Washington, D.C. – The Electronic Frontier Foundation (EFF) urged an appeals court today to review a dangerous decision by a three-judge panel that would allow foreign governments to spy on Americans on U.S. soil—just as long as they use technology instead of human agents.
In Kidane v. Ethiopia, an American living in Maryland had his family computer infiltrated by the Ethiopian government. Agents sent an infected email that made its way to Mr. Kidane, and the attached Microsoft Word document carried a malicious computer program called FinSpy that’s sold only to governments. The spyware took control of the machine, making copies of every keystroke and Skype call, and sending them back to Ethiopia as part of its crackdown on critics.
But last month, a panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled that Mr. Kidane could not seek justice for this surveillance in an American court because the spying was carried out without a human agent of the Ethiopian government setting foot in the U.S. In essence, this would mean governments around the world have immunity for spying, attacking, and even murdering Americans on American soil, as long as the activity is performed with software, robots, drones, or other digital tools.
“We already know about technology that will let attackers drive your car off the road, turn off your pacemaker, or watch every communication from your computer or your phone. As our lives become even more digital, the risks will only grow,” said EFF Senior Staff Attorney Nate Cardozo. “The law must make it clear to governments around the world that any illegal attack in the United States will be answered in court in the United States.”
In a petition filed today, EFF and our co-counsel Scott Gilmore plus attorneys at the law firms of Jones Day and Robins Kaplan asked the appeals court to rehear this case en banc, arguing that last month’s panel decision puts the U.S. in the absurd situation where the American government must follow strict requirements for wiretapping and surveillance, but foreign governments don’t have the same legal obligations.
“American citizens deserve to feel safe and secure in their own homes using their own computers,” said EFF Executive Director Cindy Cohn. “The appeals court should vacate this decision, and ensure that the use of robots or remote controlled tools doesn’t prevent people who have been harmed by foreign government attacks from seeking justice.”
For the full petition for rehearing:
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