The NSA, the 4th Amendment, and your email

I earlier wrote about the National Security Agency (NSA) and their mass collection of phone records (Smith v. Maryland and the NSA Telephone Number Defense).  Now I would like to briefly discuss the privacy issues surrounding the NSAs use of the PRISM program.  I’ll narrowly focus on emails and this post necessarily hinges on an assumption that the NSA, through the PRISM program, is storing your emails to later search.

My assumptions are as follows: I believe that the NSA is gathering emails to later have access to in case it needs to search through them.  This is based on the government’s needle and haystack defense.  Ranking member of the House Intelligence Committee Dutch Ruppersberger put forth this defense.  He described it as follows:  “If you want to find a needle in a haystack, which is a lot of what our intelligence community does, you need the haystack.  And the providers who have this information, they keep it only for a certain period of time.  So in order for us to be involved and stop these attacks, we need to move right away.” (CNN)  I grant that he may have just been referring to the collection of phone numbers dialed, but I suspect that the needle and haystack defense may well be used as justification to defend PRISM.

So I believe it is safe to assume that the government is gathering this data (your emails) in case they are deleted or secreted away so that if they feel the need to later search your emails they will have ready access.  This is supported also by the need for the government to build a massive new data storage center that will be able to hold a yottabyte of data.

So that is where I begin my analysis.  As always it is helpful to look to a court case that has undertaken a careful analysis of the issues presented to frame this discussion.  The court case I will be relying on, and citing to, is United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).

If you remember, as stated in my earlier post, that when a court undertakes to determine whether a violation of the 4th Amendment has taken place they undergo a two pronged analysis.  Judge Boggs put it as such:

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” U.S. Const. amend. IV. The fundamental purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); see Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (“The [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”).

Not all government actions are invasive enough to implicate the Fourth Amendment. “The Fourth Amendment’s protections hinge on the occurrence of a ‘search,’ a legal term of art whose history is riddled with complexity.” Widgren v. Maple Grove Twp., 429F.3d 575, 578 (6th Cir. 2005).  A “search” occurs when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). This standard breaks down into two discrete inquiries: “first, has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)).

The Court made easy work of the first question concluding that the defendant had a reasonable expectation that his emails would remain private.  I think this assumption is axiomatic.

The Court’s next step was to determine whether society is willing to accept this expectation of privacy in email as reasonable.  “This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication.” Warshak, at 284. The Court then went further to give just a few of the numerous examples of how important email has become to our lives:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

The Court went on to hold that based on the similarities between emails and traditional forms of communications that common sense dictates that it should receive the same 4th amendment protections.  The Court further pointed out that the mere fact that a third-party intermediator could access the emails does not obviate the expectation of privacy.  They pointed out that telephone company operators have the ability to listen in on a phone call and the government still needs a warrant to listen to your calls.

They also point out that a hotel guest has a reasonable expectation of privacy in their hotel rooms despite the fact that a maid can enter the room to clean.  However, the Court made sure to be clear that there are circumstances under which an agreement with your ISP may render your expectation of privacy null and void.

Again, however, we are unwilling to hold that a subscriber agreement will never be broad enough to snuff out a reasonable expectation of privacy. As the panel noted in Warshak I, if the ISP expresses an intention to “audit, inspect, and monitor” its subscriber’s emails, that might be enough to render an expectation of privacy unreasonable. See490 F.3d at 472-73 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000)). But where, as here, there is no such statement, the ISP’s “control over the [emails] and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy.” Id. at 473.

The Court then went on to hold that the expectation of privacy in your emails is one that society is willing to accept as reasonable.

This case shows that there is at least one Court of Appeals in the United States that views emails as analogous to traditional mail. The question that remains is whether the terms of service used by the companies like Google in their GMail service obliterate the expectation of privacy.  Here is a link to Google’s privacy policies.

