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IRS Can Read Your Email Without Warrant 332

Posted by Soulskill
from the you-can-trust-us dept.
kodiaktau writes "The ACLU has issued a FOIA request to determine whether the IRS gets warrants before reading taxpayers' email. The request is based on the antiquated Electronic Communication Protection Act — federal agencies can and do request and read email that is over 180 days old. The IRS response can be found at the ACLU's website. The IRS asserts that it can and will continue to make warrantless requests to ISPs to track down tax evasion. Quoting: '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.'"
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IRS Can Read Your Email Without Warrant

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  • No expectation (Score:5, Insightful)

    by MyLongNickName (822545) on Wednesday April 10, 2013 @03:39PM (#43415167) Journal

    I certainly expect my email to be private. Okay, I expect it SHOULD be private. But the bottom line is if you are storing your data on other people's equipment, you have no guarantee of anything.

    • by sheehaje (240093)

      How does anyone expect email to be private? I still scratch my head at how many times emails have been used for indictments, yet people feel it is a reasonable secure mechanism - and this is internal email....

      Use encryption for sensitive data. We have a secure email system. It's reasonably protected. Sending plain email to the wild isn't.

      The simple of it - if you are putting stuff in unsecured email that can be used against you for tax evasion - you're doing it wrong.

      • Re:No expectation (Score:5, Insightful)

        by MyLongNickName (822545) on Wednesday April 10, 2013 @03:52PM (#43415321) Journal

        I agree. The difference is in the meaning of "expect". The IRS is using it in a legal sense, and they are wrong here. From a practical sense, one should not expect email to be confidential. From a legal aspect we should have that expectation.

        • by geekoid (135745)

          Are they? I haven't heard a good argument on why anyone should expect an email to be private. It's read and scanned by countless systems just to get it to its destination.

          Hint:postcards aren't private either.

          • Re:No expectation (Score:5, Insightful)

            by Jane Q. Public (1010737) on Wednesday April 10, 2013 @04:45PM (#43415929)

            "Are they? I haven't heard a good argument on why anyone should expect an email to be private. It's read and scanned by countless systems just to get it to its destination."

            No, it isn't.

            The header is, but that's what the header is for. No intermediate system (or email server, for that matter) has any reason to read or "scan" anything in the body of the email. There just isn't any valid technical reason to do that.

            I should point out that as far as "header" information is concerned (i.e., signalling required for source-destination communications), telephone lines are absolutely no different. There is source and destination information that is perfectly analogous to email headers, and then there is the "body" of the message: the actual voice content.

            Yet people DO expect phone conversations to be private. So explain to me why there should be any difference.

            • by Ash-Fox (726320)

              My mail server scans the body for spam and various malware.

            • by Sloppy (14984)

              The header is, but that's what the header is for. No intermediate system (or email server, for that matter) has any reason to read or "scan" anything in the body of the email. There just isn't any valid technical reason to do that.

              You're talking like a lawyer or civic rights advocate/idealist, and he's talking like a security-conscious person. You're saying there's no technical reason it's valid; he's saying there's no technical barrier which prevents it (unless you encrypted the body).

              It's not that you'r

        • by Zcar (756484)

          Except in the case when your email is stored on a third party's server. There's quite a bit of case law that you don't have a legal expectation of privacy with regards to information revealed to a third party, e.g. emails stored on a web mail provider's server.

          From the EFF (https://ssd.eff.org/your-computer/govt/privacy):
          "...some Supreme Court cases have held that you have no reasonable expectation of privacy in information you have "knowingly exposed" to a third party — for example, bank records or

          • Re:No expectation (Score:5, Insightful)

            by Jane Q. Public (1010737) on Wednesday April 10, 2013 @04:49PM (#43415989)

            " There's quite a bit of case law that you don't have a legal expectation of privacy with regards to information revealed to a third party, e.g. emails stored on a web mail provider's server."

            But there is no reason that emails on a server should be "revealed" to that party. Tell me: if you gave someone a sealed envelope and asked them to not read the contents -- even though there is absolutely nothing stopping them from tearing open the envelope and reading it -- does that constitute "revealing" the information?

