In a blog post by Nathan Freed Wessler, a staff attorney at the ACLU, it looks like Big Brother Government feels they have the right to read your emails without a warrant. How serious is this? Probably pretty serious, since it flies in the face of the Fourth Amendment (as confirmed by the 6th Circuit Appeals Court) and a portion of the Electronic Communications Privacy Act (ECPA). The the exclusions are email that has been opened but left on a server more than 180 days (considered to be abandoned) and email that is unopened. These two specific instances do not require a warrant. In the golden days of POP3 email delivery, where a user was expected to download every message, some of this made sense (except the unopened email part). However, in these days of remote mail access and nearly endless on-line data storage, it doesn’t.
This being said, Mr. Wessler admits that the documents don’t explicitly indicate that the IRS can bypass the constitutional requirements for probable cause and judicially sanctioned warrants. Conversely, they don’t say that the IRS can’t either. Before the 6th Circuit Appeals Court’s findings, the IRS’ own Search Warrant Handbook indicated the following:
“the Fourth Amendment does not protect communications held in electronic storage, such as email messages stored on a server, because internet users do not have a reasonable expectation of privacy in such communications.”
Folks can say what they want about the ACLU, mostly because of their continued work to maintain the separation between church and state, but I am personally thankful that they are helping to uphold our guaranteed rights.