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ACLU documents shows free access to emails for IRS tax police

If it's opened, or old, then no warrant needed

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With the US Tax Day less than a week away, the ACLU has released a not-very-comforting Freedom of Information Act request return from the Internal Revenue Service (IRS) showing just how easy it is for the tax agency to read people's online communications without a court-issued warrant.

Last year, the ACLU asked the IRS for data on email security, and the tax inspectors sent over a 247-page response covering such topics as the ability of the IRS's criminal investigations department to read emails and track people via GPS without having to convince a judge that this isn't a violation of the US Constitution's Fourth Amendment.

A 2010 presentation from the IRS Office of Chief Counsel stated that "4th Amendment Does Not Protect Emails Stored on Server" and that internet users should have "No Privacy Expectation." Under the current rules, if an email has been opened or if it's more than 180 days old, then the people who check whether you've been good or bad on your tax returns don't need a warrant for full access.

The same presentation states that agents are free to place GPS tracking devices on their targets without a warrant and that cars parked in a driveway are not covered by the Amendment's "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

Another IRS chief counsel advice memorandum from October 2011 shows that the IRS seems unwilling to go through the time and hassle needed to get a warrant for the rest of your electronic communications. It advises agents that arguing the legal niceties would take longer than 180 days, meaning any evidence would be "stale."

The requirements for 180-day or unopened email access were established in 2010 by United States v. Warshak, a case involving the prosecution of Berkeley Premium Nutraceuticals, an "incredibly profitable company" selling "an herbal supplement purported to enhance male sexual performance."

"Let's hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails," said Nathan Wessler, staff attorney with the ACLU's Speech, Privacy, and Technology Project.

"The IRS should let the American public know whether it obtains warrants across the board when accessing people's email. And even more important, the IRS should formally amend its policies to require its agents to obtain warrants when seeking the contents of emails, without regard to their age."

The IRS has not as yet responded to requests for comment.

There is a simpler way

The annual April panic over taxes (and trying to claim every last deduction before the deadline in a way that won't invite an investigation) is a much-lampooned part of the American cultural tradition. Many readers will be using Intuit's popular TurboTax system to file their returns, but an investigation by NPR and ProPublica has shown that company has been fighting hard to retain its market by blocking moves to simplify the tax system.

One idea, endorsed by Republican demigod Ronald Reagan (and the current Democratic President Obama, on the campaign trail), is that the tax authorities run a service online that tells you what they think you owe, and then you either agree or file your own tax return.

California taxpayers have this with the Ready Return system, and a similar system is used nationally in Denmark, Sweden and Spain. If implemented nationally in the US, some estimates suggest it could save $2bn and 225 million hours a year.

"This is not some pie-in-the-sky that's never been done before," said William Gale, co-director of the Urban-Brookings Tax Policy Center. "It's doable, feasible, implementable, and at a relatively low cost."

Over five years, Intuit spent $11.5m on lobbying to stop efforts to reform the tax system in this way, according to financial disclosures obtained by ProPublica. This included lobbying on two failed bills that would have extended the rights of pre-filled returns for free, and two more barring the Treasury Department from trying return-free filing.

"Like many other companies, Intuit actively participates in the political process," Intuit spokeswoman Julie Miller said in a statement.

She pointed out that Intuit is a key partner in the Free File system aimed at lower-income taxpayers and which covers the majority of the tax-paying public. The heart of the issue, she said, is "Voluntary Compliance," and the freedom of the American people.

"This is not about Intuit, although some work very hard to make it appear that way. This is about a basic belief that taxpayers deserve the right to Voluntary Compliance so that they can keep more of their hard earned money," the statement concludes. ®

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