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Why Clinton Foundation Whistleblowers’ Case Against IRS May Cause US Political Dynasties to Shiver

By Ekaterina Blinova – Sputnik – February 12, 2020

While the mainstream media in the US was preoccupied with Donald Trump’s impeachment another legal drama has been unfolding since March 2019, namely Lawrence W. Doyle and John F. Moynihan v Internal Revenue Service (IRS). Wall Street analyst Charles Ortel has explained why the case matters more than the impeachment saga.

Lawrence W. Doyle and John F. Moynihan, both graduates of the Catholic Jesuit College of the Holy Cross and independent expert forensic investigators, came to prominence on 13 December 2018 when they testified before the House Oversight and Government Reform Committee on the Clinton Foundation’s alleged fraud.

According to them, the charity does not operate as a tax-exempt 501(c)(3) organisation and has acted as nothing short of a foreign agent “throughout its existence”. Summarising their conclusions the two Jesuit alumni suggested that the Clinton Foundation owes between $400 million and $2.5 billion in taxes and informed US lawmakers that if the IRS refuses to consider their “tax claim” they would appeal to the US Tax Court. According to Zero Hedge, the ongoing litigation is apparently related to this very case.

Multinational Charities “Perfect” Disguise for Money Laundering

Charles Ortel, a Wall Street analyst and investigative journalist who has been conducting a private inquiry into the Clinton Foundation for several years opines that the aforementioned legal case may involve unprosecuted crimes by some “charities” operated by political dynasties and may even put the IRS itself under the microscope.

“I believe that Doyle and Moynihan, like most concerned citizens, want the IRS to enforce charity laws and regulations fairly, without regard to whether a given charity might be linked to a Republican, Democrat, or Independent person,” he says, specifying that the precise claim and details of the legal case in question are unknown since they’re sealed by the court.

According to Ortel, multinational charities have become “perfect” vehicles for disguising money laundering and influence peddling since regulators do not have enough resources to check their revenues and spending scrupulously especially when these non-profits are operating abroad.

“Compounding the above problems is the fact that numerous foreign actors including governments, companies, and individuals are eager to curry favour with sitting or rising politicians who, typically, are also hungry for financial support,” he suggests. “While foreign interests are barred from directly supporting or financing political candidates, they are allowed to ‘contribute’ to charities in which dynastic political families have interests or associations.”

Why IRS & FBI Turns a Blind Eye to Loosely Operated Charities

To illustrate his point Ortel referred to the Clinton Foundation that has repeatedly come under the spotlight being suspected of alleged “pay-to-play” schemes. Echoing Doyle and Moynihan, Ortel believes that the Clinton Foundation cannot be called a “charity” since its operations in the US and abroad go beyond charitable activities. Furthermore it is neither validly organised nor properly audited, he highlights. The Wall Street analyst raises the question as to why the supposed violations have remained unnoticed by the FBI and IRS for over a decade.

Referring to page 432 of the first IG Horowitz Report, Ortel notes that the FBI opened investigations into the Clinton Foundation in January 2016. By July 2016, the IRS too confirmed that they had opened a Clinton Foundation investigation, he points out. However, nothing has been heard since then about the cases.

The Washington Post reported on 10 January that John Huber, the US attorney in Utah, who was appointed by then-Attorney General Jeff Sessions in November 2017 to look into the FBI handling of possible corruption at the Clinton Foundation and Hillary Clinton’s alleged pay-to-play schemes during her tenure as secretary of state, “found nothing worth pursuing.” The media outlet specified, however, that “the assignment has not formally ended and no official notice has been sent to the Justice Department or to lawmakers”, citing knowledgeable sources.

“What I suspect is that bureaucrats and others in the IRS and Department of Justice have been reluctant to press into their investigations because high level current and former politicians and powerful donors, across the political spectrum are likely implicated in trafficking influence through these false-front charities, and others”, Ortel presumes.

US Debt is Soaring While “Charities” Sit on Trillions

The Wall Street analyst explains why financial violations and fraud on the part of charitable organisations are fraught with risks for national economies and societies.

“One hopes that the overwhelming majority of American charities abide by relevant laws”, he says. “This is likely true concerning charities that tackle local, state, or national challenges, but American charities and foreign charities that operate internationally are rife with potential for fraud and corruption.”

