Watch out, a new and unwanted stranger may be reading your e-mails to your grandmother. On Thursday it was reported that the Internal Revenue Service could read e-mails without getting a warrant. This, however, is not due to its primary job of collecting taxes.
Instead it turns out that the IRS is responsible for investigating criminal violations of tax law. In that respect the agency has law enforcement power to carry out its mission, much like how the Secret Service has powers to pursue its mandate to investigate and prevent counterfeiting of United States currency. Although very worrying, such information should not come as a surprise to any who has been following how the government has been interpreting the intersection of its law enforcement powers and citizens' privacy.
Federal on-line privacy laws have been criticized for being archaic and incredibly expansive. The primary law concerning e-mail is the 1986 Electronic Communications Privacy Act (ECPA). One major criticism of the ECPA is that e-mail stored on a third party server, the majority of all e-mail sent out today, for more than 180 days is considered abandoned. In the past most e-mail was not stored that long due to concerns over storage space. But in this age of cheap storage, services such as Gmail and Yahoo often store e-mail indefinitely. Law enforcement agencies are not required to obtain a warrant when requesting such information from third parties and only require a written statement saying that the information is relevant to an investigation. No judicial review is required for that statement.
The IRS is not the only agency involved in checking on your e-mails. The National Security Agency is building a $2 billion dollar spy center that will be involved in monitoring electronic communication and signals. By law, the agency is only supposed to gather intelligence on foreign communications. During the George W. Bush presidency, though, there was a scandal in which the New York Times broke news of the agency monitoring thousands of e-mails belonging to domestic citizens without warrants. Back in February the Supreme Court decided 5-4, on grounds of standing, to dismiss a lawsuit by the American Civil Liberties Union that challenged the FISA Amendments Act. The act authorizes the NSA to engage in surveillance of Americans' international e-mails and phone calls without identifying its target to a court.
The Federal Bureau of Investigation has also sought expanded law enforcement power concerning electronic communications. The agency wants the ability to monitor and wiretap e-mail, cloud services, and on-line chat providers, such as Skype. Other targets include services such as chat function in on-line games, for example Facebook's Scrabble. The Department of Homeland Security maintains a list of keywords that it monitors social media for, including the words cloud, burn, leak, pork, and worm.
The revelation that the IRS may be monitoring your e-mails should come as no surprise. In the wake of the September 11 terrorist attack, government agencies have sought repeated expansions into gaining new0 law enforcement powers. And they have usually been very successful in getting what they want.