Sovereign Liability for Cross-Border Torts: How US Courts Are Meeting The Challenges Posed By International Terrorism and Cyber Torts
This article explores the problems of tackling cyber terrorism in US courts, as the difficulties of cross-border cases and sovereign defendants bring new challenges when seeking justice for terrorist acts. Following several high profile cases over the last two decades, Charles H. Camp and Theresa Bowman explain how the legal definition of “terrorism” is becoming out-dated as terrorism becomes technological.
Acts of cyber crime and acts of terrorism both share the distinction of offering unique challenges to domestic courts hoping to protect the rights of victims no matter where the perpetrator is located. Hackers and terrorists alike may wreck substantial havoc remotely from anywhere in the world, often with the aid or urging of a foreign government. The prosecution of foreign governments for cross-border torts under US law is evolving to meet the conceptual challenges posed by modern international crime.
In the United States, lawsuits against foreign sovereigns must satisfy one or more exceptions to the general rule that a foreign sovereign is immune from suit. The Foreign Sovereign Immunities Act (“FSIA”) is the exclusive jurisdictional tool by which US plaintiffs may bring a lawsuit against a foreign sovereign government. Lawsuits against foreign governments for their involvement in acts of terrorism, and cyber crime must pass through the FSIA by satisfying at least one of several exceptions to the rule that foreign sovereigns are immune from suit.
When the FSIA was enacted in 1976, a modern understanding of “terrorism” was still young. For decades, terrorism had been understood largely within the revolutionary context of post-colonial movements, prompting the now widely rejected dictum that “one’s man’s terrorist is another man’s freedom fighter.”1 It was not until 1996 that Congress amended the FSIA to include an exception for acts of terrorism. That exception, however, applies only to countries designated as “state sponsors of terrorism at the time” of the act.2 As of this writing, only three countries are included on the list.
About the Authors
Charles H. Camp teaches international negotiations at George Washington University Law School and is an international lawyer based in Washington, D.C. with thirty years experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. After practicing at large, international law firms for twenty years, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in 2001 to focus exclusively on effective, personalised representation in complex, international matters.
Theresa Bowman is senior associate at the Law Offices of Charles H. Camp, P.C., practicing in the areas of international commercial disputes and arbitration. Before her current post, Ms. Bowman, a graduate of the George Washington University Law School and President of the Student Bar Association, completed a post-graduate fellowship as a judicial law clerk for the Honourable Reggie B. Walton, District Court Judge for the District of Columbia.
1. For a fuller discussion of the United Nation’s rejection of the claim that political ends may in some cases justify terrorist means, see Slaughter, Anne-Marie, Note and Comment: Security, Solidarity, and Sovereignty: The Grand Themes Of UN Reform, 99 A.J.I.L. 619 (July 2005).
2. See 28 US Code § 1605(A)(a)(2)(A)(i)(I).
3. H.R. Rep. No. 94-1487, at 20-21 (1976), reprinted in, 1976 U.S.USC.C.A.N. 6604, 6619
4. H.R. Rep. No. 94-1487, at 20-21 (1976), reprinted in, 1976 U.S.USC.C.A.N. 6604, 6619.
5. Scott A. Gilmore, Suing The Surveillance States: The (Cyber) Tort Exception To The Foreign Sovereign Immunities Act, 46 Colum. Human Rights L. Rev. 227) at *258.
6. 46 Colum. Human Rights L. Rev. at *263 citing Bernstein v. Nat’l Broad. Co., 129 F. Supp. 817, 825 (D.D.C. 1955), Pearce v. E.F. Hutton Grp., Inc., 644 F. Supp. 1490, 1499 (D.D.C. 1987).
7. 175 F. Supp. 2d 367, 368 (D. Conn. 2001).
8. 175 F. Supp. 2d at 371.
9. MacDermid, Inc. v. Deiter, 2011 US Dist. LEXIS 137338 (D. Conn. 2011), rev’d 702 F.3d 725 (2012).
10. Meredith Reid Sarkees & Frank Whelon Wayman, Resort to War: A Data Guide To Inter-State, Extra-State, Intra-State and Non-State Wars, 1816-2007 333 (CQ Press, 2010) at notes 3, 333, 336.
11. 488 F. Supp. 665, 665-666.
12. See O’Neil v. Saudi Joint Relief Comm. (In Re Terrorist Attacks on September 11, 2011), 714 F. 3d 109 (2d Cir. 2013); In Re Terrorist Attacks on September 11, 2011, Opinion 03-MDL-1570 (GBD), 2015 US Dist. LEXIS 133289 (S.D.N.Y. 2015).
13. In Re Terrorist Attacks on September 11, 2011, Opinion 03-MDL-1570 (GBD) at 713 citing 714 F. 3d at 117 n.10.
14. Olsen v. Government of Mexico, 729 F.2d 641, 646 (9th Cir. 1984).