Stacey Rolland
Series Introduction
Stacey L. Rolland, December 2020
It is a relatively recent phenomenon that Americans (and most of the world, for that matter) voluntarily disclose massive amounts of highly personal information to tech companies in exchange for services like the latest gaming app. Before the advent of big tech and its insatiable appetite for data, the single place where Americans handed over the most detailed personal information was to the Internal Revenue Service (IRS) in their annual tax returns. As the recipient of those returns, the IRS collected more personal information about nearly every American than any other entity in the nation. That is, until private tech companies of recent years began the unregulated collection of massive troves of Americans’ personal data.
Tech companies and their relationship with Americans’ personal data now stand in the place that the IRS and Americans’ tax data stood for the last 150 years. As such, the privacy debates of today are not new – preemption of conflicting State and Federal laws, private right of action, privacy as a means of hiding wrongdoing versus a reasonable expectation versus a fundamental right – have been thoroughly debated in the context of tax data privacy. The history of tax data privacy can serve as a useful lens through which to view the current debates about Americans’ right to privacy.
In this series of papers, I analyze issues in today’s data privacy debates through the lens of section 6103 of the U.S. Internal Revenue Code, the provision that has protected tax data privacy for over 40 years.
In the first paper, published by IAPP – International Association of Privacy Professionals in their December 2, 2020 Privacy Perspectives, I present an analysis of the parallels between the development of tax data privacy protections throughout the 20th century and today’s increasingly-charged atmosphere around the protection of data privacy.
In the second paper, I analyze the evolution in the meaning of privacy from the 19th century to today and its implications for future privacy protections.
I also include a primer on section 6013 and the protection of tax data privacy.
Technology is advancing at a lightning pace and private issues are emerging rapidly in its wake. Data ethics and data privacy offer a target-rich environment for thoughtful analysis and critical scrutiny.
SOURCES USEFUL FOR THIS SERIES
Benedict, James N. and Leslie A. Lupert, Federal Income Tax Returns-The Tension Between Government Access and Confidentiality, 64 Cornell L. Rev. 940 (1979).
Berggren, Mark. I.R.C. 6103: Let’s Get to the Source of the Problem, 74 Chi. Kent L. Rev. 825 (1999).
Chaddock, Gail Russel. “Playing the IRS card: Six presidents who used the IRS to bash political foes.” Christian Science Monitor (May 17, 2013).
Chao, Becky, and Eric Null, and Claire Park. “Enforcing a New Privacy Law: Who Should Hold Companies Accountable?” New America, November 2019.
Commonwealth v. Burgess, 426 Mass. 206 (1997).
Department of the Treasury, Office of Tax Policy. Report to the Congress on Scope and Use of Taxpayer Confidentiality and Disclosure Provisions, Vol. 1: Study of General Provisions. Washington, D.C., October, 2000.
Doyle, Alister and Alistair Scrutton. Privacy, what privacy? Many Nordic tax records are a phone call away. Reuters, April 12, 2016.
Glancy, Dorothy J. “The Invention of the Right to Privacy.” Arizona Law Review (1979).
Internal Revenue Service, Office of Chief Counsel Memorandum 201120002, May 20, 2011.
Joint Committee on Taxation. Background Regarding the Confidentiality and Disclosure of Federal Tax Returns. Washington, D.C., February 4, 2019.
Joint Committee on Taxation. Study of Present-Law Taxpayer Confidentiality and Disclosure Provisions as Required by Section 3802 of the Internal Revenue Service Restructuring and Reform Act of 1998, Vol. 1: Study of General Disclosure Provisions. Washington, D.C., January, 2000.
Kornhauser, Marjorie. “Doing the Full Monty: Will Publicizing Tax Information Increase Compliance?” Canadian Journal of Law and Jurisprudence (January 2005).
Kerry, Cameron F., and John B. Morris. “In privacy legislation, a private right of action is not an all-or-nothing proposition.” Brookings, July 7, 2020.
Lake v. Rubin, 162 F.3rd 113 (D.C. Cir. 1998).
Pew Research Center, November 2019, “Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over Their Personal Information.”
Rao, G. Amogha. Analysing the Birth of ‘The Right to Privacy’ and the Process Behind its Legal Justification. Huffpost (August 24, 2017).
Relyea, Harold C. Congressional Research Service Report for Congress. Privacy Protection: Mandating New Arrangements to Implement and Assess Federal Privacy Policy and Practice. May 27, 2004.
Schwartz, Paul M. The Future of Tax Privacy. National Tax Journal (December 2008).
Smith, Christina N. The Limits of Privatization: Privacy in the Context of Tax Collection, 47 Case W. Res. L. Rev. 627 (1997).
Solove, Daniel J. “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 745 (2007).
Stoller, Matt. The Rise and Fall of Andrew Mellon. The American Prospect (October 2019).
U.S. Privacy Protection Study Commission, Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission. Transmitted to President Jimmy Carter, July 12, 1977.
Warren, Samuel D. and Louis D. Brandeis. The Right to Privacy. Harvard Law Review (December 15, 1890).