Hacks Dangerous to Human Life: Using JASTA to Overcome Foreign State Sovereign Immunity in Cyberattack Cases

Abstract

State-sponsored cyber-attacks are on the rise. With the continually growing presence of automated and autonomous technologies in our lives, the ability to harm individuals behind a keyboard is becoming an increasingly plausible and desirable option for foreign states seeking to target persons abroad. Those particularly vulnerable to such attacks include political dissidents, activists, and any individuals deemed to be an enemy of the regime employing such cyber-attacks. In recent years, U.S. nationals victimized by foreign state-sponsored cyber-attacks have attempted to sue their foreign-state cyber-attackers in U.S. courts under the traditional exceptions to the Foreign Sovereign Immunities Act (FSIA), but to no avail. Commentators have offered a few suggestions to help these victims overcome the barrier of sovereign immunity, including an alternative interpretation of the FSIA’s noncommercial tort exception, or a cyber-attack exception amendment to the FSIA. This Note, however, offers a more concrete and accessible solution: the Justice Against Sponsors of Terrorism Act (JASTA). The recently passed JASTA creates the latest exception to the FSIA, which differs from the other exceptions in two important ways: (1) it does not require an alleged tort to have taken placed in the United States, and (2) it does not require the foreign state being sued to have been officially designated a state sponsor of terrorism by the U.S. government. Thus, under JASTA, many U.S. victims of state-sponsored cyber-attacks should be able to overcome sovereign immunity and finally attain justice against their foreign-state cyber-attackers in U.S. courts.