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
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.
The U.S. District Court for the District of Columbia held recently that Syria is liable for the death of American war correspondent Marie Colvin and awarded Colvin’s family $302.5 million—$2.5 million in compensatory damages and $300 million in punitive damages. Colvin was killed in Syria when President Bashar Assad’s forces bombed the Baba Amr Media Center in Homs while she was in the facility.
On Wednesday, the unnamed foreign company seeking to quash a subpoena in connection with the special counsel investigation filed a reply brief with the Supreme Court supporting its petition for certiorari. The brief is 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.
A mysterious judgment in a case with purported ties to the Mueller investigation highlights a topic of growing significance: the criminal prosecution of foreign-state-owned enterprises. The judgment by the U.S. Court of Appeals for the D.C.
Writing in Lawfare in April 2018, I considered the role of foreign sovereign immunity in the Democratic National Committee’s lawsuit against the Russian Federation and Russian individuals and entities. The case raised an interesting set of issues, I noted, but “these questions will only arise if Russia and the state-related defendants are properly served and if they decide to litigate rather than default.” The courts may get to think through some of these questions after all.
On May 21, the Supreme Court granted certiorari in Jam v.
Could a U.S. State Sue Russia for Election-Related Hacking Under the Supreme Court’s Original Jurisdiction?
The Senate intelligence committee has said that a small number of states had their election computer defenses breached by Russian hackers in 2016. Assume, as the report writes, that those hackers were linked to the Russian government. Could the states whose systems were breached sue Russia under the Supreme Court’s original jurisdiction?
The Democratic National Committee’s lawsuit against the Russian Federation will run aground, as Ingrid Wuerth notes, unless the DNC can find a way around Russia’s immunity in American courts.