Taxes

As early as the Boston Tea Party, where Americans banded together to toss tea into the river as a protest unfair British taxes, taxation has been a delicate, and sometimes contentious, subject for US citizens.

So late as that? See John Phillip Reid, The Constitutional History of the American Revolution: Tax.

While many US citizens would likely concede that taxes are necessary for the adequate function of government, it is equally true of our American ethos that we expect the taxation powers of government to be carried out in a fair and constitutional manner. At the heart of the Boston Tea Party protest, for instance, was the refusal of Americans to be taxed without being adequately represented, the latter of which is a constitutional right.

Unless you live in Washington, DC? Are you sure the distinction between actual and virtual representation, which seems important in 1774 but which has nothing to do with contemporary political discussion, is part of the subject you are writing about here.

Recently, the American Civil Liberties Union reported that they believed that the nation's largest tax collection body- the Internal Revenue Service-might, however, be engaging in some questionable, if not unconstitutional behavior, in their efforts to collect taxes from United States citizens. Indeed, the ACLU recently reported that the IRS, as a matter of policy, accessed taxpayers emails without a warrant when conducting criminal investigations. The ACLU cited correspondence from the IRS that contended that this was because the fourth amendment does not cover emails. The following analyzes the alleged actions of the IRS in light of the fourth amendment and concludes that such actions should be construed by the courts and the public to constitute an infringement of Americans' fourth amendment rights.

Derivatively, only, because if the ECPA permits the Service to do what it does, Congress has made the searching reasonable, and the Fourth Amendment is not offended.

As noted in the New York Daily News story relaying the ACLU's accusation,

To which you don't link? Why are you taking the Daily News on the subject of what ACLU thinks instead of reading what ACLU said?

the statute that is supposed to cover activities such as that described above is the Electronic Communications Privacy Act. However, the report also notes that the Act only covers unopened emails or those that are more than 180 days old.

That's a misstatement of law. Did you read the statute?

While the Act would ideally have more expansive coverage, the IRS' activity may, more importantly, violate the the Fourth Amendment, which reads, " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The text of the amendment establishes that Americans are protected against searches of their papers and effects in their house. Of course, being written in the 18th century, the amendment makes no mention of email. However, the fact remains that were the contents of email written on paper and kept in the home, they would be protected. Why is email, therefore, different, at least as per the IRS' view?

The correct analogy would be to physical papers stored on third-party premises, and accessible to the owner of the premises. Why would the Fourth Amendment prohibit a search with the consent of the third party under those circumstances?

The New York Daily News reports that IRS counsel has said that users have no expectation of privacy when their electronic data, such as email, is stored on servers.

Why are you relying on one tabloid source to determine the legal position of a government agency? If the Service has taken a legal position, in what documents has it taken that position, and can we please have a link to them? If the only evidence of the Service position is a statement to a reporter, could we at least have a quotation rather than a paraphrase? It's not very reliable, is it, to depend upon a mechanism like The New York Daily News to provide precise legal information?

The theory behind this argument is that servers are owned by a third party and there can be no expectation of privacy where a third party is involved. The article elaborates that this "right" of the IRS to obtain and use electronic communications and expression may also extend to Twitter and other forms of social media. Of course, the IRS suggests that it will choose to conduct audits on the basis of tax returns and not social media, but are the American people willing to trust a government agency with their personal communications, especially one with broad taxation powers, as well as the ability to exact civil and criminal penalties? Another aspect of the IRS' activity that is troubling is its alleged flaunting of the requirement of a warrant. Indeed, the Fourth Amendment allows government to engage in certain invasive activities provided that the government obtains a warrant. The purpose of the warrant is to protect US citizens from precisely the type of activity that the IRS is undertaking. A warrant requires a judge to review the evidence and establish that the search is reasonable. The point of the Bill of Rights is to protect citizens from unreasonable government intrusion. This would seem to be particularly applicable in the case of the IRS where the penalties can be severe, such as monetary penalties and, in some cases, even imprisonment. We should also be reminded that tax liability continues throughout one's life, at least in theory.

The question as to whether there is an expectation of privacy may also be more complex in this case than in others. While it is a legal term, it is doubtful that many users do not have an expectation of privacy in regards to their email. Why else do we give our email accounts passwords? In many ways email can be more "personal" than other aspects of citizens rights protected by the fourth amendment. Emails not only reflect what we wish to communicate to one another, but also, in some cases reflect our deepest thoughts. There is also an argument that much of the content of "papers and effects" mentioned in the Fourth Amendment may now take place electronically. Indeed, whereas people may have kept their tax returns and related correspondence on paper in the past, the government itself has even supported the move towards increasingly using the internet and third party servers. Users are encouraged, for instance, to file their returns online and can email questions to the IRS.

Given the widespread usage of electronic communications, in fact, it is arguable that many Americans tend to view their right to privacy in regards to email closer to the way that they might review a phone conversation or so-called "snail mail," other ways of communicating that have traditionally required a warrant. Perhaps our conceptions of rights have not yet adequately evolved to include the modern information age. In response to the ACLUs, accusation, the IRS has recently denied claims that it requests access to the contents of emails without a warrant. In the meantime, however, perhaps users would do well to be wary and engage in data encryption or at least take important emails off of third party servers.

Did you resolve the issue of whether the statute applies? If you did not, why didn't you? If you have resolved the issue of whether the statute applies, and it does, why does the position taken by the IRS lawyers have any appeal for you? If the statute does not apply, why is the case of email stored in someone else's warehouse not to be decided as it would be if it were physical journals or received postal mail stored in someone else's warehouse, in premises to which the warehouse owner has routine access? The present draft seems to leave the important legal analysis out, in order to reach a general constitutional issue that may not conceptually exist.

But what, in fact, does any of this have to do with taxes? The IRS is said by a newspaper on the basis of statements we haven't seen to be taking a legal position that has nothing to do with its particular powers to lay and collect taxes, but simply as an entity that conducts federal criminal investigations. What has the Boston Tea Party to do with it, any more than the Battle of Bunker Hill?

In revision, the first step is to get the primary materials, rather than relying on that well-known legal publication, the Daily News. Get the ACLU materials, including the docket from Pacer on any litigation it has filed. Pin down the context in which IRS is said to have taken this position, and get the words of the Service or its representative. The second step is to bring the legal analysis to bear. Is ACLU asserting that the Service searched email to which ECPA applies in violation of the statute's terms? Does IRS deny that it is subject to the ECPA, or that the ECPA applies? What is your analysis on these points, given the statute and the facts as set forth in the primary materials or litigation papers you have seen?