Federal courts continue to grapple with balancing personal privacy interests with law enforcement needs, as well as the needs of private parties in litigating property rights. Government entities are also more carefully analyzing and adhering to the requirements of the Stored Communications Act (“SCA”). In October, the IRS Office of Chief Counsel issued an opinion addressing whether an IRS summons to an Internet Service Provider (“ISP”) to obtain recent e-mails was inconsistent with the SCA. Although the Memorandum expressly noted that it should not be cited as precedent, it provides guidance on how the IRS has modified its investigatory procedures and limited attempts to obtain recent personal email content from ISPs. Office of Chief Counsel IRS Memorandum No. 201141017, from Senior Counsel William Spatz, Release Date: Oct. 14, 2011. (click here for link).

On October 18, 2011, the 25th anniversary of the Electronic Communications Privacy Act (“ECPA”), Senators Ron Wyden (D-Ore.) and Mark Kirk (R-Ill.) joined with a coalition of key technology players, such as Google and Microsoft, to highlight the need for new federal legislation to protect the privacy of location data generated by smartphones and other mobile devices. Senate Bill 1212, named the “Geolocational Privacy and Surveillance Act” and pending before the Senate Judiciary Committee, includes a number of key provisions that protect users’ privacy. For example, law enforcement would need a warrant to obtain geolocation data from devices, and ISPs would have to receive a user’s consent before sharing such information with third parties. The legislation would also criminalize the interception of this data by unauthorized third parties, while allowing individuals to file lawsuits for damages if the Act is violated. Supporters of the legislation argue that it will modernize the outdated EPCA. For more details, see the following link.