The IRS Electronic Access to Information & Stored Communication Act

The IRS Electronic Access to Information & Stored Communication Act

The IRS Electronic Access to Information & Stored Communication Act

When the IRS wants to pursue certain actions against Taxpayers, they may be able to seek electronic information – but there are certain requirements (and limitations) preventing the IRS and other governmental agencies from accessing certain information without going through the proper channels. There are several statutes laying out the rule, as well as what constitutes a violation (along with what happens if the US Government improperly seeks taxpayer information). Let’s look at some of the basics of the Stored Communication Act:

18 U.S. Code § 2701 – Unlawful access to stored communications

(a) Offense – Except as provided in subsection (c) of this section whoever—

      • intentionally accesses without authorization a facility through which an electronic communication service is provided; or

      • intentionally exceeds an authorization to access that facility;

        • and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

(b)Punishment.—The punishment for an offense under subsection (a) of this section is—

      • (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State

        • (A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and

        • (B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and

      •  (2)in any other case—

        • (A)a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and

        • (B)a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.

(c)Exceptions.—Subsection (a) of this section does not apply with respect to conduct authorized—

      • (1) by the person or entity providing a wire or electronic communications service;

      • (2) by a user of that service with respect to a communication of or intended for that user; or

      • (3) in section 2703, 2704 or 2518 of this title.

18 USC §2702 – Voluntary disclosure of customer communications or records

      • (a)Prohibitions.—Except as provided in subsection (b) or (c)—

        • (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

        • (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service—

          • (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;

          • (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and

        • (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

      • (b) Exceptions for disclosure of communications.—

        • A provider described in subsection (a) may divulge the contents of a communication—

          • (1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;

          • (2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;

          • (3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;

          • (4)to a person employed or authorized or whose facilities are used to forward such communication to its destination;

          • (5)as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

          • (6)to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A;

          • (7)to a law enforcement agency—

            • (A)if the contents—

              • (i)were inadvertently obtained by the service provider; and (ii)appear to pertain to the commission of a crime; or [(B)Repealed. Pub. L. 108–21, title V, § 508(b)(1)(A), Apr. 30, 2003, 117 Stat. 684]

          • (8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency; or

          • (9) to a foreign government pursuant to an order from a foreign government that is subject to an executive agreement that the Attorney General has determined and certified to Congress satisfies section 2523.

      • (c) Exceptions for Disclosure of Customer Records.—

        • A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—

          • (1) as otherwise authorized in section 2703;

          • (2) with the lawful consent of the customer or subscriber;

          • (3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

          • (4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

          • (5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A;

          • (6) to any person other than a governmental entity; or

          • (7) to a foreign government pursuant to an order from a foreign government that is subject to an executive agreement that the Attorney General has determined and certified to Congress satisfies section 2523.

      • (d) Reporting of Emergency Disclosures.—On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—

        • (1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8);

        • (2) a summary of the basis for disclosure in those instances where—

          • (A) voluntary disclosures under subsection (b)(8) were made to the Department of Justice; and

          • (B) the investigation pertaining to those disclosures was closed without the filing of criminal charges; and

        • (3) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (c)(4).

 18 U.S. Code § 2703 – Required disclosure of customer communications or records

      • (a) Contents of Wire or Electronic Communications in Electronic Storage.—

        • A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

(Redacted)

How Does IRS Seek Disclosure?

Let’s take a look at the Internal Revenue Manual on matters involving the disclosure of stored communications

IRM 9.4.6.7.3.2 (09-05-2008)

Disclosure of Stored Communications

      • Title 18 USC §2702 prohibits disclosure of electronic communications by providers of electronic communication services or remote computing services unless one or more of the following conditions is met:

            • the information is given to its intended recipient or addressee

            • the information is given to the government pursuant to a court order, search warrant, or subpoena

            • the subscriber/customer gives consent

            • the disclosure is to a facility used to forward the communication

            • the disclosure is incident to testing equipment or quality of service

            • the information was obtained inadvertently and specifically refers to a crime

      • Title 18 USC §2702(c)(4) permits, but does not require, a service provider to disclose to law enforcement either content or non-content customer records in emergencies involving an eminent act which could result in the death of or cause serious physical injury to any person as provided by the USA Patriot Act.

IRM 9.4.6.7.3.3 (09-03-2020)

Judicial Process for Obtaining Stored Electronic Communications, Transactional Information, and Subscriber Information

      1. Title 18 USC §2703 specifies the means by which a governmental entity may obtain access to stored electronic communications. The statute prohibits electronic communications providers from voluntarily providing information to a governmental entity, and requires law enforcement to use either a search warrant, court order, or subpoena (as described below in paragraphs 2, 3, 4, and 5) in order to obtain the following classes of information:

        • The contents of electronic communication in electronic storage with an electronic communication service (such as unopened e-mail) or with a remote computing service (such as records in off-site archives).

        • Basic subscriber information; including the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity (such as temporarily assigned Internet Protocol (IP) addresses); length of service; and types of services the customer or subscriber utilized.

        • Transactional information, which includes all other records or information pertaining to a subscriber or customer that are not included in a) or b).

      2. If the contents of a wire or electronic communication have been in storage for 180 days or less, the government must obtain a search warrant, based on probable cause, to obtain access to the contents. Notice to the subscriber or customer is not required. Because the statute requires the use of a search warrant to obtain this class of information, it is not necessary to prepare an Enforcement Action Approval Form or to justify the use of the warrant as the least intrusive means to obtain the Information. Form 9809, Request for Stored Electronic Information is used to obtain the appropriate authorization for the search warrant application and execution.

        •  The government may obtain the contents of an electronic communication that has been in storage for more than 180 days using a search warrant, a court order issued under 18 USC §2703(d), or a grand jury subpoena or administrative summons.

        • Notice need not be given to the subscriber if a search warrant is used to obtain the information. The statute requires that the customer or subscriber to whom the information pertains be notified if the government obtains a court order or issues a subpoena or summons for the information. That notice may be delayed for up to ninety days pursuant to 18 USC §2705. (This initial 90-day period can be extended for an additional 90-day period upon application to the court for an extension under 18 USC §2705(4).) Exhibit 9.4.6-1 is a sample of a 18 USC §2703(d) Order.

      1.           The above-stated transactional information may be obtained, without providing notice to the subscriber, by any of the following means:
        • A search warrant

        • A court order for disclosure per 18 USC §2703(d).

        • Consent from the customer or subscriber of the service.

        • Submission of a formal written request, pursuant to a law enforcement investigation concerning telemarketing fraud, for the name, address, and place of business of a subscriber or customer of such provider, when a subscriber or customer is engaged in telemarketing as defined in 18 USC §2325.

Note: At least one Circuit Court of Appeals has found portions of the Stored Communications Act (SCA) that permit the obtaining of e-mails pursuant to subpoena or court order unconstitutional. Thus, a search warrant may be required notwithstanding the language of the SCA or this IRM. Where the obtaining of e-mails by subpoena or court order is contemplated, consult with a local CT Attorney before proceeding.

      • Basic subscriber information may be obtained with any of the means described in (3) above or with a grand jury subpoena or administrative summons, without providing notice to the subscriber.

      • Title 18 USC §2703(f) imposes on the provider of wire or electronic communication services or a remote computing service the obligation, upon the written request of a governmental entity, to take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

        • The Preservation Letter requires providers of wire or electronic communication services or remote computing services to retain records for a period of 90 days. This initial 90-day period can be extended for an additional 90-day period upon a renewed request by the governmental entity.

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