IRS denies searching emails without warrant

The head of the Internal Revenue Service (IRS) denied on Tuesday that his agency searches people's emails without a warrant.

"The short answer is we are not taking that position," Steven Miller, the IRS acting commissioner, said in response to questioning from Sen. Chuck GrassleyChuck GrassleyThese Senate seats are up for election in 2022 Hillicon Valley — Senate panel advances major antitrust bill Senate panel advances bill blocking tech giants from favoring own products MORE (R-Iowa) during a hearing.


Miller said that for criminal investigations, his agency obtains a search warrant before requesting the contents of emails from an Internet service provider. He said investigators do not request email content information from service providers for civil investigations.

The American Civil Liberties Union (ACLU) released internal IRS documents last week in which the agency claimed that, in many cases, it does not need a warrant to access emails, text messages and other electronic communications. The ACLU obtained the documents through a Freedom of Information Act request.

In a 2009 handbook, for example, the IRS said the Fourth Amendment does not protect emails because Internet users "do not have a reasonable expectation of privacy in such communications."

At Tuesday's hearing, Miller said his agency plans to clarify its procedures.

Under the Electronic Communications Privacy Act (ECPA) of 1986, government officials only need a subpoena, issued without a judge's approval, to demand that an Internet company turn over emails that have been opened or that are more than 180 days old.

Privacy groups, however, argue that the Fourth Amendment provides greater privacy protections than the ECPA and that police and other officials should need a warrant to access all private electronic messages. A 2010 appeals court decision backed a warrant requirement for email searches, but the Supreme Court has yet to settle the issue.

Miller said the IRS follows the court ruling, U.S. v. Warshak, across the country even though it is only binding in the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.

The official said he is unsure whether the agency's warrant requirement policy applies to other private online content, including social media sites such as Facebook and Twitter.

Lawmakers in both chambers are pushing legislation to update the ECPA to require police to obtain a warrant regardless of how old an email is. The Senate Judiciary Committee plans to mark up a bill on the issue on Thursday.