[00:00:01] Speaker 00:
Case number 16-7081, John Doe, also known as Gideon, appellant versus the Federal Democratic Republic of Ethiopia.

[00:00:09] Speaker 00:
Mr. Martinez for the appellant, Mr. Snyder for the appellee.

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Mr. Martinez, good morning.

[00:00:15] Speaker 03:
Good morning, Your Honor.

[00:00:18] Speaker 06:
And good morning, Your Honors.

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May it please the Court.

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With the Court's permission, I'd like to reserve three minutes of my time for

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This case presents a question of first impression, whether Americans may avail themselves of their own courts when its foreign state invades a citizen's privacy by installing spyware on that citizen's computer and thereby intercepting electronic communications occurring within the United States.

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The alternative proposed by Ethiopia, in this case, is to adopt a rule that would permit foreign states to spy on Americans at will, commit torts within the United States, with impunity.

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Is it a jurisdictional question?

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You seem to be jumping the merits, but isn't the question here whether, in light of the FSAA, whether this is within our jurisdiction?

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Certainly, Your Honor, that is my first question.

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I will indeed be aware of that.

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That's where you lost the water, wasn't it?

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Yes, Your Honor.

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The district court here erred in two ways.

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First, the court erred in finding that the Foreign Sovereign Immunity Act, specifically the non-commercial tort exception of 28 USC 1605A5, did not apply to domestic interception and intrusion upon seclusion of a U.S.

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citizen's computer that was used at all times in Maryland.

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Second, the district court committed error

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in holding that the Wiretap Act does not provide a civil remedy against a foreign state that through its persons wiretapped Mr. Khedane's computer and intercepted electronic communications within the United States.

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Turning first to the Foreign Sovereign Immunities Act, the district court incorrectly concluded that the acts precipitating the tort of the Ethiopian government occurred outside the United States.

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And why was that finding incorrect?

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Or why was that conclusion

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Incorrect.

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Sure, Your Honor.

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Under the test that has been brought to the entire tort rule in Persinger v. Iran, and most recently addressed by this court in Jerez v. Cuba, the test has been articulated, the entire tort is reflected when the precipitating act and the injury both occur in the United States.

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Here, the injury, the invasion of privacy, and the emotional harm attendant to it

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were precipitated by the acts.

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The acts that precipitated that injury were specifically the interception, the wiretap that occurred, and the intrusion, both of which occurred on a U.S.

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computer 27 miles from this courthouse within the United States.

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But it didn't just magically appear on the computer, right?

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Some action had to be taken to put it on that computer.

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Yes, Your Honor.

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An email was sent and ultimately received in the United States by Mr. Cadane.

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And then the act of clicking on an attachment, a Word document that was in the email, which is designed by the software that's used in this case, the FinSpy software, is designed to then install a piece of spyware on the target computer, thereby taking the computer over.

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the act of installation occurred in the United States, and as well as the subsequent interception.

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So if this had been, let's say, an old-fashioned letter bomb that had been mailed from Ethiopia, and then when it was opened by Qadani, he was injured by it, you're saying that

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all of the acts would have occurred in the United States if those had been the facts?

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I would say that all of the precipitating acts, the appearance of the bomb in the United States and its subsequent detonation, of course, there's no precipitating act of the injury.

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So the mailing in Ethiopia would have no legal relevance under tort law?

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It would not, Your Honor, if you look at cases.

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There are numerous cases within this district that have dealt with acts taken, considerable acts even taken outside of the United States.

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For instance, in Letelier versus Chile and in Liu versus China, where you have political assassinations that occur in the United States, there were considerable actions in planning and plotting and putting the entire assassination.

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And putting aside whether to take, well, go ahead.

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Go ahead, go ahead.

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Putting aside whether the Tellier is still good law, there you had an agent of the foreign government physically present in the U.S.

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committing the tortious act, right?

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That's right, Your Honor, but what I would point to first on that sub-point is that the interception itself always has to occur by mechanical means.

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It has to be done by something other than a human.

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Even in old-fashioned wiretapping of a phone line, it is... But assuming that's correct, which probably is.

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I don't see how that solves your problem.

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you still have somebody committing the actual acts that set the, that constituted the beginning of the torts outside the United States.

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Sure, Your Honor.

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Beyond the example of, of Letellier, as Judge Wilkins asked me to set aside for a moment, you can also look to the Court's opinion in Olson v. Mexico, where

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A plane crash, a plane leaving from Mexico ends up crashing in the United States, killing everyone on board, including two prisoners that are being transported.

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The claim is that the pilot was not properly trained in Mexico, and the training was faulty, and the plane wasn't properly maintained.

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All of that occurring in Mexico.

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Notwithstanding those actions, the sovereign was not immune in that case.

