In IRS Chief Counsel Advice 201141017, an IRS agent tried to obtain a taxpayer’s e–mail contents from the taxpayer’s Internet Service Provider (ISP) without a warrant. The taxpayer’s ISP refused the IRS agent’s request, citing provisions of the Stored Communications Act (18 U.S.C. §§ 2701–2711) and United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). The agent asked the IRS Chief Counsel how to proceed, and the Chief Counsel advised the agent not to request the taxpayer’s e–mail contents from the taxpayer’s ISP.
In this situation, the IRS agent believed that a shell company improperly received over $250,000 of tax refunds, so the IRS agent was trying to trace where the money went. The IRS agent used an IRS administrative summons under § 7602 of the tax code to request the contents of the taxpayer’s e–mails, including e–mails received within 180 days of the summons.
First, the IRS Chief Counsel advised that this IRS administrative summons should be withdrawn because it violates § 2703(a) of the Stored Communications Act, which requires that a governmental entity obtain a warrant to compel disclosure of the contents of an electronic communication that is in electronic storage for 180 days or less. Here, the IRS agent had not obtained a warrant and “would not be eligible to seek a warrant for the civil (as opposed to criminal) tax law provisions he is engaged in seeking to enforce in this case.”
Second, the IRS agent asked whether the agent could request from the taxpayer’s ISP only the contents of the taxpayer’s e–mails that were in electronic storage for more than 180 days, without a warrant. But, the IRS Chief Counsel advised the IRS agent against doing this citing the Warshak case. The Warshak case concluded that the Stored Communications Act provisions that allow a governmental entity to compel disclosure of the contents of an electronic communication that is in electronic storage for more than 180 days without a warrant are unconstitutional because they are an unreasonable search and seizure in violation of the Fourth Amendment. Although the IRS Chief Counsel points out that the Warshak case was a Sixth Circuit decision while the taxpayer’s ISP is located in the Ninth Circuit, the IRS Chief Counsel advises: “In short, we do not believe there is any reasonable possibility that the Service will be able to obtain the contents of this customer’s e–mails that are more than 180 days old through a modified summons upon this ISP without protracted litigation, if at all.”
Third, the IRS agent asked whether the agent could request from the taxpayer’s ISP only “non–content information for electronic communications services specified in 18 U.S.C. § 2703(c)(2) for the customer (e.g., name, address, length and type of service, and means of payment).” For this question, the IRS Chief Counsel advised that the IRS agent may obtain this “non–content information” from the taxpayer’s ISP without a warrant, and this has been upheld by the courts. This can be accomplished using an IRS administrative summons under § 7602 of the tax code, without notice to the ISP’s customer, and it can even be used to obtain the credit card number or bank account number used to pay for the e–mail service (see 18 U.S.C. § 2703(c)(2)(F)).
Although this IRS Chief Counsel Advice 201141017 cannot be used or cited as precedent, this is still helpful for taxpayers to know the current IRS position on requesting e–mail contents from a taxpayer’s ISP or requesting “non–content information for electronic communications” (including name, address, length and type of service, and means of payment including credit card number or bank account number) from a taxpayer’s ISP. It’s also important to note that the taxpayer’s ISP plays an important role in the process—in this situation, the taxpayer’s ISP protected the rights of its customer by denying the initial IRS administrative summons sent by the IRS agent because the summons was too broad.
