Reason.com

Free Minds & Free Markets

Don't Give Foreign Hackers Immunity in U.S. Courts

If foreign hackers are immune from American civil suits under current law, don’t be surprised to see Congress step in to try to close the loophole.

Can an American citizen or business whose emails were hacked by a foreign government successfully sue the foreign government for damages?

All of a sudden, it's a bipartisan issue.

The Democratic National Committee garnered headlines earlier this year when it sued Russia in federal court in New York, alleging that Russia had stolen emails from John Podesta, who was the chairman of Hillary Clinton's presidential campaign.

And Elliott Broidy, who was deputy finance chairman of the Republican National Committee, is suing Qatar in federal court in California, alleging that Qatar launched a sophisticated cyber-attack on his company's email accounts and leaked the information it obtained to the press. President Trump had publicly acknowledged and praised Broidy at an event at which Trump also spoke of a U.S.-Qatar "dispute" over Qatar's funding terrorism.

The legal complaints by both the DNC and Broidy claim that they should be allowed to go forward under existing exceptions to the Foreign Sovereign Immunities Act, a 1976 law that generally grants foreign states immunity from American courts. Qatar's lawyers, led by Mitchell Kamin of the firm Covington & Burling LLP, argue in a June 27 court filing that the exemptions do not apply.

"This is precisely the kind of intrusion into the affairs of sovereign nations that the Foreign Sovereign Immunities Act of 1976 was designed to prevent," Kamin writes in a memo to Judge John F. Walter of the U.S. District Court for the Central District of California, urging that the case be dismissed. "Qatar's sovereign interests in this case lie at the heart of the FSIA's fundamental purpose: protecting sovereign functions from harassment by foreign litigants."

Kamin argues that upholding sovereign immunity in the Broidy-Qatar case "is crucial to fostering respect and reciprocal treatment of the United States government in courts abroad."

Broidy's complaint, filed by Lee Wolosky of the firm Boies Schiller Flexner LLP, argues that many of the actions against Broidy took place within the U.S.

"This case presents the issue of whether a nation state can orchestrate and execute a criminal conspiracy directed against a United States citizen on United States soil and then invoke sovereign immunity to avoid liability, accountability and exposure," Wolosky writes.

A hearing before Judge Walter is scheduled for July 30 in Los Angeles.

The DNC-Russia case is moving more slowly than the Broidy-Qatar one, but similar issues are likely to arise. In both cases, while there are plenty of signs pointing to foreign official involvement, nothing has yet been proven to American legal standards.

If courts rule that foreign hackers or their American hired hands are immune from American civil suits under current law, don't be surprised to see Congress step in to try to close the loophole.

I first learned about the Foreign Sovereign Immunity Act in the 1990s, when I was a reporter in Washington and Leonard Garment, who had been Richard Nixon's White House counsel, alerted me to a legislative effort to make it clear that FSIA was not a shield to protect, say, the government of Libya from lawsuits by parents who had lost children in the terrorist bombing of Pan Am Flight 103.

Such legislation was indeed enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996.

Back then, I sympathized with the intention of holding terrorist-sponsoring states accountable for their actions. I felt that ideally, however, this was a function for the American national security apparatus, rather than plaintiff's lawyers. It was the Clinton era, when plaintiff's lawyers were in some cases more fearsome than the American military, and their private jets seemed to outnumber those of the U.S. Air Force.

More than 20 years later, our military is relatively stronger and the trial lawyers are relatively weaker. Cyberattacks seem to have replaced airplane bombings at the cutting edge of asymmetric warfare.

Today's questions, though, are similar to those in the 1990s. Maybe the American government needs to step up. Maybe it's an issue for private litigation. Maybe existing law is sufficient, or maybe Congress needs to act.

It is hard to defend the proposition that some foreign country, or its agents, should be able to able to hack into the email of a prominent American and make the information public without paying some sort of severe price. It's not that different from getting away with state-sponsored terrorism.