            An ISP has to take positive, affirmative steps to read an email that is stored on their server. Just as someone working for a phone company has to take positive, affirmative steps to access the content of a phone conversation, or your voice mail.

            And voice mail, in particular, is comparable. Why should voice mails be private, yet emails not? Explain please.

        • Re:No expectation (Score:4, Informative)

          by Sarten-X (1102295) on Wednesday April 10, 2013 @04:19PM (#43415645) Homepage

          The IRS is using it in a legal sense, and they are wrong here. From a practical sense, one should not expect email to be confidential. From a legal aspect we should have that expectation.

          I am not a lawyer, but this guy is [tumblr.com], and he illustrates well how email is not legally private.

      • by jedidiah (1196)

        The fact that something can be accessed with a court order does not make it public. Your personal papers are free from search and seizure. The fact that it's easy enough for a burglar to steal doesn't alter their private nature or your rights.

        • by gstoddart (321705)

          Your personal papers are free from search and seizure.

          Except they've construed 'papers' so narrowly that unless it's actual paper in a file cabinet, it's fair game.

          Your phone, computer, email, and everything else is somehow excluded from this.

          • by geekoid (135745)

            no, not at all.

            If you had a postcard, and it was passed hand to hand from person to person, each person reading it to pass it on, you would have no expectation of privacy.
            Not until you put it into an envelope.

            With electronic communication that envelope is called encryption.

            • Re:No expectation (Score:5, Insightful)

              by Jane Q. Public (1010737) on Wednesday April 10, 2013 @04:55PM (#43416081)

              "With electronic communication that envelope is called encryption."

              Definitely not.

              For all practical purposes, that envelope is called SMTP.

              Let's get this perfectly straight: there is NO reason that any intermediate relay OR your ISP should have default access to your email. In order to do so, they have to take positive action to access it... akin to opening an envelope.

              Taking the concept of "envelope" as far as encryption is just wrong. SMTP and secure storage should be your envelope. Encryption is more like transporting your papers in a portable safe. Not the same thing at all.

        • "The fact that something can be accessed with a court order does not make it public. Your personal papers are free from search and seizure. The fact that it's easy enough for a burglar to steal doesn't alter their private nature or your rights."

          The EFF is arguing in the courts that today, email definitely qualifies as someone's "papers and effects", and therefore is Constitutionally protected from seizure or intrusion.

      • by Thruen (753567)
        Part of me does agree that you should encrypt sensitive data. On the other hand, if anybody else broke into and read your email, you'd never say it was your own fault for not encrypting it, nor would anyone else. Encryption can be a pain, and if you're emailing back and forth with someone who isn't computer savvy, there's a good chance they won't be able to figure it out anyway. Privacy shouldn't be an opt-in situation, you don't default to not having any because you don't go out of your way to keep it. We
      • by mk1004 (2488060)

        I'm wondering how this compares with snail mail. If I write a letter, hold on to it a few days at my home, mail it, the recipient reads it then holds on to it for some period of time. Except in cases where the sender or recipient voluntarily gives up the information, wouldn't a search warrant be required for any government official to get the info? They must get a warrant to search either house. They can't intercept mail without a warrant either, I believe.

        For email, usually a user name and password is requ

      • Telephone calls on a land line are not encrypted. They pass through a great deal of wire to get from point A to point B. Even so, the very notion of a reasonable expectation of privacy come from a case [wikipedia.org] involving a call from a public pay phone booth. From the Wiki article:

        The Court ruled 7-1 in favor of Katz, with Justice Black in dissent. Justice Marshall did not participate in the vote. Writing for the majority, Justice Stewart wrote, “One who occupies [a telephone booth], shuts the door behind him,

    • So wrong. (Score:4, Insightful)

      by Thruen (753567) on Wednesday April 10, 2013 @04:06PM (#43415473)
      Have you ever rented a home? By your logic, you have no expectation of privacy in a rented property or hotel room. You might be interested to know that it's already well established that (outside of television) your landlord can't even consent to a police search of your property, unless they meet the normal requirements for such consent such as if they also live there. Your email being stored on a server is like that, you're renting the space from the server owner, according to the terms they set forth when you signed up for the account. Unless those terms say they can go through your email or grant permission for others to go through your email, this is still illegal. I'll admit, laws regarding the physical world and the internet don't line up 1:1, but suggesting that there should be no privacy at all on the internet because of the way the internet works is a bit nuts.
      • I think the two terms are being confused, and we are actually agreeing on our positions.

