D.C. Circuit Review – Reviewed: Espionage

by Aaron Nielson — Friday, Mar. 17, 2017@Aaron_L_Nielson

This blog is hosted by the Yale Journal on Regulation — so I usually my focus on blogging on, you know, regulation. Funny that. This week, however, I am making an exception. You see, I have an important public service announcement: If a foreign state is spying on you, there is a good chance you can’t sue.

Don’t take my word for it. After all, what do I know about spying? Nothing. But I do read D.C. Circuit opinions, and this week, the D.C. Circuit addressed allegations that Ethiopia was spying on someone in the United States.

In John Doe v. Ethiopia,* Judge Henderson, joined by Judges Wilkins and Sentelle, rejected an attempt to sue Ethiopia for using spyware to monitor computer activity. This is what allegedly happened:

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. Kidane’s complaint is silent as to whether the individual who sent Kidane the e-mail was located in the United States but the e-mail’s text suggests that individual was located in London. Once opened, the attachment allegedly infected Kidane’s computer with a “clandestine … program[] known as FinSpy.” FinSpy is “a system for monitoring and gathering information from electronic devices, including computers and mobile phones, without the knowledge of the device’s user.” It is “sold exclusively to government agencies.” After installation on Kidane’s computer, FinSpy “began … recording some, if not all, of the activities undertaken by users of the computer,” whether Kidane or his family members. It then allegedly communicated with a server in Ethiopia.

Kidane sued Ethiopia. Unfortunately for him, however, the claim was barred by the Foreign Sovereign Immunities Act. Although his computer may have been in the United States, “the tortious intent aimed at [plaintiff] plainly lay abroad and the tortious acts of computer programming likewise occurred abroad.” According to the panel, “the entire tort . . . must occur in the United States for the noncommercial-tort exception to apply.” To be sure, if a foreign power performs an assassination in the United States, the noncommercial-tort exception may apply since the “actions ‘occurring in the United States'” are themselves “tortious.” Yet “Ethiopia’s digital espionage is of a different character. Without the software’s initial dispatch or an intent to spy — integral aspects of the final tort which lay solely abroad — Ethiopia could not have intruded upon Kidane’s seclusion under Maryland law.”

The D.C. Circuit’s other cases are also noteworthy.

In Matthew A. Goldstein, PLLC. V. Department of State, for instance, Judge Griffith, joined by Judges Srinivasan and Millet, upheld dismissal of a case involving the international arms trade. It seems that an attorney — whose firm advises those in this industry — wants to know where the government draws the line regarding which sorts of activities are regulated. But the Department declined to give him a hard-and-fast opinion. The D.C. Circuit concluded there was no standing to pursue the litigation: “There must be some desired conduct by the plaintiff that might trigger an enforcement action in the first place.” But

here, we have no facts from which to conclude that the law firm risks incurring any liability by failing to register with the State Department. Indeed, Goldstein offers only vague and general descriptions of legal activities that the firm intends to undertake, none of which the State Department views as brokering, as the Department has made abundantly clear on its website and, more particularly, at oral argument before this court. Unsurprisingly, then, the State Department has shown no intention of enforcing the brokering regulations against Goldstein’s law firm.

The last case this week doesn’t have the same sort of international intrigue. But it also is quite interesting — especially to lawyers. In National Association for the Advancement of Multijurisdiction Practice v Howell, Judge Brown, joined by judges Pillard and Edwards, rejected various challenges to the DC bar. The practice of law is limited to “active members… [of] the District of Columbia Bar; … active members … of the Bar of any state in which they maintain their principal law office; or … [certain] in-house attorneys.” Plaintiffs unsuccessfully challenged the “Primary Office Provision.” (They sued all of the judges of the U.S. District Court for the District of Columbia so a federal judge from Massachusetts presided in the trial court.) The Court rejected a number of challenges. For instance, “the Principal Office Provision is properly subject to rational basis review. For purposes of the Equal Protection Clause, it neither burdens a fundamental right nor targets a suspect class. It distinguishes among attorneys based on whether they have been admitted to the bar of the state where their principal law office is located, not on the basis of residency or any protected characteristic.” This, says the Court, is fine:

Here, the Principal Office Provision ensures attorneys who practice before the District Court — but who avoid supervision by the D.C. Bar Association — are subject to supervision by the state to which their practice is most geographically proximate. The Principal Office Provision embodies a reasonable assumption: local licensing control is better positioned to facilitate training sessions, conduct monitoring programs, and field complaints from the public — all rational bases for the Local Rule. Indeed, much more restrictive district court rules have passed rational basis review in other circuits.

Thus, although “there may be good policy reasons for the outcomes NAAMJP urges,” yet “as has been amply demonstrated in dozens of legal opinions penned by judges across the country, NAAMJP has identified no legal basis upon which to compel federal or state courts to adopt the rules it desires.”

Yup — we have spying, international arms trading, and the bar exam in the same week. What an interesting court.

* “John Doe” is also known as “Kidane.”

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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