This was briefly discussed by Judge Garaufis in IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE RELEASE OF HISTORICAL CELL-SITE INFORMATION 809 F.Supp. 2d. 113 (E.D.N.Y. 2011).  Judge Garaufis posed the question in Footnote 6 this way: “For example, would the third-party doctrine remove the reasonable expectation of privacy over the contents of emails sent on Gmail, or similar email providers, that use computers to access and analyze the contents of email communications in order to display advertisements?”

The question that remains unanswered is whether the secret law created by the FISA court has dealt with this issue.  More specifically, has the FISA court looked at GMail’s terms of service and made a decision that you do not have a reasonable expectation of privacy in your GMail because of the invasive nature of Google’s use of your emails.  Unfortunately, with no access to the secret court decisions people cannot adjust their behavior accordingly.  Thus the nefarious nature of secret law and secret courts move onward.

I also have to note that the secret courts may have determined that the storage of the emails does not constitute a search until the government physically looks at the content of the emails in some way.  Of course a post based on secret law would not provide much insight without being informed of the contents of secret law.

*You may be wondering why this post does not discuss the Stored Communications Act 18 USC § 2703.  I believe that this post was long enough as is and the Stored Communications Act will still be around in the future to feature in its very own post.

Smith v. Maryland and the NSA telephone number defense

It is clear that the Department of Justice and the National Security Agency (NSA) have been collecting the records showing the telephone numbers of every single phone call that you make.  It is not yet clear whether they have been collecting the contents of those phone calls.  Below is an attempt to analyze the argument the government has put forth as their basis for this wholesale collection of numbers.

The only case that has been discussed as possible justification by the government is Smith v. Maryland 442 U.S. 735 (1979).

First, a little background.  Michael Lee Smith robbed a woman in Maryland.  He then began to call and threaten her.  The police identified a license plate on a car that matched the description given by the victim.  This was Smith’s license plate.  The police asked the phone company to install a pen register on Mr. Smith’s phone.  Pen registers are a device that records the phone numbers dialed by a particular device.  They are currently covered under 18 USC § 3121-3127.

This pen register information, along with other information, lead to a search warrant and eventually the arrest of Mr. Smith.  He was convicted and his appeal eventually found its way to the Supreme Court of the United States.

The decision was written by Justice Blackmun.  After reciting the facts, he laid out how the Court approaches questions concerning the 4th amendment.  The opinion was interlaced with cites and references to Katz v. United States, 389 U.S. 347 (1967).  It would be helpful to read the Katz case prior to reading the Smith case.

In Smith, Justice Blackmun held that “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.” Smith, at 740.  This inquiry is broken down into two prongs.  The first prong is “whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361 – whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.”” Smith, at 740.  The second prong “is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as `reasonable,'” id., at 361 – whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.” Smith, at 740.

Justice Blackmun then distinguished the facts in Smith from the facts in Katz.  It was significant to Justice Blackmun that in Smith the police only obtained records of the phone numbers whereas, in Katz, the police recorded the content of the phone calls.  Justice Blackmun went on to express that a person knows that the phone company must use the numbers dialed on a telephone to connect it to another line.  Furthermore, the phone company must retain this information for billing purposes.

Justice Blackmun then ruled that a person has no reasonable expectation of privacy in the numbers dialed from their phone.  This meant that the first prong of the 4th amendment test had not been met and thus the 4th amendment did not protect Mr. Smith’s phone records as held by the phone company.  Justice Blackmun then goes on to broaden the holding stating that a person has no reasonable expectation of privacy in information handed over to third parties.

Interestingly, Justice Blackmun specifically dealt with the issue of changing technology.  He found that equipment used by the phone company was substantially similar to having an operator physically routing the phone call.  The fact that no human actually was receiving the information did not matter as the Court was “not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” Smith, at 745.

After the decision in Smith Congress passed 18 USC § 3121-3127. This statute requires the government to obtain a court order prior to obtaining the records of phone calls from third-party companies.  The application for the court order has to claim that the information taken is relevant to an ongoing criminal investigation.  It is clear that the broad collection of every phone call made in the United States violates this statute.  The government, in its defense of the NSA program, has admitted that they are obtaining the phone numbers prior to knowing whether they will be relevant or not.

