As cyber threats during the coronavirus pandemic increase, Congress has considered allowing private lawsuits against foreign states for alleged unauthorized cyber activity. This response would create more problems than it solves.
Latest in Foreign Sovereign Immunities Act
NSO Group filed a motion to dismiss WhatsApp’s lawsuit over the alleged hacking of 1,400 cellphones running the WhatsApp application. The motion to dismiss involved one curious claim: NSO claimed derivative sovereign immunity from suit.
Lawfare's biweekly roundup of U.S.-China technology policy news.
I have an op-ed in today’s Washington Post arguing that lifting China's immunity would be a mistake. Here are some excerpts.
Conventional wisdom and many lower court cases hold that foreign states are not entitled to constitutionally based personal jurisdiction protections in federal courts because they are not “persons” protected by the Fifth Amendment. That reasoning is incorrect as a matter of constitutional text and history, and it leads to poor results as a matter of policy for reasons explored at length in a forthcoming article and summarized here.
On Feb. 27, the Supreme Court issued a 7-1 opinion in Jam v. International Financial Corporation, deciding that international organizations have the same level of immunity from lawsuits granted to foreign governments.
On Friday, Solicitor General Noel Francisco filed a brief on behalf of the special counsel's office regarding In Re Grand Jury Subpoena, the case concerning the special counsel's attempt to subpoena an unnamed company owned by an unnamed foreign government. The brief argues that the Supreme Court should deny the corporation's petition for a writ of certiorari. The brief is available below.
On Jan. 8, the U.S. Court of Appeals for the D.C. Circuit released its redacted opinion In re Grand Jury Subpoena, the mysterious case with apparent links to the Mueller investigation concerning an unnamed corporation (“the Corporation”) owned by an unnamed foreign country.
Earlier this evening, Dec. 18, the U.S. Court of Appeals for the D.C. Circuit released a judgment in In re Grand Jury Subpoena, a mysterious case that has drawn attention for its suspected connection to the Mueller investigation. The ostentatious secrecy has fueled speculation that the case might involve something as dramatic as an effort to secure testimony from the president himself.
The Supreme Court will soon hear oral arguments in Jam v. International Finance Corp. The case, which will be argued on October 31, 2018, raises an important threshold question about the immunity of international organizations from suit in the United States. But the briefing does not provide the full answer.