He points out that this is particularly true when it comes to disaster relief when “pocketbooks open instantly and large sums swarm” towards various “tax-exempt organisations” often connected to celebrities that say they are going to help.

Ortel bemoans that fact that “afterwards, too frequently as in the case of Haiti, for example, there is no rigorous accounting for the vast sums claimed as donations or expenses”. The Clinton Foundation’s role in fundraising to tackle the consequences of the 2010 Haiti earthquake is still triggering controversy and was addressed by Donald Trump during his 2016 campaign.

“In 2020, America has run up a mountain of government debt and we see little progress in paring back soaring annual government deficits that add to our monstrous debt pile”, the investigative journalist emphasises. “At the same time, loosely regulated charities, some funded by monopolists and near monopolists sit on trillions of dollars of unencumbered assets inside private foundations or public charities.”

According to him, if the IRS and Department of Justice did their best to enforce existing laws and regulations that prohibit certain tax-exempt organisations from enriching themselves “vast sums could be raised to help reverse erosion in [the US] national balance sheet”.

Ortel expresses hope that the effort spearheaded by Doyle and Moynihan will help restore confidence in the administration of justice.

February 12, 2020 Posted by | Corruption, Deception | , , | Leave a comment

IRS Claims Two Years Of Emails Were Destroyed In A ‘Computer Crash;’ Congressman Asks The NSA To Supply ‘Missing’ Email Metadata

By Tim Cushing | Techdirt | June 16, 2014

The IRS is currently being investigated by Congress for some possibly politically-motivated “attention” it directed towards “Tea Party” and other conservative groups that operated as tax-exempt entities. Along the way, IRS official Lois Lerner, who was the first to publicly disclose the inappropriate targeting, was also one of the first government officials to plead the Fifth (twice) in government hearings.

The Congressional investigation demanded copies of Lois Lerner’s emails from the IRS. Some were turned over to the House Ways and Means Committee, but not everything it sought. Now, the IRS is telling the committee that it’s not going to get everything it asked for.

The IRS has told Congress that it lost more than two years’ worth of emails involving former IRS official Lois Lerner, due to a computer crash.

House Ways and Means Committee Chairman Dave Camp (R-Mich.) on Friday said it was “unacceptable” that he was just learning of this problem now, after a lengthy investigation into Lerner’s involvement in the IRS targeting scandal.

Camp points out that the IRS withheld these emails for over a year before suddenly “discovering” they were unavailable. The IRS says it can find everything Lerner sent to and received from other IRS employees but nothing containing correspondence with those outside the agency.

Obviously, this convenient “computer crash” has generated a lot of skepticism. For one thing, a “computer crash” doesn’t really have the power to destroy electronic communications. Email is almost always stored somewhere else other than the local user’s computer. And even if the IRS meant a “server crash” instead of a “computer crash,” any decent server system contains multiple levels of redundancy.

The Blaze sought input from Norman Cillo, a former Microsoft project manager, who presented six reasons why he believes the IRS is lying about its inability to recover these emails. Number one on the list seems to be the most applicable.

I believe the government uses Microsoft Exchange for their email servers. They have built-in exchange mail database redundancy. So, unless they did not follow Microsoft’s recommendations they are telling a falsehood.

The IRS’s own policies on email state that its employees use both Microsoft Outlook and Exchange, which means it should have some form of backup available.

Secure Messaging enrollment is an automated process for all LAN accounts with an Exchange mailbox in IRS. You can find the instructions for configuring the Outlook client to use the certificates at the Secure Enterprise Messaging Systems (SEMS) web site:

According to Cillo, the only other explanation for the IRS’s inability to recover these emails is that the agency is “totally mismanaged and has the worst IT department ever.” Unfortunately, the government seems to have a lot of mismanaged and terrible IT departments, so this may be closer to the truth than anyone would really like to admit. Perhaps the general ineptitude of large government agencies is behind the Treasury Department’s policy that all email sent to or from IRS employees be “archived” via hard copy printouts.

If you create or receive email messages during the course of your daily work, you are responsible for ensuring that you manage them properly. The Treasury Department’s current email policy requires emails and attachments that meet the definition of a federal record be added to the organization’s files by printing them (including the essential transmission data) and filing them with related paper records. If transmission and receipt data are not printed by the email system, annotate the paper copy.