Furthermore, 18 USC Chapter 206 § 3121-3127, requires that the order issued by the judge to contain the identity, if known, of the person who is the subject of the criminal investigation.  This order must also contain a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.  It is clear that the Verizon FISA* order fails to live up to these disclosures.

It is clear from the above analysis that although the wholesale collection of the telephone numbers called by each United States citizen is not a violation of the 4th amendment it is a clear statutory violation.  Your rights come from the Constitution and from statutes passed by Congress.  The Department of Justice does not have the right to collect the information that it has been collecting.

We can find some comfort in the principle that commercial establishments have 4th amendment rights themselves (see New York v. Burger 482 U.S. 691 1987).  Thus, with some exceptions, the companies can stand up to the government.  We should keep this in mind when we try to take away rights from corporations with slogans such as ‘corporations aren’t people.’  But, that is a fight for another day.

The public need for transparency on this issue is clear.  In order for me to trust my records to a phone company I need to know what protections I have from the government and what steps, if any, my company is taking to protect my information from the government.  I hope these recent events will lead to such transparency.

*When looking at the Verizon FISA order you may then question whether the above statute is the proper statute to be referencing in determining the validity of the FISA order.  This is because the Verizon FISA order references 50 USC § 1861 as a justification for its issuance.  This statute references access to certain business records for foreign intelligence and international terrorism investigations.  The reason that I did not analyze this statute is because it is clearly not applicable to phone records of citizens making phone calls wholly within the United States.  Therefore, I have to assume that the government would look to the pen register statute as its justification for collecting phone calls made internally within the United States.

The 4th Amendment and the NSA

This is my attempt to string together many seemingly disparate events.  I have attempted to cite as many sources as I can so that the reader can please come to their own conclusions.  Until secret courts with secret justifications are abolished it will be hard to tell if this is correct.

I read articles by the New York Times editorial board, “President Obama’s Dragnet,” and the Wall Street Journals editorial board, “Thank You for Data-Mining,”  the Washington Post article “Documents:U.S. mining data from 9 leading Internet firms; companies deny knowledge” and the Guardian article “NSA collecting phone records of millions of Verizon customers daily” amongst others.

Please read these articles as they offer an array of views on the National Security Agency (NSA) scandal. I believe this is a major problem. Please remember I have included sources for as many arguments as I can in an effort to be as open as possible. I encourage you to please read the source material so that you can come to your own conclusion.  A working knowledge of our history’s founding and the Constitution are helpful but not necessary.   Please if you have questions look it up and learn or ask.  The internet can be used for amazing good and amazing evil.

The 4th amendment to our Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  This right protects citizens from having the government access their emails without a warrant. Any such warrant issued must be based on probable cause.  Article III of the Constitution sets up the courts that get to decide whether probable cause has been shown.   Article III contains no authority for the federal government to establish secret courts.

We must also look at this in conjunction with the Espionage Act of 1917.   The act makes it illegal to disclose classified information in certain circumstances.  The administration has the exclusive right to decide what information is classified.

With the background information covered please read on to see the analysis of the deeply troubling NSA situation.

We learned from the Guardian story that the Obama administration seized the call records from every person who uses Verizon for a certain time period.  The Washington Post told us that these seizures had been happening every three months for years on end and involved all major phone companies.

Then we learned that the breadth of the spying was much larger than just some phone records, thanks to the Washington Post.

“The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs…”

“According to a separate “User’s Guide for PRISM Skype Collection,” that service can be monitored for audio when one end of the call is a conventional telephone and for any combination of “audio, video, chat, and file transfers” when Skype users connect by computer alone. Google’s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.”

The Obama administration’s program was building on a Bush administration program that expanded the scope of the FISA (Freedom Intelligence Surveillance Act) law.  The FISA law was originally “created to provide Judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.  It allowed surveillance, without a court order, within the United States for up to one year unless the surveillance will acquire the contents of nay communication to which a United States person is a party.”  In short, FISA allowed the government to intercept the communications between a person physically situated outside of the United States and a non-citizen within the United States.

