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Yes, the IRS Can Read Your Emails If It Wants

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IRS email
Alamy / DailyFinance
If you've been swapping emails with your crooked accountant about the best way to avoid paying taxes, be aware: The IRS says it has the right to go into your account and read them.

ArsTechnica flags a report from the American Civil Liberties Union, which filed a Freedom of Information Act request to find out whether the IRS is reading your emails without a warrant.

The tax-collection agency did not explicitly answer the question of whether its investigative arm always gets a warrant before opening suspects' emails. But the ACLU says that its review of the documents indicate that it does not.

A bit of background is necessary here. When it comes to getting a warrant to read your email, the relevant law is the Electronic Communications Privacy Act, which was enacted way back in 1986. As you might expect, the law is a bit dated: According to the law, a government agency can read your email without a warrant as long as the email has been opened, or if it's been sitting in your inbox for more than 180 days. Only unopened email that's been on the server for less than 180 days requires a warrant.
It's exactly the kind of arbitrary distinction you might expect from a law written before email was widely used and understood. And accordingly, a Sixth Circuit appeals court ruled in 2010 that in fact, agencies needed to get a warrant before reading any emails, not just those that were new and unopened.

Before that decision, the IRS was certainly opening emails without warrants -- in fact, the ACLU got hold of an internal handbook claiming that the "the Fourth Amendment does not protect communications held in electronic storage."

The question, then, is whether those practices changed after the Sixth Circuit decision.

The ACLU's investigation suggest they did not: A 2011 update to its internal policies maintains the standard that "Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less" without a warrant.

The IRS has lots of ways to investigate you if it thinks you've been hiding something. In addition to searching your email and voicemail, it may also search your social media accounts for incriminating information (though it denies that it may audit you based on something it finds on one of those accounts, insisting that audits are based strictly on your filed return.)

The ACLU is calling on the IRS to amend its procedures to bring them in line with the Fourth Amendment. In the meantime, just be aware that the taxman might sift through your inbox if he thinks you're holding something back.

Matt Brownell is the consumer and retail reporter for DailyFinance. You can reach him at Matt.Brownell@teamaol.com, and follow him on Twitter at @Brownellorama.

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