        I agree there is a legal expectation of privacy.
        I know that there is not practical expectation of privacy. That is why you should encrypt email if you care about privacy.

      • by nabsltd (1313397)

        Have you ever rented a home? By your logic, you have no expectation of privacy in a rented property or hotel room. You might be interested to know that it's already well established that (outside of television) your landlord can't even consent to a police search of your property, unless they meet the normal requirements for such consent such as if they also live there. Your email being stored on a server is like that, you're renting the space from the server owner, according to the terms they set forth when you signed up for the account.

        Although I agree that e-mail providers should require warrants to release e-mail to any government agency, there really is a big difference between the two examples you cite.

        The term "house" is specifically used in the text of the 4th Amendment, and courts have basically ruled that this term refers to your home, whether that's a building you own or a single room in a shared apartment...essentially your "personal living space", where a polite person would be required to ask permission to enter. On the other

        • by causality (777677)

          The term "house" is specifically used in the text of the 4th Amendment, and courts have basically ruled that this term refers to your home, whether that's a building you own or a single room in a shared apartment...essentially your "personal living space", where a polite person would be required to ask permission to enter. On the other hand, the e-mail on the server is no different from you giving your personal papers to any random third party, mostly regardless of the relationship, with a few exceptions.

          Yes, because if the standard were the other way around, people would have too much privacy and obviously that would bring society to its knees!

          I think the difference is that the case law pertaining to your dwelling was established long ago, back when people thought the USA was special, back when the USA would ridicule many other nations of the world for treating their citizens more like subjects who had no rights, only privileges. Electronic communications were invented long after the US government beca

    • by tnk1 (899206)

      I think here the IRS is making a poor argument. Yes, while your mail is in other hands, you can't expect it to be absolutely private. On the other hand, your snail mail, or your phone conversations also go over other people's equipment/hands too. What matters is not the reality of whether it *can* be intercepted, because the answer with communications is almost always "yes". What matters is if we make sure that we define a domain of expected privacy and hold to it.

      It is clear to me that email, being per

    • by sycodon (149926)

      So my regular (snail) mail is kept in U.S. Post Office bins, trucks, planes, etc. during its transit to destination. Because it's "stored" on/in other people's equipment, it's fair game?

    • by SirGarlon (845873)

      But the bottom line is if you are storing your data on other people's equipment, you have no guarantee of anything.

      You have whatever guarantee the law and/or lawful contract provides. If you keep your money in a bank account (not a deposit box) then you are trusting the bank's guarantee they will not tamper with your balance. In most countries, that's a perfectly reasonable thing to expect.

      You are not going to get very far in life without trusting your data to someone else's server. For instance, you can't

    • by dougmc (70836)

      But the bottom line is if you are storing your data on other people's equipment, you have no guarantee of anything.

      Does this argument also apply to meatspace?

      If you're living in a place that is owned by somebody else, but you're paying rent on it, do you have any guarantee of privacy there?

      If you're storing your stuff in a storage locker that you're renting, do you have any guarantee of/right to privacy there?

      They're rhetorical questions, I do in general know the answers already, but really ... the answers regarding your e-mail, even if it's on a server somewhere, *ought* to be the same.

  • The IRS has a secret legal opinion that they CAN use lethal drone operations on a citizen noncombatant living in the United States.
  • by Anonymous Coward on Wednesday April 10, 2013 @03:40PM (#43415177)

    We don't have reasonable expectation of privacy to our electronic communications, but apparently the govt does. On top of that we pay for it.

  • by dcollins (135727) on Wednesday April 10, 2013 @03:41PM (#43415181) Homepage

    With this kind of "No Expectation of Privacy" thing that comes up (re: emails, phones messages, etc.) -- Hypothetically, what if someone did a scientific survey of U.S. residents and asked: "Do you expect that your stored email messages are private from the government? Do expect that the text messages stored in your phone are private from the government?". Then would there be any possibility that the results of such a survey would be usable in a future court case to knock down such foolishness?