There’s more information here, citing the IRS’s own internal guidelines on tape backups, etc., that suggest further levels of redundancy, as well as the commissioner of the IRS testifying that the agency stores its emails on servers.

Critics believe the IRS has simply “vanished” the crucial emails in order to cut Lerner adrift and make it appear she acted alone. Any evidence that would tie outside government agencies (including the administration itself) into this situation has been deemed unrecoverable. Supposedly, there should be paper copies of the missing emails, but no one in Congress has requested these and the IRS certainly isn’t offering to look.

But one Congressman thinks he has a solution to the missing email dilemma. Steve Stockman (last seen here threatening to bring a defamation lawsuit against someone who uttered true facts about his criminal past) knows some people who have a whole lot of email data just laying around.

“I have asked NSA Director Rogers to send me all metadata his agency has collected on Lois Lerner’s email accounts for the period which the House sought records,” said Stockman. “The metadata will establish who Lerner contacted and when, which helps investigators determine the extent of illegal activity by the IRS.”

Yeah, let me know how that works out for you, Steve. The NSA can’t even confirm or deny its monthly water usage at its Utah data site, much less that it has metadata pertaining to Americans’ communications.

[Sidebar: I do really love the fact that this sort of thing is becoming increasingly common — the use of the NSA as the backup-of-last-resort for phone/email/internet communications data. If anyone claims it can’t find email X or phone record Y, someone’s going to say, “Hey, I’ll bet the NSA has a copy!” Hilarious. The NSA will never again be allowed to pretend it doesn’t harvest data on American citizens.]

The whole letter, which begins with some light ass-kissing of new NSA director Michael Rogers (“thank you for your 33 years of, and continued service to, our country...”) and closes with a bit of grandstanding, surreally asking “the Agency” to send all relevant metadata on the missing Lerner emails to “” All in all, probably one of the most incongruous demands the NSA has ever received, a letter which conjures up the image of a late-night meeting in an underground parking garage, with sunglassed NSA liaisons handing over a briefcase full of metadata to a 19-year-old intern dressed in his dad’s suit.

It’s pretty hard to shake the impression that this is a coverup. As always, the specter of pure ineptitude lurks in the background, as it often does when large bureaucracies tangle with technology. But until the IRS presents further evidence detailing how exactly these emails went missing, it’s safe to assume there’s been an active effort made to cover up government impropriety.

June 16, 2014 Posted by | Civil Liberties, Corruption, Deception, Progressive Hypocrite | , , | Leave a comment

IRS chief defends targeting of groups as ‘obnoxious,’ not illegal

By Bernie Becker and Peter Schroeder – The Hill – 05/17/13

Acting IRS chief Steven Miller on Friday said he did not believe agency officials did anything illegal when giving extra scrutiny to conservative groups seeking tax-exempt status.

Miller, who was forced to resign this week by President Obama, said he didn’t believe the scrutiny was illegal even as he apologized for the IRS’s actions, which have turned into a political storm for the White House.

He also admitted under questioning from House Ways and Means Committee members that facts could emerge that might change whether he thinks anyone in the agency committed a crime, and he said one staffer involved in the extra scrutiny was reassigned and another received counseling.

Facing tense, and at times hostile, questions from GOP lawmakers at the first congressional hearing on the IRS controversy, Miller said the screening process the IRS used was “obnoxious” and called the customer service the agency offered “horrible.”

Miller stressed that the extra attention happened because IRS officials faced an avalanche of applications for tax-exempt status.

But he also pushed back on GOP lawmakers who said the IRS was targeting conservatives, calling that a “loaded” statement.

“When you talk about targeting, that’s a pejorative term,” Miller said.

Asked if the IRS’s actions had been illegal, he responded: “I don’t believe it is.”

He then added of the behavior: “I don’t believe it should happen.”

Miller’s answers did not sit well with GOP lawmakers throughout Friday’s hearing, and his comments fly in the face of top Republicans like Speaker John Boehner (R-Ohio), who have said that agency staffers should be jailed.

Republicans on Friday accused the acting IRS chief of lying to them about the extra scrutiny given to conservative groups seeking tax-exempt status. Miller found out about that special attention more than a year ago but declined to tell lawmakers.

At the start of Friday’s committee hearing, Chairman Dave Camp (R-Mich.) rattled off several different violations he believes the IRS committed.

