IRS Says it can Read Your Emails

By Raul Rivera

It is a telling sign of the times in which we live.  A few days ago, a report came out in many news agencies that the IRS believes it can read the emails of taxpayers, including businesses, non profits, and churches by simply sending a subpoena (demand) to the Internet service provider that stores your emails.  Under the Constitution, our right to privacy prevents the government from prying into our lives unless they first go to a court and present a reasonable and convincing argument for needing the information.  A sufficient argument usually consists of convincing the court that a probable crime has been committed (probable cause).  This is called due process. 

The IRS, however, does not believe that due process applies because they claim that emails do not provide a reasonable expectation of privacy and therefore they are not protected under the Constitution.  Documents obtained by the ACLU under the Freedom of Information Act reveal that the IRS has informed its agents that they can go through and read taxpayer emails without a warrant.  They also told the agents that they can scan Facebook pages and other social media sites for any information that could lead to a tax assessment.  To be fair, the IRS issued a statement denying the allegations.  Yet, the ACLJ and the ACLU both disagree and have documents that reveal the contrary.

Is there protection?

In 1986, Congress passed a law called the Electronic Communications Privacy Act (ECPA).  Notice its name.  It is supposed to be a law to protect your privacy.  In a nut shell here is what the law says.  Government cannot read or access your private electronic information without a warrant unless the information is more than 180 day old or has already been opened.  I have noticed that many laws passed by Congress have oxymoronic titles.  It authors a law that by its title appears to be designed to better protect its citizens, but in effect it is the exact opposite.

The tax gap

The IRS has the gruesome job of collecting taxes.  The most recent tax gap report shows the amount of tax that is owed to the IRS and how much of that tax is actually collected.  There is close to one-half trillion dollars out there that is owed to the IRS, 90% of it primarily due to underreporting and underpayment.  One can see why the IRS makes attempts to use any means available to collect taxes.  But, does the end justify the means?  Does making a nation feel unsafe in its private conversations justify the collection of taxes?  This is the world of ministry we live in today.

Data mining

What happens to the conversations you have with your tax consultant?  What if you discover that your church has been operating outside of compliance and you have a very detailed conversation about the mistakes of your past?  For example: what if you have never reported your housing allowance on Schedule SE of your tax return and paid the self-employment tax, and you later learn you should have been doing so because your accountant sends you an email.  If the IRS is allowed to continue its course, these conversations will not be safe any more.  Under current IRS policy, the agency can mine your emails in search of any information it finds that can be used to issue a tax assessment.

What I think will happen

This is a topic that is very sensitive with many people.  Since the report first surfaced, thousands of people have contacted their representatives.  I believe that sometime in the near future, the 1986 Electronic Communications Privacy Act will be amended to ensure that emails get sufficient protection.  Otherwise, as it happened in the 6^th circuit court of appeals, in Warshak v. United States, it affirmed an individual’s expectation of privacy in emails.  It ruled that sections 2703(b) and 2705(a), which gave government free access to emails that were more than 180 days old, were unconstitutional.

Nothing to fear

As a former pastor, I understand the difficulties and struggles that many pastors go through in their efforts to grow the church.  Often times as the church grows it gets busier and busier and the one thing that goes to the wayside is legal and tax compliance.  It is extremely important that you not let that happen at your church.  While it may seem burdensome, if you work on creating the right infrastructure, legal and tax compliance can become an automatic thing that occurs without much effort.  It takes work up front, but once accomplished, it will yield years and years of fearless ministry.  We can show you how.