by Brian Mahany
According to a recent story published by CNET, the IRS says it doesn’t need a search warrant to read your email. While privacy advocates, liberals, conservatives, the ACLU and courts think otherwise, the IRS still claims that Americans have no expectation of privacy in their emails.
I was shocked when reading this story. A IRS search warrant handbook obtained by CNET states that emails and other electronic messages lose any expectation of privacy once they leave your computer. That means the IRS can snoop through your emails without your knowledge and without seeking approval from a judge.
While regular mail is clearly protected, emails and text messages apparently are not. Or so says the IRS.
The U.S. Sixth Circuit of Appeals ruled in December of 2010 (US v Warshak) that emails were protected by the 4th Amendment. Speaking for the court’s majority, Judge Boggs said, “Given the fundamental similarities between email and traditional forms communication, it would defy common sense to afford emails lesser Fourth Amendment protection…. Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP.”
According to CNET, an update to the IRS’ search warrant manual, published months after the court’s opinion in Warshak, said nothing had changed and that only unopened emails and voicemails had an expectation of privacy requiring a warrant.
Congress is now debating an amendment to the federal Electronics Communications Privacy Act that would explicitly make it clear that the IRS and other law enforcement needs a warrant to snoop through voicemails and emails. The Justice Department has dropped its opposition to the amendment.
The Patriot Act and other recent legislative initiatives have largely sounded the death knell of privacy in this country. While it is gratifying to see Congress and the courts applying common sense and restoring some privacy rights, we warn everyone to be careful in their communications. Especially email.
An email is like a post card. It doesn’t take much effort to see read the contents. While we never advocate breaking the law, people make mistakes every day. The best line of defense to electronic snooping is to not communicate electronically. If you don’t want someone to read your texts, your emails or listen to your voicemails, don’t send them.
The federal government has many tools available now that were not existence a few years ago. Customs can mirror image a lap top in seconds. Some police departments have devices that restore text messages deleted from a cell phone.
If you are accused of a crime, seek competent counsel immediately. It takes a great deal of effort to keep up to date on electronic surveillance techniques and the laws regarding them. When your future and freedom is on the line, seek the best counsel you can find.
Even if you are not under criminal investigation, don’t expect money hidden from the IRS will remain hidden forever. Especially in the area of unreported foreign accounts, consider coming into compliance instead of playing an expensive game of “hide and seek.” Chances are the government will win.
The lawyers at Mahany & Ertl specialize in a wide variety of tax and white collar criminal matters including unreported offshore accounts, tax evasion, wire fraud and money laundering. For more information, contact attorney Brian Mahany at or by telephone at (414) 223-0464 (direct). All inquiries are protected by the attorney – client privilege and kept in strict confidence.
Mahany & Ertl – America’s White Collar Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine; Minneapolis, Minnesota and San Francisco, California. Services available in many jurisdictions.
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