However, FISA also allowed for surveillance based on a ruling by a secret FISA court.  In order to get a FISA warrant the government had to show probable cause that whomever they were surveilling was a foreign power or agent of a foreign power.  The government also had to show that whatever surveillance the government wanted to do of the foreign agent or foreign power met minimization requirements to protect against the gathering of information pertaining to U.S. Citizens.

So the secret FISA courts start issuing warrants for the seizure of information based on classified facts submitted by the federal government to the secret courts.  The evidence used by the government and the underlying rationale used by the government to support its position in front of the courts is classified.  The decisions issued by the secret FISA courts are classified.  There is no right to speak about the actions of the government at the FISA court proceedings.

So the federal government approaches these giant, heavily regulated corporations and tells them their continued compliance with the Patriot Act is commendable.  The corporations know that if they talk about what the government is doing they will face up to ten years in prison under the Espionage Act.  The corporations go along with the government’s plans because of the threat of terrorism, the threat of government regulation, and because the government promised to minimize the transfer of any United States citizens information.

Then in approximately 2008 the government began to ask these companies, including Verizon, Apple, Microsoft and many others to give the government complete and total access to their servers.   The problem for the corporations was that they had built their reputations and their customer loyalty based on stoic predictions of absolute protection of customer data.  This was incorporated into many of their terms of service.  Questions arose but americans generally accepted that these companies would anonymously use their data to advertise to them and not much else.  Google tells you up front that it scans your emails, but it the implicit understanding is that the information is anonymous and only given to advertisers.  It definitely was not understood that all your emails would be made available to the federal government to be used as they see fit.

Apple, apparently defied the government for some time.  However, the government began to really turn the screws.  Remember, that if the corporations exercise their freedom of speech by disclosing the existence of this program then they can get indicted under the espionage act.  That is punishable by ten years in prison for each count.  Even acknowledging that the company is being asked questions by the government is illegal.  And remember, this is the same president who has prosecuted more people for leaks then all presidents before him combined.  There was no doubt that these companies felt they must comply or be thrown in jail.

The corporations were between a rock and a hard place.  Lie to the people and risk ruining a company built on trust or go to jail.  The government realizes the concerns of the corporations and realizes the risks if someone at one of these places of employment leaks the information about their spying.

So the government elects to immunize the corporations for any lawsuits filed by their customers based on the corporations outright violations of their customers constitutional rights.  This would force the companies to cooperate.  It’s no different then when the federal government is prosecuting multiple defendants for the same transaction.  One of the defendants gets immunity so that the government can force them to act against their friend.

These are public companies that are being told by the government to lie with impunity.  They have a duty to inform their shareholders of the health of the company.

The government is now involved in some large scale espionage on the american public.  They have shown a disregard for any actual Constitutional limits.  Then you have the 2010 midterm elections.  This election resulted in the highest loss of a party in a House midterm election since 1938.  The Republicans picked up 22 state legislatures and positioned themselves to cement this legacy based on redistricting.

This must have scared the Obama administration.

They saw a struggle to reelection and were not even sure at this point if Obamacare would survive.  The Obama administration comes from Chicago.  The machine never quits.

The administration had good reason to hope they could get away with their Constitutional violations as courts were siding with them and keeping it secret.  The legislative branch of government, Congress, was briefed and told that if they leaked any information they’d be thrown in jail under the Espionage Act.  Plus many of them agreed with the decisions made by the administration.

Then comes Citizens United.  These corporations that Obama was spying on and threatening could now give money and speech anonymously to these Tea Party groups that really did not like Obama.  Obama would have no ability to tell which corporations donated thus giving an opening that a corporation would rat on him.  This also made him feel less secure that the Courts were putting up with being forced to keep secrets as they openly defied his tight control of information.

The response was two fold.

