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tortjurisdictionasylumattachment
tortjurisdictionhuman rightsasylumattachment

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Doe v. Federal Democratic Republic of Ethiopia

Facts

John Doe, proceeding under the pseudonym 'Kidane', alleged that he was tricked into downloading spyware from an email attachment that allowed the Ethiopian government to spy on him. Kidane, an Ethiopian asylum seeker living in Maryland, opened an email attachment that infected his computer with FinSpy, a surveillance software. The email was allegedly sent by or on behalf of Ethiopia, but the entire tortious act, including the intent and programming, occurred outside the United States.

Now an American citizen, Kidane was born in Ethiopia. He obtained asylum in the United States in the early 1990s and has at all relevant times lived in Silver Spring, Maryland. There, he has remained active in the Ethiopian community and has maintained contacts who work to increase awareness of corruption and human rights issues in Ethiopia. As alleged in the complaint, in late 2012 or early 2013, Kidane opened an attachment to an e-mail he received from an acquaintance. The e-mail had been forwarded and was allegedly sent originally by or on behalf of Ethiopia. Once opened, the attachment allegedly infected Kidane's computer with a 'clandestine . . . program[] known as FinSpy.'

Issue

Whether the Foreign Sovereign Immunities Act (FSIA) grants immunity to Ethiopia in this case and whether the non-commercial tort exception applies.

Whether the Foreign Sovereign Immunities Act (FSIA) grants immunity to Ethiopia in this case and whether the non-commercial tort exception applies.

Rule

The FSIA provides that foreign states are immune from the jurisdiction of U.S. courts unless an exception applies. The non-commercial tort exception applies only if the entire tort occurs within the United States.

The FSIA is 'the 'sole basis for obtaining jurisdiction over a foreign state in our courts.' Unless an exception applies, 'a foreign state shall be immune from the jurisdiction of the courts of the United States.' 28 U.S.C. 1604. One of those exceptions is the noncommercial-tort exception. It abrogates immunity from an action involving 'personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of [a] foreign state or of any official or employee of that foreign state while acting within the scope of his office.'

Analysis

The court found that the entire tort did not occur in the United States, as the spyware was deployed from abroad and the intent to spy was also established outside the U.S. The court emphasized that the non-commercial tort exception requires that the entire tort, including the act causing injury, must occur in the U.S., which was not the case here.

The court found that the entire tort did not occur in the United States, as the spyware was deployed from abroad and the intent to spy was also established outside the U.S. The court emphasized that the non-commercial tort exception requires that the entire tort, including the act causing injury, must occur in the U.S., which was not the case here.

Conclusion

The court affirmed the district court's dismissal of Kidane's claims against Ethiopia for lack of subject matter jurisdiction under the FSIA.

The court affirmed the district court's dismissal of Kidane's claims against Ethiopia for lack of subject matter jurisdiction under the FSIA.

Who won?

The Federal Democratic Republic of Ethiopia prevailed because the court ruled that it was immune from suit under the FSIA, and the non-commercial tort exception did not apply.

The Federal Democratic Republic of Ethiopia prevailed because the court ruled that it was immune from suit under the FSIA, and the non-commercial tort exception did not apply.

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