Doe v. Federal Democratic Republic of Ethiopia
2017 U.S. App. LEXIS 4414
| D.C. Cir. | 2017Background
- Kidane (pseudonym), an Ethiopian-born U.S. resident active in Ethiopian diaspora affairs in Maryland, alleges Ethiopia infected his home computer with FinSpy after he opened an email attachment in late 2012/early 2013.
- FinSpy is a government-grade spyware sold only to states; after installation it allegedly monitored communications and communicated with a server in Ethiopia.
- Kidane sued the Federal Democratic Republic of Ethiopia in D.D.C., asserting (1) a claim under the Wiretap Act and (2) Maryland common-law intrusion upon seclusion.
- The district court dismissed: it held the Wiretap Act does not support a private suit against a foreign state and that the FSIA’s noncommercial-tort exception (28 U.S.C. § 1605(a)(5)) did not apply because the “entire tort” did not occur in the United States.
- On appeal the D.C. Circuit affirmed dismissal for lack of subject-matter jurisdiction, resolving the case on the FSIA noncommercial-tort exception without reaching whether the Wiretap Act creates a private cause of action against a foreign sovereign.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FSIA noncommercial-tort exception (§ 1605(a)(5)) applies | Kidane: tort occurred in U.S. because FinSpy operated on his U.S. computer and caused ongoing injury here | Ethiopia: the tort’s precipitating acts and intent occurred abroad, so the “entire tort” did not occur in the U.S. | Held: exception inapplicable; the entire tort did not occur in the U.S.; dismissal for lack of jurisdiction affirmed |
| Whether Kidane may proceed under the Wiretap Act against a foreign state | Kidane: Wiretap Act prohibits intentional electronic interception and supports suit | Ethiopia: (and court below) Wiretap Act does not furnish a private suit against a foreign sovereign; jurisdiction barred by FSIA regardless | Held: Court did not decide Wiretap Act private-right question because FSIA jurisdictional defect disposes of the case; Wiretap claim dismissed for lack of jurisdiction |
Key Cases Cited
- Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir.) (jurisdictional review standard)
- El Paso Nat. Gas Co. v. United States, 750 F.3d 863 (D.C. Cir.) (de novo review of jurisdictional legal issues)
- Weinstein v. Islamic Republic of Iran, 529 U.S. 765 (U.S. 2000) (FSIA is sole basis for jurisdiction over foreign states)
- Jerez v. Republic of Cuba, 775 F.3d 419 (D.C. Cir.) (noncommercial-tort exception requires the entire tort to occur in the U.S.)
- Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C. Cir.) (same: entire tort must occur in forum)
- Liu v. Republic of China, 892 F.2d 1419 (9th Cir.) (distinguished — tortious conduct occurred in U.S.)
- Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C.) (distinguished — bomb planted/detonated in U.S.)
- Amerada Hess Shipping Corp. v. Argentine Republic, 488 U.S. 428 (U.S. 1989) (congressional purpose of § 1605(a)(5) to cover torts committed in U.S.)
- OBB Personenverkehr AG v. Sachs, 577 U.S. _, 136 S. Ct. 390 (U.S. 2015) (interpretation of commercial-activity exception and focus on gravamen of suit)