The IRS trying this would be a great benefit to us all, short of congress getting their act together and revising the ECPA, and the EFF would love nothing more than to take up the case. Considering that it has already been confirmed that Google is requiring warrants and Microsoft has taken such a strong stand while releasing their latest transparency report, it seems like we also have at least two corporate sponsors (and, actually, this is a bad position for most companies to be in, as many email providers can't easily figure out which Appeals Court their customer falls under. This exposes them to risk if they disclose email content without a warrant, which is another motivation to take the conservative approach and ask a court to decide if they have to disclose emails with only a subpoena).
Re:IRS claims it can read your e-mail without a warrant
by rayiner on Wednesday April 10, 2013 @06:08PM
(#5528535)
The Sixth Circuit's decision certainly holds higher weight than mine, but that doesn't make it national law. Until more circuits agree with the Sixth, the IRS handbook is absolutely correct when it states that there is generally no privacy interest in e-mail and other electronic communications.
Re:IRS claims it can read your e-mail without a warrant
by magicalist on Wednesday April 10, 2013 @06:23PM
(#5528607)
You're speaking of the third party doctrine, which isn't strictly law, more a collection of precedent, and has never been ruled to actually apply to retained email. If you read the 6th Circuit's decision, you'll see a number of statutes that directly contradict the 180-day provision, and which give an additional legal basis for the protection of emails beyond just an interpretation of the 4th as overriding the law and striking it as unconstitutional.
> "Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.... It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve."[1]
And of course their opinion carries quite a bit more weight, to the point that both Google and Microsoft, at least, put their disagreement with the IRS in writing, requiring a warrant before disclosing the content of emails, regardless of the age of those emails.
ctrl-f "warrant" in both of these for more details, but here are some snippets. From Google:
> "On the face of it, ECPA seems to allow a government agency to compel a communications provider to disclose the content of certain types of emails and other content with a subpoena or an ECPA court order (described below). But Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure....
> The threshold is higher still for an ECPA search warrant. To obtain one, a government agency must make a request to a judge or magistrate and meet a relatively high burden of proof: demonstrating "probable cause" to believe that contraband or certain information related to a crime is presently in the specific place to be searched. A warrant must specify the place to be searched and the things being sought. It can be used to compel the disclosure of the same information as an ECPA subpoena or court order—but also a user's search query information and private content stored in a Google Account, such as Gmail messages, documents, photos and YouTube videos. An ECPA search warrant is available only in criminal investigations."[2]
And from Microsoft:
> "Does Microsoft reject subpoenas from law enforcement seeking content data?
> Yes. We require an order or warrant before we will consider releasing content. Like other companies, we implemented the holding of U.S. v. Warshak, which held a provision of the Electronic Communications Privacy Act to be unconstitutional."[3]
[1] https://www.eff.org/files/warshak_opinion_121410.pdf
[2] http://www.google.com/transparencyreport/userdatarequests/le...
[3] http://www.microsoft.com/about/corporatecitizenship/en-us/re...