Camp also linked the IRS uproar to what he called a “culture of cover-ups and political intimidation in this administration,” an apparent reference to last year’s attack in Benghazi, Libya, and the Justice Department’s subpoena of reporter records.

“This systemic abuse cannot be fixed with just one resignation,” Camp said. “And, as much as I expect more people need to go, the reality is this is not a personnel problem. This is a problem of the IRS being too large, too powerful, too intrusive and too abusive of honest, hardworking taxpayers.”

But Republicans on the panel have also expressed frustration throughout the hearing at Miller’s sometimes feisty answers, with the acting chief maintaining that he did not lie to them.

“You’re not going to cooperate with me, Mr. Miller, and you’ve been uncooperative in this hearing,” Rep. Dave Reichert (R-Wash.) told the IRS official.

Democrats acknowledged that the IRS had made serious mistakes and generally agreed with Miller’s statements that agency officials did not target Tea Party and conservative groups for political reasons.

“What I’m trying to point out, and basically to debunk, is the notion or idea the political statements — and, I believe, nonfactual statements by Chairman Camp — to link these scandals to the White House,” said Rep. Joe Crowley (N.Y.), a member of House Democratic leadership.

Democrats also stressed repeatedly that the Doug Shulman, who was IRS commissioner when the targeting took place, was nominated by former President George W. Bush. And several said that the major issue was the cloudy regulations guiding which groups should be granted tax-exempt status.

Miller is testifying along with Russell George, the Treasury inspector general whose report details what he called “ineffective management” at the agency.

George’s report found that the IRS asked for excessive information from conservative groups, including donor lists and whether group leaders wanted to run for public office. The IRS also applied inconsistent principles when deciding which groups to give extra screening, the report said, leading some groups to wait months or years for approval.

According to the inspector general’s report, Lois Lerner, the IRS official who first disclosed the targeting, found out in June 2011. Lerner pushed for the screening guidelines to be changed, but other IRS officials eventually went around her to change them again.

George’s report also says that IRS staffers assert that lower-level employees crafted the screening process and that they were not influenced by any outside group.

Miller on Friday acknowledged that Lerner’s disclosure of the IRS targeting last Friday came from a planted question.

Camp had said in his opening statement that he was interested in hearing why the IRS targeting occurred and why the agency kept it secret for so long, who started the extra scrutiny, and when President Obama and his administration found out.

But in a hearing break, he told The Hill that he wasn’t satisfied with the answers the panel was getting from Miller, a feeling shared by other Republicans.

“On the one hand, you’re arguing today that the IRS is not corrupt,” said Rep. Peter Roskam (R-Ill.). “But the subtext of that is you say, ‘Look, we’re just incompetent.’ And I think it is a perilous pathway to go down.”

May 17, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , | Comments Off on IRS chief defends targeting of groups as ‘obnoxious,’ not illegal

Decades of Political Tyranny at the IRS

By Karl Grossman | May 16, 2013

President Barack Obama got it right and wrong Monday when he stated, “If you’ve got the IRS operating in anything less than a neutral and nonpartisan way, then that is outrageous, it is contrary to our traditions.”

He was right in declaring it was “outrageous” for the IRS to target conservative organizations for tough tax treatment. But he was incorrect in saying “it is contrary to our traditions.”

For the U.S. Internal Revenue Service has for decades gone after organizations and individuals that take stands in conflict with the federal government at the time. This has been a tradition, an outrageous tradition.

It is exposed in detail by David Burnham, longtime New York Times investigative reporter, in his 1991 book A Law Unto Itself: The IRS and the Abuse of Power. He relates how President Franklin D. Roosevelt likely “set the stage for the use of the tax agency for political purposes by most subsequent presidents.” Burnham writes about how a former U.S. Treasury Secretary, banker Andrew Mellon, was a special IRS target under FDR. During the presidencies of Lyndon Johnson and Richard Nixon, he recounts, the focus of the IRS’s efforts “at political control” were civil rights organizations and those against the U.S. engaging in the Vietnam War. Nixon’s “enemies list” and his scheme to use the IRS against those on it is what the current IRS scandal is being most compared.

