Posted on April 20, 2018
The Democratic National Committee has filed a lawsuit against Russia, Wikileaks, President Trump’s campaign, and others in New York. The complaint features many of the claims we have been reading in the news about the hacking of the DNC’s emails, their publication on Wikileaks, the Trump campaign’s participation, and so forth.
My views on President Trump and his administration are well-known to regular readers. I’m not going to comment on the merits of the claims or on the political wisdom of the suit. But I think it is worth it to address, briefly and in a preliminary way, the jurisdictional issues raised by the claim against Russia and instrumentalities of the Russian state. The basic rule is that Russia is immune from the jurisdiction of the US courts unless the DNC can show that an exception applies. The DNC has pointed to two exceptions, the non-commercial tort exception and the commercial activity exception. From the complaint (¶ 29):
Russia is not entitled to sovereign immunity because the DNC’s claims arise out of Russia’s trespass onto the DNC’s private servers—a tortious act committed in the United States. In addition, Russia committed the trespass in order to steal trade secrets and commit economic espionage, two forms of commercial activity undertaken in and directly affecting the United States.
It appears from the complaint (though it’s not crystal-clear) that the claim is that Russian agents hacked the DNC’s servers (which are located in the United States) from Russia. Or at least there is no allegation to the contrary. I assume for purposes of this post that that’s the case.