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And I think in this case you have software that is acting out, carrying out, it is programmed to take the step.

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But the act of commission of the tort began with an act in Ethiopia, right?

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I wouldn't accept that, Your Honor, respectfully.

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You wouldn't?

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I would not.

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You may not accept it, but it's true.

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Nobody came over here and started that computer process that constituted the ending of the tort.

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They did it in Ethiopia.

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Well, respectfully, Your Honor, the code never gets installed until it reaches the United States and is clicked on and then installed.

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It's installed here.

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How did it get in a position to be installed?

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By being emailed into the country.

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From where?

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We're not certain.

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We believe it's from overseas.

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But it was certainly not from within the United States.

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That's right.

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That's right.

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The interception, Your Honor,

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Whoever did something, whatever the human did, the human did it somewhere outside the United States.

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Sure, just the same as humans did very significant things in Olson, in LaTayette, and in Lou.

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In each of those, the humans did the actual commission of the tort, whether it was a negative claim of the plane or whether it was

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the willful eye did it within the United States.

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Your Honor, the didding and the verb in that sentence, I'd submit that Ethiopia had a machine do its dirty work.

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It programmed a computer that it took over in the United States to do its dirty work.

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And I will accept the court's premise that there's some action of sending that here.

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But the actual dirty work, the computer replaced the lineman that went and put the clips on the, you know, to use the old-fashioned analogy.

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to wiretapping.

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And the computer ran the machine here in the United States in Maryland.

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That's how it works.

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We know that because it is a commercially available piece of software sold only to governments.

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So the documentation for it is available.

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It has to be licensed.

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And they pay to use it.

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So your argument seems to be that the computer program was in effect an agent of Ethiopia.

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So in that sense, it's like the

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the Ninth Circuit case where the assassin from China performs the assassination and they're an agent of China?

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Correct, Judge Wilkins.

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The software acts out the intent.

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It carries out the mission or acts in the agent.

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The same would be true, Your Honor.

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You decided to operate a drone from across the border in Detroit, and you were in Windsor, Ontario, and decided to send a drone into the United States that was programmed to carry out certain tasks in the United States.

[00:09:04] Speaker 02:
How is this different, though, from injecting the hepatitis virus into the Cuban refugee in Cuba?

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He's injured in America, and yet we said it's not occurring entirely in the U.S.

[00:09:22] Speaker 06:
Yes, Your Honor.

[00:09:23] Speaker 06:
The Jerez case, and in the contrast to the hypothetical in Jerez, the court in Jerez, which clearly said, game over, the injury and the act precipitating it, both occurred in Cuba.

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There, a Cuban prisoner, does it... No, they said, no.

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I'm sorry?

[00:09:40] Speaker 02:
We said the injury occurred in the U.S.

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Well, no, the court said that the gentleman had been infected with hepatitis in Cuba, and then, of course, contracted hepatitis in Cuba.

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Those two things, the infection would come, getting the disease, the virus, would be the injury, and the act precipitating it would be the infection, the injection with the virus.

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In contrast to that, the mailing of the virus into the United States

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through the mails, which is analogous to sending a virus through the emails, is one that when it reached, if the court was hypothesizing, if that individual had been in the United States when the package arrived, in that case, that entire tort would occur here.

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He would be injured here.

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He would be infected with the virus, which would be the Precipitating Act.

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And the injury would be contracting the disease.

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In looking at that analogy, the court was grappling with the argument that the prisoner had made.

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He contracted hepatitis long before while a prisoner in Cuba.

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And he tried to argue that

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Never minding that he was infected and injured in Cuba, when he comes to the United States many years later, he still has the virus replicating within his system.

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So his theory of the case was the entire tort could be said to occur here because the infection was growing every day.

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Every day he was suffering the infection.

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The infection was a living organism.

[00:11:14] Speaker 02:
Well, I'm reading.

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Reading from the opinion, Judge Williams says that continued replication of hepatitis C and the cirrhosis describe an ongoing injury that he suffers in the United States as a result of the defendant's acts in Cuba.

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But the law is clear that the entire tort, both the injury and the tort, must occur in the United States.

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So I read that as saying

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Maybe the initial injury occurred in Cuba, but the ongoing injury in the United States, the replication, is not enough.

[00:11:46] Speaker 06:
That's correct, Your Honor.

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Forgive me if I wasn't clear on that.

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It's clear in the court saying the gentleman infected and injured in Cuba, coming here and continuing to suffer,

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doesn't make the sovereign immune.

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Or it does make the sovereign immune, I'm sorry.

[00:12:05] Speaker 02:
Would it have made any difference to your argument if your client had his computer, let's say, in England, where this email, I guess, originally went, and they put the FinSpy on the computer

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while it was in England?

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Yes, Your Honor.

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It would.

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It would.

