A federal appeals court made it clear three years ago in a ruling that the government must obtain a warrant before prying into Americans’ emails. But the Internal Revenue Service (IRS) hasn’t always abided by this decision, preferring instead to exploit a loophole in federal law to spy on emails without a court order.

The loophole exists with the Electronic Communications Privacy Act (ECPA), which says the government can snoop on a person’s emails if they are more than 180 days old or have been opened (if they are unread or less than 180 days old, a warrant is required under ECPA).

The 180-days distinction was presumably thrown out in December 2010, when the Sixth Circuit Court of Appeals decided in U.S. v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages, no matter how old they are.

The American Civil Liberties Union (ACLU) says that despite the appellate ruling, IRS policy has been to ignore the need for a warrant based on the ECPA 180-day rule. This position was evident in a series of IRS emails from January 2011 that the ACLU obtained, and again in an IRS manual dated March 2011.

An earlier IRS document from 2009 showed the agency’s disregard for the Fourth Amendment, which protects against illegal searches. But the Criminal Tax Division at the IRS claimed in an internal handbook that in general “the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server.”

-Noel Brinkerhoff

To Learn More:

New Documents Suggest IRS Reads Emails Without a Warrant (by Nathan Freed Wessler, American Civil Liberties Union)

The IRS Doesn’t Think “Reasonable Expectation of Privacy” Applies to Your Emails (by Ryan Gallagher, Slate)

IRS Reads Taxpayer Emails Without a Warrant (by Michael Cohn, Accounting Today)

Congress, at Last Minute, Drops Requirement to Obtain Warrant to Monitor Email (by Noel Brinkerhoff, AllGov)