Last week, Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) reintroduced S. 1657, the "ECPA Modernization Act of 2017,” which would expand privacy protections for individuals’ electronic information.
Under the Fourth amendment, a citizens “papers and effects” are protected from government seizure without a warrant. As technology has advanced, Americans now more than ever, rely on electronic forms of communication for both personal and business matters. Under the outdated Electronic Communications Privacy Act (ECPA) of 1986, the government can access an individual's information without a warrant after it has been stored for 180 days. This is a direct violation of the Fourth amendment that needs to be halted by extending those same protections to electronic communications and data.
Many consumers are aware that law enforcement can take advantage of the outdated ECPA, but few realize that other government agencies, including the Internal Revenue Service (IRS), frequently abuse current inadequate rules.
In 2013, the American Civil Liberties Union discovered that the IRS understood that they had the right to access individuals private emails, due to a lack of legal statute defining privacy for electronic communication. An IRS handbook reflected this sentiment stating, “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.”
Eight years later, the IRS still operates under the 180 day rule established in 1986. This allows the IRS to obtain information that has no relevance to an active investigation, merely because an internet user should not expect to have that level of privacy while working on the internet.
Over the past decade the IRS has expanded its power. With the ability to obtain information without a warrant, the IRS and their enforcement branch have begun opening up “investigations” into private citizens. Under a law designed to combat drug dealers and career criminals, the IRS can look at individuals’ financial records and seize their assets if investigators find “suspicious activity”.
Without any judicial approval or actual evidence of a crime, the IRS seized $107,702.66 from a North Carolina business owner in 2015 for “suspicious” activity. More recently, using the same procedure, the IRS seized all the property of a small wedding boutique and promptly sold the it at below market value. In both cases the small business owners lost everything. It’s clear that anyone concerned about increasing overreach, civil asset forfeiture abuse, and misuse of taxpayer information on the part of the IRS, should be equally troubled by a lack of electronic data privacy. The ability of the IRS to obtain private information without a warrant helps them carry out these unconstitutional searches and seizures.
The “ECPA Modernization Act of 2017” is a bill whose time has come; these are fundamental protections and taxpayers shouldn’t have to wait further to have their privacy secured. NTU thanks both Senators Lee and Leahy for introducing this bipartisan effort and encourages all Senators to cosponsor this bill. Privacy remains a pillar of American society and Congress should work to ensure that our laws keep up with changing technology.