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And that's exactly the contrast I would draw, is that this is not a case where Mr. Gadane traveled to Ethiopia or to England or anywhere else outside of the United States.

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And his computer was infected there, so it infected, intercepted, and started to spy, complete toward outside the United States.

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Then he travels into the United States.

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Different story.

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I would accept that.

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That would be heres.

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Here, in stark contrast to that, Your Honor – and if I'm – I've got over my – I'm into my rebuttal time, if I may finish.

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The – here, in contrast, the code gets installed in the United States, not Ethiopia, and begins to intercept in the United States, not Ethiopia, and then records conversations of an individual and his entire family, all here within Maryland.

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If those actions, Your Honor, had taken place from a – the actions we're pointing to is sending the email.

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If the email had been sent from a Starbucks outside this courthouse in Washington, D.C., over into Maryland, we would still say that the interception under the wiretap act occurred in – I'm sorry – in the U.S., in Maryland.

[00:13:31] Speaker 06:
We'd still conclude that the intrusion occurred in Maryland.

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Thank you, Your Honor.

[00:13:36] Speaker 02:
I do have one question before you have some time remaining.

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Anyway, if we approach, if we decide the jurisdictional issue first, unlike the district court, do we even have to reach the wiretap act?

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I mean, if we decide the jurisdictional issue against you,

[00:13:55] Speaker 06:
Well, we think there's enough of a record that we could, assuming the court remanded for the district court to consider whether the Wiretap Act applies.

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Otherwise, I think you do need to reach the Wiretap Act.

[00:14:07] Speaker 03:
All right.

[00:14:08] Speaker 03:
If we decide against your jurisdiction, why would we need to reach the Wiretap Act?

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You would not at that point.

[00:14:14] Speaker 03:
OK, thank you.

[00:14:15] Speaker 03:
Thank you.

[00:14:18] Speaker 02:
Mr. Snyder?

[00:14:26] Speaker 01:
May it please the court.

[00:14:27] Speaker 01:
Good morning, Your Honors.

[00:14:28] Speaker 01:
Tom Snyder here on behalf of the Federal Democratic Republic of Ethiopia with me is Mr. Bob Charo.

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Your honor, I want to emphasize that machines do not act.

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Actors act.

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People act.

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And all of the precipitating acts alleged in the complaint here occurred in Ethiopia, occurred outside the United States.

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The allegation is that the Ethiopian government, through its agents in Ethiopia, deployed an email containing the spyware.

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That email was deployed

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based on the allegations, first to London, were an intervening actor, then forwarded the email to the plaintiff here in the United States.

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All of the acts, all of the bodily movements, all of the physical manifestations of the Ethiopian government's will occurred in Ethiopia outside the United States.

[00:15:25] Speaker 04:
But the complaint, which we have to assume its allegations are true for these purposes, says that the program was self-executing, that the Ethiopian government didn't have to take any, you know, specific actions once the attachment was open for the program to download and to begin its work.

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So in that sense,

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It didn't take acts by the Ethiopian government in Ethiopia for the intrusion to manifest itself.

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If we take the complaint as true, right?

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I would say it did, right?

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Because the act was deciding what type

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as alleged, deciding what type of computer spyware to use and the fact that it was automated, right?

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It had to be attached to the email in Ethiopia.

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It had to be transmitted from Ethiopia.

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It had to be programmed to be automated in Ethiopia before it left.

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Again, machines don't act, computer software doesn't act.

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Everything that occurred after the act of deploying the email was a causal effect of the act that occurred in Ethiopia.

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Is the act the deciding, is the act the doing of what's been decided?

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You stated the act was the deciding what's the power to use.

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I would understand it to be the act.

[00:17:01] Speaker 03:
Was the using of this power?

[00:17:04] Speaker 01:
I'm sorry, your honor.

[00:17:05] Speaker 03:
You said, I think you said, the act was deciding what spyware to use.

[00:17:11] Speaker 03:
I question whether that is correct.

[00:17:12] Speaker 03:
I imagine you wasn't the act, the using of the spyware, not the deciding.

[00:17:18] Speaker 01:
It would be the using and the deployment of the software.

[00:17:21] Speaker 01:
Correct.

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And that act of deploying the software resulted in a series of causal effects that ultimately resulted in the injury to the plane.

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So it could not be said that the entire tort was committed within the United States?

[00:17:36] Speaker 01:
Correct.

[00:17:37] Speaker 03:
OK.

[00:17:40] Speaker 01:
I want to just briefly contrast the tort exception, 1605A5, with the commercial activity exception to the FSIA and 1605A2.

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160582 has three prongs to it.

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The third prong provides jurisdiction in U.S.

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courts for actions based upon an act

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outside the territory of the United States in connection with the commercial activity of the foreign state elsewhere, and that act causes a direct effect in the United States.

