Extinguishing the Firewall: Addressing the Jurisdictional Challenges to Bringing Cyber Tort Suits Against Foreign Sovereigns
The rapid advancement of technology has resulted in new forms of tortious activity. Increasingly, these cyber torts are perpetrated by foreign states. Notwithstanding other barriers to collecting damages for a cyber tort, a plaintiff suing for a foreign-state-perpetrated cyber tort must prove that the alleged tortious activity satisfies one of the Foreign Sovereign Immunities Act’s exceptions—most likely the noncommercial tort exception. Recently the U.S. Court of Appeals for the D.C. Circuit held that a U.S. court lacked jurisdiction to hear a claim against a foreign state that hacked a U.S. national’s email account. The court found the noncommercial tort exception inapplicable because the intent to hack was held by a party abroad, and thus the “entire tort” did not occur in the United States. This Note argues that the D.C. Circuit improperly extended the “entire tort” doctrine from traditional physical torts to cyber torts. Instead, the noncommercial tort exception should apply to foreign-state-perpetrated cyber torts. This Note further proposes a modified location test for courts to use in determining whether a cyber tort satisfies the exception’s “occurring in the United States” requirement.
Samantha N. Sergent