“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 communication,” wrote IRS Criminal Tax Division’s Office of Chief Counsel in 2009.
Under a law widely acknowledged as an antiquated privacy law called the Electronic Communications Privacy Act (ECPA), governments can access emails opened or older than 180 days without a search warrant. The giant loophole was responsible for the notorious resignation of General David Petraeus after the FBI gained access to his mistress’ incriminating emails.
Recognizing that people now regularly store email in the cloud indefinitely, a federal court in U.S. v. Warshak needed probable cause to compel a company like Google to hand over access.
Here’s the kicker: The IRS won’t say whether it now applies the privacy protections in Warshak to its investigations. Sometimes, what isn’t said can mean more than what is.