Free Future

Reading of Emails Without Warrant Likely Extends Beyond IRS

By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project at 8:23am

The ACLU released documents last week indicating that the criminal investigative arm of the IRS doesn’t think it always needs a warrant to read people’s email when investigating them for tax crimes. The revelation garnered widespread media attention (see examples here, here, and here). We called on the IRS to clarify its policy but, unfortunately, the agency issued only a brief, confusing statement that failed to explain its actual policy and practices. As we said last week, because our emails, text messages, and other electronic communications contain some of our most sensitive and private information, it is crucial that federal law enforcement agencies obtain a warrant from a neutral judge before accessing them.

The documents we released put a spotlight on the IRS, but the problem is much broader. The IRS is likely not alone in taking advantage of a huge loophole in the outdated law that is supposed to ensure the privacy of electronic communications, the Electronic Communications Privacy Act (ECPA). Under ECPA, law enforcement does not need a warrant to read emails and other electronic communications that are stored on a server for more than 180 days or that have been opened by the recipient. Maybe that distinction had some basis in 1986, when ECPA was written, but as the Department of Justice recently acknowledged, it “no longer make[s] sense” today.

Calls to reform ECPA are mounting: allies from across the political spectrum are urging Congress to require a warrant for all electronic communications, and major email providers (as well as Facebook) are refusing to provide their users’ private communications to law enforcement without a probable cause warrant. This year is our best opportunity yet to protect the privacy of our emails, text messages, and other electronic communications.

The IRS shouldn’t be claiming the authority to read our emails without a warrant, but neither should any other law enforcement agency. Do you expect your email to be private? If so, you can use this link to tell Congress to modernize our electronic privacy law and close the loophole that’s letting the government access email and other electronic communications without a warrant.

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