In response to a recent Freedom of Information request, the IRS recently released a memorandum issued by an IRS staff attorney to a revenue officer (in reply to a question) which states that the IRS believes it has the authority to subpoena and review taxpayer emails which are more than 180 days old without a warrant. Under the federal Stored Communications Act, the IRS acknowledged that it cannot review taxpayer emails or stored voice mails which are less than 180 days old without a warrant.
This release predictably concerned several members of Congress. In response to their questioning of the then acting IRS commissioner, the commissioner stated that, in spite of the prior memorandum, the IRS would no longer pursue warrantless searches of Americans’ emails and other digital communications.
The IRS followed up this statement by the acting IRS commissioner with a formal policy statement confirming that the IRS will now obtain a search warrant in all cases when seeking from an internet service provider (ISP) the content of email communications stored by the ISP. In addition, the IRS confirmed that such information will not be sought from an ISP in any civil administrative proceeding and that the IRS will update its existing guidance to revenue officers and agents to comply with this policy.
While this is a victory for privacy advocates (and we would argue taxpayers), this change in policy should be viewed in its proper context. The IRS has not acknowledged that it is forbidden from reviewing old emails – just that it voluntarily will not do so. We don’t see that the IRS is forbidden from changing its policy and later choosing to conduct warrantless searches of older emails. So this area may still call for guidance from Congress.