IRS Targeting of Tea Party Groups Shows Need for ECPA Reform

Today the Internal Revenue Service admitted to targeting conservative nonprofit groups for additional scrutiny in 2012. According to the Associated Press, the IRS targeted organizations that used the terms “tea party” and “patriot” in applications for tax-exempt status. These groups were reportedly asked for lists of their donors, which is against IRS policy in many cases. The IRS also sent Tea Party groups “lengthy, intrusive questionnaires” that some believe were an effort to stymie their applications for tax exempt status. Despite the IRS’s claims that this targeting was not politically motivated, Tea Party and other conservative groups are rightly upset. In fact, every American, regardless of political ideology, should be troubled.

This revelation is all the more worrisome in light of IRS documents that were recently released in response to FOIA requests submitted by the ACLU; these documents suggest the agency doesn’t believe it’s required to get a warrant before reading Americans’ emails.

This stance by the IRS is based on its interpretation of the Electronic Communications Privacy Act (ECPA), an outdated federal law that sets the standards for when the government can access our digital communications. This interpretation flies in the face of Americans’ basic Constitutional right “to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures.”

Congress has been slow to update ECPA, despite longstanding calls to do so from tech companies, startups, and advocacy groups, both conservative and liberal. This means our Fourth Amendment protections, which secure us from unwarranted government searches of our postal mail and documents we store in our homes, for example, don’t fully apply to our stored email or private documents in the cloud, at least according to the interpretation of government agencies like the Department of Justice and the IRS.

The Fourth Amendment and an independent judiciary help protect against political abuses by the executive branch. In the case of Tea Party organizations, the IRS asked for the documents directly from those groups. What if it didn’t even have to ask? What if the IRS could just go to the groups’ cloud provider with a subpoena and get the same information without the organization ever knowing until much later? Unfortunately, that’s the current state of the law.

However, an ECPA reform bill progressing through the Senate, cosponsored by Senators Patrick Leahy (D-VT) and Mike Lee (R-UT), would guarantee that government agents get a warrant before accessing private digital information. This legislation, known as the ECPA Amendments Act (S. 607) was approved with strong bipartisan support at the Senate Judiciary Committee and recently received the endorsement of nearly 100 major tech organizations from across the political spectrum. It would put a judge between your documents and the government’s efforts to read them.

At least one Senate Republican, Judiciary Ranking Member Chuck Grassley (R-IA), has expressed concern about the IRS’s potential email “snooping,” which he noted at the Judiciary Committee vote on the ECPA Amendments Act last month. Today’s news is a stark example to all Members of Congress, Republicans and Democrats alike, that the time to update ECPA is now. If you want to contact your Members of Congress to tell them to support ECPA reform, go to VanishingRights.com and send them an email or, more importantly, give them a call.