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.
A very similar issue arose recently in Doe v. Ethiopia, 851 F.3d 7 (D.C. Cir. 2017). I previously covered the District Court decision and the D.C. Circuit’s decision. The basic point of the case was that the foreign state, accused of hacking a server in the United States from abroad, was immune from jurisdiction. The noncommercial tort exception to immunity applies, the courts held, only if the entire tort took place in the United States. In Doe, some elements of the tort (there, the tort of intrusion upon the plaintiff’s seclusion) did and some didn’t. If the court in New York follows the reasoning in Doe, then the non-commercial tort exception won’t apply.
I think this is a close call. Here is how I considered the issue in the earlier posts:
While the court thought the question was close, it ultimately sided with Ethiopia. This is somewhat surprising to me. Suppose it were 1982 and instead of hackers in Ethiopa, we were considering our favorite Soviet spies, Phillip and Elizabeth Jennings. They stealthily break in to a dissident emigré’s apartment and copy his private diary from his IBM PC onto a floppy disk, which they spirit back to the Center via the diplomatic bag. Then there would be no question that all the elements of the tort would have occurred within the United States. Does the change in the technological mechanics of how the theft of private information was accomplished matter? Should it? I am not so sure.
On the one hand, I think that a court could rule in favor of the DNC without doing violence to the statute, since nothing in the statute says expressly that all of the elements of the tort have to take place in the US. Courts could simply read the statute in a new but sensible way in light of changing technologies, which is something courts do all the time. On the other hand, comity is at the heart of the FSIA, and I am sure the United States would take the position that when its own spies steal political information from abroad, it is not therefore subject to the jurisdiction of a foreign court in a tort case. The injury to the DNC here was not so much from the spying itself, which was no doubt illegal under US law but which is hardly the kind of personal injury tort the non-commercial tort exception most naturally is read to address, but rather from the very unusual publication of the purloined material. What makes this case unique is that ordinarily spies keep their secrets to themselves!
There is probably more to say about the trade secret angle and the assertion about the commercial activity exception, but at first glance that part of the claim looks dubious to me. The nature of the act—spying for political purposes—seems governmental, not commercial. But we will see.
I will keep my eye on this very interesting case.