Foreign sovereign immunity is an outgrowth of the diplomatic immunity that allows American ambassadors overseas to do their jobs without having to worry much about getting arrested or sued. There's a certain logic to it. But if the courts rule that logic means a free pass for cyberattacks, they can expect a hard push back from the public. For all the warnings about not putting anything important or sensitive in email, allowing foreign governments to just come and get it seems like asking for trouble.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

Photo Credit: IGOR STEVANOVIC / SCIENCE PHOTO LIBRARY/Newscom

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • John||

    It is hard to defend the proposition that some foreign country, or its agents, should be able to able to hack into the email of a prominent American and make the information public without paying some sort of severe price. It's not that different from getting away with state-sponsored terrorism.

    No actually it is quite easy Ira. If we start doing it to them, they will start doing it to us.

  • ||

    John, in a trade war, no one wins.

  • Just Say'n||

    It's a good thing that the US doesn't do any nefarious activities in other countries. Otherwise this might come back to bite us. Yup, nothing to see here folks.

  • Just Say'n||

    And there is less than a zero percent chance that the US would allow for fair play from foreign courts, especially if their cases are as flimsy as the Democratic Party's lawsuit against Russia.

    Henry Kissinger still walks free. And that's never going to change

  • Fist of Etiquette||

    I don't want our precious government functionaries exposed to litigation from aggrieved foreigners.

  • Citizen X||

    That's why we're outsourcing our war crimes to robots, because who's going to sue a robot? They don't have any money. MAGA!

  • Flinch||

    ...trial lawyers sink into clinical depression at the thought.

  • Diane Reynolds (Paul.)||

    I for one believe that the DNC should spend as many resources as possible suing Russia.

  • Fats of Fury||

    Seth Rich paid some sort of severe price, no?

  • Fats of Fury||

    Bradley Manning too. They whacked off his pee pee.

  • Ken Hagler||

    Oh, sure, embarrassing government functionaries is totally the same as murdering people. Just ask the victims, of each, they won't dispute it (because the victims of state sponsored terrorism are _dead_).

  • sharmota4zeb||

    This article sounds logical to me, but what happens when an American wins a lawsuit and the foreign government ignores the ruling?

  • Don't look at me.||

    Easy. You sue them.

  • GILMORE™||

    ^check out the big brain on brad

  • Mickey Rat||

    So how are you going to inflict severe penalties on a foreign government or its agents?

    Throwing out their diplomats? Freezing their assets in the USA? Trade sanctions? War?

    The problem with with punishing foreign actors is that they are out of jurisdiction, and you need the cooperation of their government. If their government is the problem, you are likely not getting any real cooperation.

  • damikesc||

    Why shouldn't we? We gave Hillary's IT guy immunity in his illegality.

  • GILMORE™||

    "whose emails were hacked by a foreign government "

    The whole piece here seems to dodge the core problem by simply begging-the-above-question

    in order to sue a foreign govt for 'hacking', you need to prove that that's exactly what happened, and there's no other possible explanation

    and to prove that, you'd need to present evidence for those claims in court.

    the problem with these claims is that victims of hacking either

    a) have no conclusive evidence proving who did it; or the evidence they have is circumstantial at best... or
    b) they can't show the evidence connecting any foreign govt in the first place, because that intelligence is acquired by...

    - surprise! - our own, often illegal, intrusive surveillance of foreign governments!

    iow, trying to hold foreign govt's to some legal standard which we exclude ourselves from? requires some awkward contortions

    whatever benefits might be gained by slapping the wrist of some foreign govt for snooping/corporate espionage are far outweighed by PR risks of exposing US intelligence-gathering methods in open court.

    the whole premise of the idea is idiotic. "Cyber snoopery" is the wild west, and it remains that way mainly because *its in US interests* for it to be so. We control all the major pipes, and we hoover up all sorts of stuff we want from others at will.

    few others cry foul because 'what can they do about it'? If you bring them to court, they suddenly have platform to complain.

  • GILMORE™||

    ^also:

    what Mickey said

    On top of my own, 'realpolitick' point, there's the obvious problem of, "And what penalties can we realistically enforce?"


    how are you going to inflict severe penalties on a foreign government or its agents?

    Throwing out their diplomats? Freezing their assets in the USA? Trade sanctions? War?

    Even if you "Win" in court.... what if they look at the penalties list, and go, "Well, i'll just have to check w/ my accountant about that", fly off, and proceed to fucking ignore you for the next 20 years?

    the entire idea of suing foreign govts is blinkered nonsense.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online