This article argues that Congress should amend the Foreign Sovereign Immunities Act so that foreign states and their agents can be held liable in United States courts for cyberattacks. The author, Matthew A. Powell, notes that the FSIA was enacted in 1976, well before the internet, and contends that it is now out of date.
Powell focuses on the Act's noncommercial tort exception, which lifts immunity for damage occurring in the United States caused by a foreign state's tortious act. Most federal decisions have adopted the "entire tort" rule, requiring that the attack occur wholly within United States territory from inception to execution. Powell argues this yields absurd results and almost no remedy, since hackers rarely travel to the United States to launch attacks. He examines several responses, including draft FSIA amendments, financial rewards for hackers who prevent attacks, cryptocurrency tracing and bilateral cybersecurity agreements.
How to cite
Matthew A. Powell, A Call to Congress: The Urgent Need for Cyberattack Amendments to the Foreign Sovereign Immunities Act, 7 J.L. & Cyber Warfare, No. 1 (2019), https://www.jlcw.org/articles/a-call-to-congress-the-urgent-need-for-cyberattack-amendments-to-the-foreign-sovereign-immunities-act.