Department of Justice attorneys should adhere to the Office of Legal Counsel’s (OLC) interpretation, which represents the Department’s position on the meaning of the Wire Act. See 28 C.F.R. § 0.25.
However, as a matter of discretion, he further added:
Department of Justice attorneys should refrain from applying Section 1084(a) in criminal or civil actions to persons who engaged in conduct violating the Wire Act in reliance on the 2011 OLC opinion prior to the date of this memorandum, and for 90 days thereafter. A 90-day window will give businesses that relied on the 2011 OLC opinion time to bring their operations into compliance with federal law. This is an internal exercise of prosecutorial discretion; it is not a safe harbor for violations of the Wire Act.
This should give some comfort to some entities who relied on the 2011 memo. However, it is important to understand that this is not a complete safe harbor, but rather an exercise of prosecutorial discretion by the DOJ.