An internal IRS document explicitly states that emails sent from an individual’s computer do not have reasonable expectations of privacy and lose Fourth Amendment protection allowing IRS investigators to view private emails, messages and other communications without requiring a search warrant. Although some precedent has been set in recent U.S. federal court cases, the IRS’ position on not needing a warrant to obtain emails underscores the need to update legislation regarding the Fourth Amendment and electronic communications.
The IRS 2009 Search Warrant Handbook states that emails and other electronic transmissions “generally lose their reasonable expectation of privacy and thus their Fourth Amendment protection” after being sent from one’s computer or device. This document was last updated in March 2011, a few months after a federal appeals court decided that there should be a reasonable expectation of privacy with emails, but the updated document maintains its original position restating the guidelines set forth in the Electronic Communications Privacy Act. The 2010 federal appeals court case, U.S. v. Warshak, resulted in a 3-0 opinion that emails should not have lesser Fourth Amendment protection “given the fundamental similarities between email and traditional forms of communication.”
The Fourth Amendment protects both tangible and electronic documents from illegal search and seizure, but when it comes to documents stored in the cloud or servers outside of an individual’s home it is somewhat of a grey area as these laws are governed by the 1986 Electronic Communications Privacy Act, which several advocacy groups have been asking Congress to update. Due to the somewhat outdated wording of the ECPA as it stands today, data stored in the cloud does not have the same Fourth Amendment protections should that data be stored on your hard drive.
Meanwhile the requests for such data have significantly increased in recent years. According to Google’s Transparency Report summarizing the number government data requests, these have increased from over 12,000 user data requests in the second half of 2009 to over 21,000 user data requests in the second half of 2012. Major tech and telecom companies, as well as political groups on both sides of the spectrum, have asked Congress to update the 1986 ECPA to ensure that private communications as well as mobile geolocation data cannot be obtained without a search warrant.
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