History Professor John A. Andrew III in his 2002 book Power to Destroy: The Political Uses of the IRS from Kennedy to Nixon—its title drawn from U.S. Supreme Court Chief Justice John Marshall’s  dictum “The power to tax is the power to destroy”—focuses further on this tradition. He tells of how John F. Kennedy administration’s “Ideological Organizations Project” investigated, intimidated and challenged the tax-exempt status of right-wing groups including the John Birch Society. Then, with a turn of the White House to the right with Nixon came investigations, he writes, of such entities as the Jerry Rubin Foundation, the Fund for Investigative Journalism and the Center for Corporate Responsibility.

During the Reagan administration, I had my own experience with the IRS—ostensibly

because of a book I wrote. Nicaragua: America’s New Vietnam? involved reporting from what was then a war zone in Nicaragua and in Florida—where I interviewed leaders of the contras who were working with the CIA to overthrow Nicaragua’s Sandinista government—and Honduras, being set up as a tarmac for U.S. intervention in Nicaragua. I visited a U.S. military base there. The book warned against a U.S. invasion of Nicaragua (subsequently decided against by the Reagan White House after the Iran-contra scandal). The book was published in 1985 and soon afterwards I was hit with an IRS audit. It would be more, I was informed, than my showing up at an IRS office. The IRS was to come to my house for a “field audit.”

The investigator sat on one side of our dining room table and on the other side was me and my accountant, Peter Berger of Shelter Island. What would be an all-day event started with the investigator asking me to detail how much my family spent on food each week and then, slowly, methodically, going through other expenses. Then he went through income. He obviously was seeking to determine on this fishing expedition whether income exceeded expenses. He went through receipts for business expenses including restaurant receipts, asking who I ate with. He sorted through receipts for office supplies. By mid-afternoon, he had gotten nowhere. At that point, having been hours together, a somewhat weird relationship had been formed. And he began to tell me how his dream in college was to become a journalist. He expanded on that, and then asked: “Have you ever faced retaliation?”

“What do you think this is?” I responded.

He was taken back—insisting my name had come up “at random.”

In the end, all he did was trim some of what was listed as business use of my home phone.

Was I being retaliated against for the book I had written?  One would never know. Recently, I ran into accountant Berger, now retired, and he commented about how that day at my house was the strangest IRS audit he had ever been involved in.

The IRS has been beyond reform. Burnham writes in A Law Unto Itself: The IRS and the Abuse of Power that a “political imperative of not messing with the IRS” has become “close to being a law of nature almost as unbending as the force of gravity.”  It is “rarely examined by Congress.”

President Obama announced yesterday that the acting commissioner of the IRS was asked and agreed to tender his resignation as a result of the scandal. That’s a small start. Far more important is somehow ending the tradition of IRS political tyranny. Fundamental change in the IRS is called for.

Karl Grossman, professor of journalism at the State University of New York/College of New York, is the author of the book, The Wrong Stuff: The Space’s Program’s Nuclear Threat to Our Planet. Grossman is an associate of the media watch group Fairness and Accuracy in Reporting (FAIR).


May 16, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , | 3 Comments

IRS Says It Will Respect 4th Amendment With Regard to Email, But Questions Remain

By Nathan Freed Wessler | ACLU | April 16, 2013

With tax day behind us, taxpayers may soon have something else to celebrate from the IRS. In testimony before the Senate Finance Committee today, IRS Acting Commissioner Steven Miller was questioned aggressively about documents released by the ACLU last week that indicate that the IRS does not think it needs a warrant to read all emails and other electronic communications during criminal investigations. Under pressure from senators, Miller agreed to update IRS policy documents within 30 days to state that a warrant is required for access to all emails, regardless of their age.

Two senators from opposite sides of the aisle, Senator Grassley (R-IA) and Senator Wyden (D-OR), pressed Miller about whether the IRS has sought or obtained emails without a warrant since a federal appeals court ruled in 2010 that a warrant is required for all emails. (You can watch the hearing here. Sen. Grassley’s questions start at 1:25:00 and Sen. Wyden’s questions start at 1:31:10.) They asked why the IRS seems to be ignoring that 2010 decision—United States v. Warshak—in most of the country, and advising its criminal investigative agents that emails stored on a server for more than 180 days can be obtained without a warrant. Surprisingly, Miller answered that the IRS follows Warshak across the country. That’s not what internal IRS documents and its public policy manual show, but if true it is welcome news. Importantly, Miller committed to clarify written IRS policy within 30 days to state that a warrant is always required.

