAXES. Yes, tax season–when accountants are sexy and when we, for at least a moment, pause to reflect on the often gross nature of our tax burden in the United States. I complain, of course, though I do “render” just as I am commanded, and I generally attempt to do so without grumbling.

The IRS, however, is making news for reasons beyond its normally assumed evil disposition. Slate offers a nice write-up on the ongoing ACLU investigation into the agency’s abuse of email.

The Electronic Communications Privacy Act enables government agencies to obtain email without a search warrant after they are more than 180 days old. This, it seems, may have emboldened the IRS to treat email as not protected under the Fourth Amendment’s requirements for reasonable searches and seizures.

As the article notes, in 2010, a circuit court determined that email communication is protected under the Fourth Amendment no matter how old it might be, so government agents would need to provide a warrant before they can search or seize email communications.

This is an ongoing issue of litigation that the Supreme Court will need to address. The key issue legally is that the Fourth Amendment was written to require government to engage in a meaningful process before it can simply collect information to use in a criminal matter. The Supreme Court has always allowed for collection to occur through surveillance “in plain view” without a warrant or justification. This is why, for example, traffic cameras are constitutional because what they capture is in plain view and there is no expectation of privacy for citizens as they drive in their cars on public streets. To do more than look at what is in plain view, the government must show probable cause that a crime has been or is about to be committed.

Technology, though, has changed the nature of surveillance. Now, the government can monitor many things “in plain view” through cameras, satellites, or drones and it can do so with comparatively few resources. Put differently, if you required officers to physically witness what is in “plain view,” there are limits to what government can observe. With electronic tracking, those limits nearly vanish. Government can now observe and then find patterns of potentially criminal behavior within those observations. I hope the Supreme Court will determine that our use of email indeed contains a reasonable expectation of privacy and that government will have to obtain a warrant to examine emails. I want government to jump over at least a few hurdles in order to monitor someone.

When I bring up these issues with students and others, I often hear, “if you aren’t doing anything wrong, you have nothing to worry about.” That comment simply misses the point. Freedom is not having to worry about government observing you and monitoring your every move, whether you are doing anything wrong or not. Of course, we want government to catch the bad guys, but we also don’t want it to scrutinize innocent citizens unnecessarily or to collect information needlessly. The potential for abuse is real and should not be ignored.

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