Sen. Mark Udall and 12 colleagues are waiting for a response to their request last week that the IRS tell them when it plans to update its policies to reflect the fact that agents can't search Americans' online communications without a warrant.
We hope the senators insist on firm evidence the IRS is changing out-of-date policies that threaten Americans' constitutional right to privacy. And we also believe it's long past time for Congress to update the Electronic Communications Privacy Act (ECPA) so there's not a shred of doubt about what is and isn't legal.
It's true that IRS Acting Commissioner Steven Miller, in an appearance before the Senate Finance Committee this month, said his agency would not seek access to private e-mails and other personal online communication without a warrant. And Udall can take at least partial credit for the concession since he had blasted the agency's surveillance policies just a few days before.
But as welcome as Miller's statement was, it was not totally reassuring. That's because internal IRS documents gathered by the ACLU reveal that prior to an important federal circuit court opinion in 2010, "it was the policy of the IRS to read people's email without getting a warrant." Just as bad, the ACLU reports, "The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days."
Why 180 days? Because present law draws an unfortunate distinction between email stored on a server for 180 days or less "and email that is older or has been opened," the ACLU explains. But as the circuit court recognized, the Fourth Amendment's protections trump a law that failed to foresee the scope of the present electronic age.
"The ECPA was enacted in 1986 long before the Internet we have today even existed ... ," the 13 senators wrote. "It defies common sense that some emails should receive fewer legal protections than a letter filed in a drawer at home."
Indeed it does. And we hope both the IRS, in its policies, and Congress, in its laws, take heed of that fact.