Miller’s testimony leaves several important questions unanswered, however:

  1. Although Miller stated that the IRS Criminal Investigation unit obtains warrants for all emails, he did not discuss other forms of electronic communication such as text messages, instant messages, and direct messages on social media. Under the Fourth Amendment, a warrant should be required for those private communications as well.
  1. Miller stated that, to his knowledge, the IRS has not obtained electronic communications without a warrant in the past. But an internal IRS Chief Counsel Advice memorandum from 2011 reveals that, months after Warshak, IRS investigative agents requested emails from an internet service provider without a warrant at least once. The IRS should explain when it started following Warshak nationally, and whether it has sought or obtained emails without a warrant in the past.

We applaud Senators Grassley and Wyden for quickly taking up this important issue and getting an answer from the IRS, less than a week after the ACLU released the IRS documents. But while the IRS’s apparent change of policy is a step in the right direction, there is more for Congress to do. The current IRS policy manual relies on the outdated Electronic Communications Privacy Act (ECPA), which only requires a warrant for some emails and other electronic communications. In order to uniformly protect the privacy of Americans’ private communications, lawmakers must update ECPA to require a warrant for the contents of all electronic communications, regardless of age or other factors. Strong reform legislation has been introduced by a bipartisan group of sponsors, and is starting to make its way through the legislative process. Follow this link to urge Congress to modernize our electronic privacy law and close the loophole that’s letting the government access email and other electronic communications without a warrant.

April 16, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Comments Off on IRS Says It Will Respect 4th Amendment With Regard to Email, But Questions Remain

IRS Plans to Cut Back Auditing of Large Corporations

By Noel Brinkerhoff and Danny Biederman | AllGov | April 11, 2013

The Internal Revenue Service (IRS) has decided to spend less time auditing multi-million dollar corporations.

Under a new plan revealed to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), the IRS will expend 18% less effort auditing businesses with assets of $10 million or more compared with just two years ago.

The agency also sees itself devoting 14% less time for specialized revenue agents to conduct corporate audits in FY 2013, compared to what was allocated in FY 2011.

There has been less of a drop in the rate of individual taxpayer audits—5.3% in FY 2012, moving to 7% due to an increase in number of filed returns.

TRAC—which obtained the IRS planning document through a Freedom of Information Act request—noted that the reductions were decided upon before sequestration, which could result in the IRS implementing more cuts in the months ahead.

The IRS responded to the release of the TRAC report by pointing out that its budget was cut by $1 billion in 2010, and that its staff was reduced by 7,000 employees in 2011. It insisted that it maintains a fair balance between individual and corporate audits.

April 11, 2013 Posted by | Economics, Progressive Hypocrite | , , , , | 1 Comment

New Documents Suggest IRS Reads Emails Without a Warrant

By Nathan Freed Wessler | ACLU | April 10, 2013

Everyone knows the IRS is our nation’s tax collector, but it is also a law enforcement organization tasked with investigating criminal violations of the tax laws. New documents released to the ACLU under the Freedom of Information Act reveal that the IRS Criminal Tax Division has long taken the position that the IRS can read your emails without a warrant—a practice that one appeals court has said violates the Fourth Amendment (and we think most Americans would agree).

Last year, the ACLU sent a FOIA request to the IRS seeking records regarding whether it gets a warrant before reading people’s email, text messages and other private electronic communications. The IRS has now responded by sending us 247 pages of records describing the policies and practices of its criminal investigative arm when seeking the contents of emails and other electronic communications.

So does the IRS always get a warrant? Unfortunately, while the documents we have obtained do not answer this question point blank, they suggest otherwise. This question is too important for the IRS not to be completely forthright with the American public. The IRS should tell the public whether it always gets a warrant to access email and other private communications in the course of criminal investigations. And if the agency does not get a warrant, it should change its policy to always require one.

The IRS and Email: Reading Between the Lines

The federal law that governs law enforcement access to emails, the Electronic Communications Privacy Act (ECPA), is hopelessly outdated. It draws a distinction between email that is stored on an email provider’s server for 180 days or less, and email that is older or has been opened. The former requires a warrant; the latter does not. Luckily, the Fourth Amendment still protects against unreasonable searches by the government. Accordingly, in 2010 the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages.

However, the IRS hasn’t told the public whether it is following Warshak everywhere in the country, or only within the Sixth Circuit.