The first part of the government’s plan was bash the credibility, character, and rights of corporations.  Remember the refrain that corporations aren’t people.  They don’t have rights.  I would imagine this will be the reasoning that was used to convince the secret courts to issue warrants.  Of course the administration won’t ever let Americans see these court decisions.  Like a good trial attorney in jury selection he was planting thoughts into your head.

The second branch of fighting the disclosure of the spying is fighting these groups applying for tax exempt status.  The administration has the IRS crack down on Tea Party groups applying for tax exempt status.

Yet they had a new group to keep happy and be worried about.  They gave the IRS big celebration type conferences and gave employees big bonuses.  with conferences and bonuses on IRS employees.

Then you have Benghazi.  The government had been telling the public that Al Qaeda is decimated but they kill our ambassador.  It is hard not to know what the truth is as the spying program has been justified based on the threat terrorism still poses to the United States.  I’m still not sure what Benghazi means, but I have a hunch it plays a major role.

finally the hackback debates started.  Companies wanted to hack back against the people hacking their computers.  The federal government does not allow this at all.  I wonder if it is because they are afraid of being discovered for their hacking.

What the government has done is inexcusable.  They have taken the tools of our greatest achievements: technology, computers, amazing devices that we use to work, play, and just about everything.  There is a device next to you when you go to bed.  There are multiple ones in your house.  They can record audio and video.  They could be on without you knowing about this at all.  They are creating the largest data center in the world.  Wired covered this in 2012.

The administration is saying that it is acceptable because the secret courts gave them secret permission and we should just trust them anyways.

This is not functionally different then posting an FBI agent everywhere you take any type of electronic device.  The really sad part is that so many in the government and the general public seem to have no problem with what is going on.  I’m sure I got some aspects wrong.  The administration has stonewalled and hidden behind secret courts.

This brings up a real fear that our country is no better than North Korea or China.  Our government espouses to other countries that they need to keep the internet free while our government violates our Constitution.   What other games or tricks are they playing.

Questions Concerning Eric Holder Testimony Still Unresolved

According to the New York Times, Eric Holder, the Attorney General of the United States, testified to the following under oath: “With regard to the potential prosecution of the press for the disclosure of material, that is not something that I’ve ever been involved in, heard of or would think would be a wise policy.”  That is a very broad statement.

After this testimony, the Chairman of the committee that took the testimony sent this letter asking for clarification in light of the facts that Eric Holder had approved an affidavit in the James Rosen case prior to testifying in front of Congress.  That affidavit labeled James Rosen, a Fox News reporter, as a co-conspirator, alleged probable cause to believe he committed a criminal act, and swore that telling the James Rosen or his employer about the attempt to obtain a warrant would jeopardize the investigation because Rosen may destroy evidence, harm or kill someone, or flee the jurisdiction.  See this post for some background on the current status of the Department Of Justice issue.

The letter from the committee requested certain questions be answered.  Most importantly, how can Eric Holder assert that the above facts do not classify as a potential prosecution of the press.

The Department of Justice send this letter in response to the committee’s letter.  This letter avoids actually answering the questions raised by the committee.  The letter claims that because no charges were actually sought Eric Holder’s statement accurately reflected the truth.

The statements by the Department of Justice fold under any level of scrutiny.  The Department of Justice investigates behavior to determine whether or not to bring criminal charges.  The Department of Justice does not just investigate all behavior at random to see whether or not a crime was committed.  They only investigate someone if they have some reason to think that there is a possibility that criminal activity is taking place.

The Department of Justice investigated a reporter and swore that they had evidence that leads them to believe that there is probable cause to believe James Rosen committed a criminal act.  They were definitively involved in the potential prosecution of a reporter.  We must remember that the evidence necessary to put handcuffs on the reporter and arrest him is the same standard, probable cause.  If the Department of Justice never even contemplated bringing charges against James Rosen then they should not have been investigating him.  If the decision not to prosecute was made after the search warrant was obtained, then it was still a potential prosecution.

