The enigma of the Electronic Communications Privacy Act
The other has to do with the strange provisions of the rapidly putrefying Electronic Communications Privacy Act (ECPA) of 1986, which holds that email messages older than 180 days could be considered "abandoned" and, thus, have a lower expectation of privacy under the law.
As the ACLU's Wessler notes, that provision was overturned by a Sixth District Court in 2010, which held that the government requires a probable cause warrant to read anyone's emails, no matter how old they are. The question the ACLU wanted answered: Is the IRS following the misguided advice in its old handbook, the Sixth District's decision, or something in between?
The answer is, we still don't really know. The current IRS handbook essentially follows the rules outlined in the ECPA, which state that older emails can be accessed using court orders, subpoenas, or administrative summons -- which require a lower standard of proof and less judicial oversight than a warrant. What we also don't know is a) whether the IRS has actually requested any older emails using the lower standards, or b) if any Internet service providers have complied.
Google leads the oppposition
Google, for one, has already told any feds trying to pry loose emails from them to get a warrant or go home. It's not clear what other ISPs have followed Google's lead, but there's a growing coalition of tech and libertarian groups that agree with the company's stance.
The real lesson here, of course, is that the ECPA desperately needs a makeover. It's so obvious even Congress agrees; the Senate passed an improved version of the ECPA last fall, and a House subcommittee is taking up the matter now.
The other lesson, also obvious: Don't believe everything you read on the Webbernets, especially if it comes from knicker-twisting, boxer-bunching bloggers.
Is the IRS spying on your emails? Post your tales of tax-induced paranoia below, or email me: firstname.lastname@example.org.
This article, "What could be worse than the IRS's grubby hands? Its spying eyes," was originally published at InfoWorld.com. Follow the crazy twists and turns of the tech industry with Robert X. Cringely's Notes from the Field blog, and subscribe to Cringely's Notes from the Underground newsletter.