IRS believes Americans have no right to digital privacy

TAGs: Affiliate, Department of Justice, ecpa, electronic communications privacy act, Internal Revenue Service, IRS, sports betting

irs-expectation-privacyBeyond their sheer scale, Wednesday’s online sports betting indictments by the US Department of Justice were notable for a couple reasons. First, the DoJ now appears to consider US-based online gambling affiliates who promote international online gambling operators to be fair game. Among the 34 defendants listed on the Oklahoma indictment was one Gregory Wilson Roberts, whose National Consensus Sports Handicapping outfit operated a website ( that recommended Legendz Sports as a good place to get your wager on.

The DoJ appears to argue that since such promotion would earn Roberts a commission, it constitutes a violation of federal law against engaging in racketeering activity and/or the collection of illegal debts involving interstate or foreign commerce. Then again, Roberts is also accused of acting as an ‘agent’ on behalf of Legendz, and is cited on at least one occasion having sent payments to Legends (rather than the other way around) so his affiliate website may be the least of his worries.

Wednesday’s indictments were also notable for the amount of detail they contained that had been gleaned from the defendants’ digital communications and the Times Union reported that police and federal agents had monitored Skype videoconferencing discussions between some of the principals. Last year, civil liberty groups lambasted Skype for (a) refusing to clarify its stance on eavesdropping and (b) allegedly handing user data to a private security firm investigating pro-WikiLeaks activists. Skype’s willingness to hand over user data despite the absence of a court order compelling them to do so was particularly egregious, given that it contravened the company’s own privacy policy.

The Internal Revenue Service (IRS), which was given credit for helping to build both of Wednesday’s indictments, is also being singled out for its cavalier approach to privacy laws. On Wednesday, the American Civil Liberties Union (ACLU) posted its analysis of 247 pages of IRS documents it obtained via a Freedom of Information Act (FOIA) request, which reveal the IRS’ belief that it doesn’t require a warrant to read an individual’s email, text messages and other private electronic communications.

Under the outdated 1986 US federal Electronic Communications Privacy Act (ECPA), government agencies require a warrant to access emails stored on an internet service provider (ISP) for less than 180 days, but can access older emails using an administrative subpoena, which requires only an assertion that the info they seek is “relevant” to an investigation. In 2010, the US Sixth Circuit Court of Appeals’ United States v. Warshak decision declared that email contents were protected under the Fourth Amendment and government agencies needed to provide a probable cause warrant to compel ISPs to turn over any email data, regardless of its age.

But the documents obtained by the ACLU indicate that as late as 2010, the IRS believed email users “do not have a reasonable expectation of privacy in such communications.” In January 2011, the IRS had an internal discussion regarding the Warshak ruling and apparently concluded that it had changed nothing. In October 2011, the IRS issued a memo suggesting the Warshak ruling didn’t apply outside the Sixth Circuit’s jurisdiction (Kentucky, Michigan, Ohio and Tennessee). The ACLU is still waiting for FOIA responses from the FBI and other branches of the Department of Justice regarding their private opinions of the 180-day distinction.

Last month, the US Senate proposed updating the ECPA to require warrants for accessing emails regardless of their age. The DOJ has cautiously backed the proposed changes, saying there is “no principled basis” for the 180-day provision. However, law enforcement agencies are also proposing requiring US phone companies to create a huge database in which to perpetually store all text messages, just in case they develop an urge to investigate whether your ‘TTYL’ message really meant ‘thump those Yankee losers.’ later. Bottom line, regardless of what country you live in, that old caveat about emails having the same privacy limitations as postcards has held up surprisingly well and should be considered as extending to all forms of digital communication.


views and opinions expressed are those of the author and do not necessarily reflect those of