    • by SirGarlon (845873)

      The "expectation of privacy" argument is bogus anyway. Here's how it works:

      1. Government violates citizens' privacy in {airport, government building, email, whatever}

      2. Citizens expect government to violate privacy elsewhere based on pattern of past abuse

      3. Government justifies next abuse of privacy based on 2.

      If I wanted to prove by mathematical induction [wikipedia.org] that there is no such thing as privacy, this is how I would do it. What part of:

      The right of the people to be secure in their persons, houses, papers, an

    • by b4upoo (166390)

      The entire legal issue of privacy is schizophrenic. Government agencies can now decode almost all encrypted material with ease. So how can they claim no expectation of privacy of emails? After all, some email is encrypted. Now picture a hacker breaking into the servers of a large corporation and simply looking around. What is the difference between a hacker viewing a corporations emails on their servers and a government agency viewing your email on Yahoo's servers? In essence we have lost the i

    • by tnk1 (899206)

      They do appear to be swayed into making their decision based on what is popular at the time, so polling like this could fuel a different judgement eventually as attitudes shift.

      Now, should it work that way? Probably not. The courts are at most, to interpret and clarify the law, and that interpretation probably should be consistent no matter what the time period. Otherwise, they are effectively legislating. Having legislative power bleed out into the executive and judicial branches does tend to blur sepa

  • by preflex (1840068) on Wednesday April 10, 2013 @03:41PM (#43415189)
    Really, if you're not encrypting your email, you have no reasonable expectation of privacy. If your communications are in plaintext, being passed around from server to server in plaintext, it would be absolutely stupid to expect that would be in any way private. It's about as private as a postcard: no envelope, all information plainly visible to anyone that handles it..
    • by iggymanz (596061)

      oh? if you're not encrypting your landline call you have no reasonable expectation of privacy? how about a snail-mail letter? e-mail does have an "envelope" to protect it, it takes either the equivalent of "wiretapping" for the government to get it in transit, or username/password to pick it up as regular user. however weak we know those protections are as geeks, the government should be held to warrant whenever it tries to stick its nose in a citizen's business.

      • by h4rr4r (612664)

        You are correct on the landline.
        If you expect that to be private you are very naive. All phone lines should be assumed to be tapped at all times.

        Regular mail is likely safe, but not very trustworthy. International mail is not safe and very likely to be opened.

        • by geekoid (135745)

          You suffer form delusions of paranoia.

          • by h4rr4r (612664)

            No, I am cautious.
            I know that 99.999% of the time my phones are not tapped. I don't know when that .001% is so I must treat the phone as tapped 100% of the time.

          • And yet, he's right. Tapping a normal phone line is the easiest thing in the world, you can learn how to do it in an hour or less.

            The question isn't whether your landline is private, the question is whether anyone cares enough to listen in on your conversations. If you want to be sure that your communication is secure, don't use a landline phone.
            • by h4rr4r (612664)

              Non-landline phones are not substantially more secure. Setting up fake towers and such is well known. Slashdot had an article about it in the last week.

              Like I stated I bet my phones are never tapped in my life, I am too boring. Since I cannot be sure of that, I must act as though they always are.

      • by emt377 (610337)
        It's not illegal for a service provider to read email they've stored for you. The only thing preventing them is internal policy - a google employee found reading email would likely be fired. But there's no criminal act there. By comparison, a postal worker who opens letters and reads them will go to prison. A telco worker who taps your phone likewise. Email isn't considered more private then you make it, so doesn't have legal protections.
        • by Predius (560344) <josh.coombs@TWAINgmail.com minus author> on Wednesday April 10, 2013 @04:21PM (#43415675)

          Clarification - In the US a service provider can view customer content on or transiting their equipment IF IT'S REQUIRED FOR NETWORK OPERATIONS. IE if there is a mail delivery problem an ISP IT monkey would be ok trolling through mailbox files looking at the smtp headers. Same ISP IT monkey would NOT be legally in the clear if he decided on a random Tuesday to read customer Bob's email for fun. If he went further and acted on the contents of Bob's email he'd really be setting himself up for a legal hurting.