Lastly, if someone alleged that I committed perjury I would personally respond to the accusation.  Eric Holder had Peter Kadzik, a subordinate employee, draft his response.  This may mean nothing, but it seems fishy to me.  When your personal integrity is challenged I think, especially considering the surrounding events, one ought to personally reply to put the issue to bed.

Military Sexual Assault Probes

 

Today there were congressional hearings concerning some troubling revelations about sexual assault complaints in the military.  Here is a CNN article by Eliott McLaughlin discussing the hearings.

I do not have any comments on the substance of the hearings or the proposals raised at the hearings.  I hope that Congress and the military can find a solution that helps solve this problem.  I don’t know what that solution is or will be.

One feeling I come away with is general disappointment.  As I grew up I developed a special reverence for the military.  It is hard to read about great generals like George Washington, General MacArthur, and General Patton without developing an appreciation for their bravery and sacrifice.  There are too many individual stories to even begin to name those men and women who have acted with immense character, resolve, and bravery in service of their country.  Scandals like this do damage to all of those individuals and the military as a whole.  When I was young I was told that the military was where you could go as a boy and leave a gentleman.  This behavior falls short of those brave men and women who came before and will come after.  The country needs this to stop.  Period.

Did the White House fail to respond in kind to alleged IRS abuses?

The article, “I.R.S. Spent $4.1 Million on a Single Conference, Audit Finds,” raises some potentially troubling issues.  Please keep in mind that the I.R.S. Audit concerning the lavish spending at the I.R.S. was just released and bears a date of May 31, 2013 on its front cover.  You can find a copy of the report at T.I.G.T.A.’s* website here.  This is the report that the New York Times article was referencing.

The paragraph that stood out to me is as follows: “But the audit also shows that such expenditures fell sharply when the Obama White House clamped down on travel and conferences as budgets tightened and a scandal erupted over how much the General Services Administration had spent on conferences.  I.R.S. spending on such meetings fell to $4.8 million in the 2012 fiscal year, which ended Sept. 30, from $37.5 million in fiscal 2010.”

This sounds innocuous enough on its own.  The problem is that people have memories and statements are not made in isolation.  The administrations response to the I.R.S. targeting scandal was noticeably different.  This article in the Blaze, by Jason Howerton, lays out the White House’s initial response to the I.R.S. targeting scandal.  When the I.R.S. scandal concerning the targeting of conservative groups first came to light the White House Press Secretary, among other administration officials, declared that there is a “cardinal” rule for these types of situations.  The Blaze article stated,“”[t]hese kinds of independent investigations need to be independent, there should be no intervention by a White House, and of course there was not in this case,” he said, later adding that the White House chose to “wait appropriately” instead of taking action.” (Quoting Jay Carney.)

There can be no dispute, if the New York Times article is true, that the administration quickly acted to quash wrongdoing in the I.R.S. spending scandal years before the investigation by T.I.G.T.A. was completed.  In the I.R.S. conservative targeting scandal the administration told the general public that the “cardinal” rule is to do absolutely nothing until the T.I.G.T.A. investigation is completed.

It seems to me that the actions by the White House in response to the I.R.S. spending scandal clearly violated the “cardinal” rule as espoused by Jay Carney.  This could suggest many things.  Jay Carney should be asked to comment on the contradictions.

*T.I.G.T.A. stands for the United States Treasury General for Tax Administration.  They are the federal watchdog agency for the I.R.S.  Here is their website.

Abolish the IRS?

Senator Ted Cruz says that he wants to abolish the IRS.  I wholeheartedly agree. Unfortunately, there are a lot of people who are very invested in the current tax system.  They are entrenched interests.  They will argue that we just need to reform the IRS.  Take this Bloomberg article as a prime example.  Nobody wants to turn off the spigot.  If we can’t even get rid of a temporary assistance program what luck will we have getting rid of an agency with over 90,000 employees and many people not employed by the IRS that benefit from the complex rules?

Don’t get me wrong, I think the tax laws should be written on less than 10 pages of paper.  A tax return should be a one page document.  However, government creates interesting bedfellows.  The IRS has a gigantic bed.