Suing the Surveillance States: The (Cyber) Tort Exception to the Foreign Sovereign Immunities Act

64 Pages Posted: 23 Jun 2015

See all articles by Scott Gilmore

Scott Gilmore

Center for Justice and Accountability

Date Written: May 1, 2015

Abstract

From the hacking of newsrooms to the wiretapping of dissidents, foreign states are infiltrating American computers and intercepting communications — in stark violation of federal law and international norms. So far, the policy debate on cybersecurity has taken it for granted that foreign states enjoy immunity for cyber attacks on U.S. targets. This Article is the first to challenge that assumption.

It argues that the tort exception to the Foreign Sovereign Immunities Act waives the immunity of foreign states for cyber trespass and wiretapping of American computer networks. Showing courts and litigants a roadmap to this new line of litigation, the Article explores the intersection of twentieth century doctrines of immunity with twenty-first century torts. It maps the FSIA’s territorial limits onto the geography of cyberspace, and then considers how modern sensibilities conceptualize hacking and eavesdropping as forms of personal injury. Next, it examines whether statutory violations are “torts” for FSIA purposes. Finally, it argues that computer misuse laws and international norms on territorial sovereignty check the discretion of foreign states to surveil U.S. residents.

It closes with a claim for the essential justiciability of cyber tort suits against foreign sovereigns. Using tort law to check governmental excess is central to the Anglo-American legal heritage. In our globally networked era, where Americans are increasingly living under the electronic surveillance of foreign powers, cyber tort suits can serve as a tool to express public values — and limit raw sovereign power — in the contested digital domain.

Keywords: Foreign Sovereign Immunities Act, cyberlaw, hacking, surveillance, privacy, wiretap, immunity

Suggested Citation

Gilmore, Scott, Suing the Surveillance States: The (Cyber) Tort Exception to the Foreign Sovereign Immunities Act (May 1, 2015). Columbia Human Rights Law Review, Vol. 46, No. 3, 2015, Available at SSRN: https://ssrn.com/abstract=2622184

Scott Gilmore (Contact Author)

Center for Justice and Accountability ( email )

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