        • by Amouth (879122)

          You know i wonder if you could argue another angle, the "and effects". Every e-mail I write is my own work, which has it's own copyright. the Media industry has pushed extremely hard for more than a decade to have digital copies of copyrighted works be treated as if they were physical goods. under that logic, them copying/reading my e-mails is equivalent to them stealing my personal copyrighted works.

          Just a random thought to throw out there.

    • No, not really. If I leave my door open, then very likely I'll be robbed. But does that make the robber's actions legal? No. Just because your email is plaintext and "asking to be read" doesn't make it okay for anyone, let alone the government, to read it at leisure.

      Yes, postcards aren't very "private", but there's a certain expectation of privacy, that everyone in the mail service will refrain from reading it as much as possible, and won't gossip, hand it to other people, share private info, etc. Aga

    • by PortHaven (242123)

      Well, you didn't use a strong enough encryption on your door. I used a bump key. "ALL YOUR VALUABLES ARE NOW BELONG TO ME"

  • IRS needs to go (Score:5, Insightful)

    by emho24 (2531820) on Wednesday April 10, 2013 @03:42PM (#43415191)
    The US tax code needs a massive overhaul and simplification, and the IRS simply needs to be dismantled.

    Maybe I should send that as an email so the IRS will read it.
    • by h4rr4r (612664)

      The entrenched tax preparer industry would never allow that. They need complicated regulations to exist. If we simply made all income tax X% above Y dollars and Z% above W dollars, then made business taxes X% on Y profit they would be out of jobs. There are likely billions of dollars in the tax preparation, avoidance and evasion industries. From the guy at the HR block to the lawyers helping the 1% setup trusts in the Caymans there are simply too many folks in those jobs to allow simplifying the tax code.

      • by geekoid (135745)

        "The entrenched tax preparer industry would never allow that."
        HAHAHahhaha.

        They very people you seem to think would benefit from a complex tax code actually benefit from simpler tax code.

        • by h4rr4r (612664)

          Please explain.
          If tax preparation was simpler, far less of these people would be employed. They could not charge as much either. Heck, entire tax avoidance/evasion schemes would go away. When all income is taxed the same way there will be no need to move some income into various investments and schemes to avoid paying taxes.

    • by ISoldat53 (977164)
      Or another solution is if the IRS doesn't win a case, that citizen doesn't have to pay any taxes for the period of time that they were in jeopardy of.
  • By default, email is plaintext. It isn't sent in an envelope, it's more of an electronic postcard. You aren't guaranteed a particular routing, so email may pass through any number of ISPs of varying nationality, legality, and morals. You want privacy? Use encryption.

    In snailmail, enveloped mail has an expectation of privacy, postcards less so (if at all). Email is not snailmail. All it takes is a packet sniffer in the right place to read your mail, not even much of a cracking package. So there is no

    • by iggymanz (596061)

      by defaut, an analog telephone cause is plain speech.....

  • If I didn't have an expectation of privacy, I wouldn't password protect it.
    • by h4rr4r (612664)

      To protect it from other users, not the server admin nor police. Also to prevent others from pretending to be you, again not the server admins as that would be trivial.

  • by MasseKid (1294554) on Wednesday April 10, 2013 @03:50PM (#43415275)
    a new renewable energy source. All we have to do is put some magnets on our founding father and the amount of energy they exert spinning in their graves over this and things like this would power the whole united states with some to spare.
    • by Entropius (188861)

      I'm racing you on that one -- I want to cut a hole at the top of the Capitol Rotunda and replace it with a turbine, powered off of the hot air coming out of the folks inside.

    • by geekoid (135745)

      You should probably read their papers and letters before making such a statement.
      You might be surprised at how little they would be turning over.

  • by tekrat (242117) on Wednesday April 10, 2013 @03:52PM (#43415313) Homepage Journal

    If the IRS can read email without a warrant, then it should be EASY to convict nearly every overpaid CEO in the USA who hides their money via creative accounting and tax dodges. Why have there been no convictions then for the 2008 Economic Crash where the fatcat bankers stole trillions and then got free billions to cover their losses? Surely that money can be traced and found and certain wall street types convicted if the IRS is reading *their* emails.