The documents the ACLU obtained make clear that, before Warshak, it was the policy of the IRS to read people’s email without getting a warrant. Not only that, but the IRS believed that the Fourth Amendment did not apply to email at all. A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts that “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 communications.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “4th Amendment Does Not Protect Emails Stored on Server” and there is “No Privacy Expectation” in those emails.

Other older documents corroborate that the IRS did not get warrants across the board. For example, the 2009 edition of the Internal Revenue Manual (the official compilation of IRS policies and procedures) explains that “the government may obtain the contents of electronic communication that has been in storage for more than 180 days” without a warrant.

Then came Warshak, decided on December 14, 2010. The key question our FOIA request seeks to answer is whether the IRS’s policy changed after Warshak, which should have put the agency on notice that the Fourth Amendment does in fact protect the contents of emails. The first indication of the IRS’s position, from an email exchange in mid-January 2011, does not bode well. In an email titled “US v. Warshak,” an employee of the IRS Criminal Investigation unit asks two lawyers in the IRS Criminal Tax Division whether Warshak will have any effect on the IRS’s work. A Special Counsel in the Criminal Tax Division replies: “I have not heard anything related to this opinion. We have always taken the position that a warrant is necessary when retrieving e-mails that are less than 180 days old.” But that’s just the ECPA standard. The real question is whether the IRS is obtaining warrants for emails more than 180 days old. Shortly after Warshak, apparently it still was not.

The IRS had an opportunity to officially reconsider its position when it issued edits to the Internal Revenue Manual in March 2011. But its policy stayed the same: the Manual explained that under ECPA, “Investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less using a [relevant-and-material-standard] court order” instead of a warrant. Again, no suggestion that the Fourth Amendment might require more.

The first indication that the IRS was considering the effect of Warshak came in an October 2011 IRS Chief Counsel Advice memorandum available on the IRS website but not provided in response to our FOIA request. An IRS employee sought guidance about whether it is proper to use an administrative summons, instead of a warrant, to obtain emails that are more than 180 days old. (The emails in question were located on an internet service provider’s (ISP) server somewhere in the territory covered by the Ninth Circuit Court of Appeals). The memo summarized the holding of Warshak and advised that “as a practical matter it would not be sensible” to seek older emails without a warrant. This is good advice, but the memo’s reasoning leaves much to be desired. The memo explained that Warshak applies only in the Sixth Circuit but that, because the ISP had informed the IRS that it did not intend to voluntarily comply with an administrative summons for emails, there was not “any reasonable possibility that the Service will be able to obtain the contents of this customer’s emails . . . without protracted litigation, if at all.” Any investigative leads contained in the emails would therefore be “stale” by the time the litigation could be concluded, making attempted warrantless access not worthwhile.

The memo misses another chance to declare that agents should obtain a warrant for emails because the Fourth Amendment requires it. Instead, the memo’s advice (which may not be used as precedent and is not binding in other IRS criminal investigations) is limited to situations in the Ninth Circuit where an ISP intends to challenge warrantless requests for emails. The IRS shouldn’t obey the Fourth Amendment only when it faces the inconvenience of protracted litigation; it should recognize that the Fourth Amendment requires warrants for the contents of emails at all times.

Finally, to the present: has the IRS’s position changed this tax season? Apparently not. The current version of the Internal Revenue Manual, available on the IRS website, continues to explain that no warrant is required for emails that are stored by an ISP for more than 180 days. Apparently the agency believes nothing of consequence has changed since ECPA was enacted in 1986, or the now-outdated Surveillance Handbook was published in 1994.

The IRS Owes the American Public an Explanation—and a Warrant Requirement

Let’s hope you never end up on the wrong end of an IRS criminal tax investigation. But if you do, you should be able to trust that the IRS will obey the Fourth Amendment when it seeks the contents of your private emails. Until now, that hasn’t been the case. The IRS should let the American public know whether it obtains warrants across the board when accessing people’s email. And even more important, the IRS should formally amend its policies to require its agents to obtain warrants when seeking the contents of emails, without regard to their age.

(We also sent FOIA requests to the FBI and other components of the Department of Justice—we will be receiving records from those offices in the coming weeks).

April 10, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Comments Off on New Documents Suggest IRS Reads Emails Without a Warrant