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Can Foreign Governments Launch Malware Attacks on Americans Without Consequences?

DEEPLINKS BLOG
February 2, 2017

Can foreign governments spy on Americans in America with impunity? That was the question in front of the U.S. Court of Appeals for the District of Columbia Circuit Thursday, when EFF, human rights lawyer Scott Gilmore, and the law firms of Jones Day and Robins Kaplan went to court in Kidane v. Ethiopia.

Jones Day partner Richard Martinez argued before a three-judge panel that an American should be allowed to continue his suit against the Ethiopian government for infecting his computer with custom spyware and monitoring his communications for weeks on end. The judges questioned both sides for just over a half hour. Despite the numerous issues on appeal, the argument focused on whether U.S. courts have jurisdiction to hear a case brought by an American citizen for wiretapping and invasion of his privacy that occurred in his living room in suburban Maryland. The question is relevant because, under the Foreign Sovereign Immunities Act, foreign governments are only liable for torts they commit within the United States.

Mr. Martinez argued that the location where the harm was inflicted upon Mr. Kidane was in Maryland, where his computer and he were the entire time he was spied upon. The question of whether U.S. courts can provide a remedy to an American who was wiretapped shouldn't turn on where the eavesdropper was sitting, but rather where the actual wiretapping occurred, which in this case was Silver Spring, MD.

Ethiopia's lawyer argued next, taking the position that it should be able to do anything to Americans in America, even set off a car bomb, as long as Ethiopia didn’t have a human agent in the United States. One judge asked what would happen if Ethiopia mailed a letter bomb into the United States to assassinate an opponent, or hacked an American's self-driving car, causing it to crash. Ethiopia didn't hesitate: their counsel said that they could not be sued for any of those.

This case began in early 2013, when, with the help of EFF and the University of Toronto's Citizen Lab, Mr. Kidane found Ethiopian government spyware on his personal computer in Maryland. Our investigation concluded that the spyware which recorded Mr. Kidane's Skype calls was part of a systemic campaign by the Ethiopian government to spy on perceived opponents. We filed this lawsuit in February 2014.

In Kidane v. Ethiopia, our client uses the pseudonym of Mr. Kidane in order to protect the safety and well-being of his family both in the United States and in Ethiopia. Mr. Kidane is a supporter of members of the Ethiopian democracy movement and a critic of the government. He came to the U.S. over 20 years ago, obtaining asylum and eventually citizenship. He currently lives with his family in Maryland.

We expect the D.C. Circuit to rule on this appeal in the next few months.

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