    Oh, but they aren't -- because those people own the government. Because those people are "too big to fail". Because those people have friends in high places and lots of lawyers to defend them. They aren't easy targets, even though they are big targets.

    No no, prosecutors want easy convictions from people with no means to defend themselves, using the same tactics as high school bullies -- pick on the weak.

    The IRS reading your mail? Pfft. It's to keep the proles in line. The elite have their own laws and their own justice that flows from power. The rest of us just try to survive under the heel of their boot.

    • by GigsVT (208848)

      Why would they need to trace the money? The fed was the one writing the checks to people and foreign governments to buy the worthless junk MBS. They know where it went.

    • by geekoid (135745)

      becasue they didn't steal it. You should probably try to understand that.
      The vast majority of them made reasonable decisions based on the information they had. The people creating the information were the problem.

      Of course there where a few that did actual illegal things. Make a bad investment is not illegal.
      Getting paid to make investments is not illegal.

      The loosening of requirements is the big issue.

    • it should be EASY to convict nearly every overpaid CEO in the USA who hides their money via creative accounting and tax dodges. Why have there been no convictions then for the 2008 Economic Crash where the fatcat bankers stole trillions and then got free billions to cover their losses?

      Because they didn't break the law. They knew the law, and were careful to instruct their underlings to not do anything that would land the CEO in jail. I don't even know why you think they broke the law. Who told you that?

  • So, when you have TLS and a private mailserver, how does this work exactly? Who are they tapping?

    • by GigsVT (208848)

      If you don't host the server yourself they could always go to your hosting provider, but I assume this is more about gmail/comcast/etc.

  • by characterZer0 (138196) on Wednesday April 10, 2013 @03:56PM (#43415373)

    Do I get privacy if my mail is stored on a mail server in my house that I own? What if it is a colocated server that I own? What if it is a rented server? What if it is a VPS?

  • Be careful about what you put into writing; if it will be read your bestest friend, it will also be read worstest enemy. Tried and true security strategy used for millennia.

  • by TerraFrost (611855) on Wednesday April 10, 2013 @04:04PM (#43415445)
    The Sarah Palin email hacker [wikipedia.org] should have used that line! "Mrs. Palin has no privacy expectation". Might have saved him from his misdemeanor conviction of "unauthorized access to a computer".
  • Is it really that unreasonable to get a warrant before doing the following activities?

    Reading your email?
    Tracking your car?
    Tracking your phone calls?
    Tracking your cell phone?
    Tracking your every movement?
    Entering your private home?
    Entering your private car?

    In today's society it is highly difficult to function without these capabilities, yet we are expected to check our constitutional rights out the door when we want to operate as normal members of society. Expecting nothing more than asking a judge to review

  • by necro81 (917438) on Wednesday April 10, 2013 @04:12PM (#43415557) Journal
    The 180-day limit is based on an antiquated legal standard, the Electronic Communications Privacy Act [wikipedia.org], which was signed into law in 1986 - more than 25 years ago. At the time, email was still in its infancy, and "cloud"-based email providers like Yahoo, GMail, etc. simply didn't exist.

    Efforts are underway [google.com] to update the act so that, among other things, law enforcement will need to obtain a warrant anytime they want to access email. But those updates aren't law yet, so the old statute still applies.
  • .....more reasonable every day.

  • Tis sad, and very sad....

    We had a Constitution,
    Now we have but laws,
    That make it null and void,
    Tis bad, and very bad....

  • If you're using GNUPG or Enigmail* Thunderbird plugin, just what do they expect to find in the gibberish metadata?

    [*] http://www.enigmail.net/home/index.php [enigmail.net]

  • Oh look what a shock...the third party doctrine striking again...who'd have guessed?

    This is what we deserve when we depend so much on third parties for everything even when it makes little to no difference where the data is stored. With a little effort and slight inconvinence it does not have to be this way.

    Run your own mail server, run your own web site. Say no to aggregation of control within "the cloud" where the US constitution is just a mirage.

  • by arekin (2605525) on Wednesday April 10, 2013 @05:00PM (#43416137)
    When David Kernell accessed Sarah Palin's email without permission he received a year in prison, when the IRS does it, it's not a crime. I think there may be a communication issue on what constitutes a crime.

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