[00:18:12] Speaker 01:
If we were proceeding under the commercial activity exception, which we're not, that would bring it closer to the facts alleged in this case.

[00:18:20] Speaker 01:
Our position would be that the direct effects prong still wouldn't be met because the direct effect would have occurred in London.

[00:18:29] Speaker 01:
That's where the email was initially targeted.

[00:18:31] Speaker 01:
it would be more of an indirect effect in the United States, but in any event, that direct effect prong is not in the tort exception to immunity.

[00:18:41] Speaker 01:
Congress decided it wanted to keep the tort exception to immunity very narrow, and when it wants to open up,

[00:18:50] Speaker 01:
the exception for personal injury.

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It knows how to do so.

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It did so just last year in the Justice Against Sponsors of Terrorism Act where Congress implemented a new exception to immunity for personal injury caused by international acts of terrorism in the United States

[00:19:10] Speaker 01:
and an act of a foreign state, regardless of where that act occurs.

[00:19:14] Speaker 01:
So in that specific situation, Congress saw it necessary to open up the exception a bit for personal injury in the terrorism context.

[00:19:23] Speaker 01:
So if they want to do that.

[00:19:24] Speaker 04:
So let's suppose Ethiopia, to harass Qadani or Khadim, control the drone or the self-driving car, really,

[00:19:40] Speaker 04:
and cause that car to follow him or crash into his car or the drone to follow him, harass him.

[00:19:47] Speaker 04:
And they were controlling that from Ethiopia.

[00:19:53] Speaker 04:
Wouldn't that tort be entirely inside the US?

[00:19:58] Speaker 01:
No, it would be the same analysis.

[00:20:00] Speaker 01:
The act of controlling the drone or the car was done outside the United States.

[00:20:05] Speaker 01:
So under the entire tort rule, the criteria would not be met.

[00:20:11] Speaker 04:
Well, the machine that is doing the dirty deed, so to speak, is being controlled in the US.

[00:20:23] Speaker 04:
So just because a button is being pushed in Ethiopia, the purpose of pushing that button is to control something in the US.

[00:20:34] Speaker 04:
I mean, the whole precipitation is intended to be in the US.

[00:20:41] Speaker 01:
That's right, but still the machine is not acting.

[00:20:44] Speaker 01:
The machine is functioning at the behest of acts that are occurring outside the United States.

[00:20:52] Speaker 01:
It may be a direct and immediate effect of those acts outside the United States.

[00:20:56] Speaker 01:
It may be almost instantaneous, but it is still an effect of an act that occurred outside the United States.

[00:21:04] Speaker 04:
So if Ethiopia had one of its agents

[00:21:10] Speaker 04:
Operating the drone, you know from a house across the street from kadani or does the self-driving car?

[00:21:20] Speaker 04:
operating then you would say

[00:21:23] Speaker 04:
What would be the result there?

[00:21:26] Speaker 01:
There would be an act in the United States.

[00:21:29] Speaker 01:
Under this example, the person controlling the drone is located in Silver Spring in Washington, DC.

[00:21:35] Speaker 01:
So there is an act.

[00:21:36] Speaker 01:
Then the legal analysis would change and would move to whether the act of that actor can be attributed to the Ethiopian government.

[00:21:45] Speaker 01:
You'd have issues of agency or respond to that superior.

[00:21:49] Speaker 04:
So, the whole thing turns on the fact that a physical presence.

[00:21:54] Speaker 04:
Yes, your honor.

[00:21:56] Speaker 04:
So, even if technology is to the point where an actor can do the exact same thing without the physical presence or even an intervention of a human being,

[00:22:17] Speaker 04:
If they're smart enough to do it that way, as opposed to having to use a person physically present to do it, then they escape liability under the statute.

[00:22:29] Speaker 01:
Under the laws it stands, they escape liability for a private tort action.

[00:22:34] Speaker 01:
There are, of course, other means for addressing those scenarios.

[00:22:38] Speaker 01:
Diplomatic channels, economic and political pressure by the US government, perhaps even criminal prosecutions.

[00:22:46] Speaker 01:
But in terms of private tort suits, in that scenario, there would be no jurisdiction under the Foreign Sovereign Immunities Act.

[00:22:57] Speaker 02:
So do you think all of the millions of federal employees whose records were hacked by the Chinese government would have no cause of action?

[00:23:10] Speaker 01:
If the Chinese did the hacking from outside the United States, there would be no private right of action under the Foreign Sovereign Immunities Act for the U.S.

[00:23:18] Speaker 01:
government officials.

[00:23:21] Speaker 03:
There would be no private right of action for the... It would be a jurisdictional analysis rather than an elemental analysis of the cost of action.

[00:23:30] Speaker 01:
I'm not disagreeing with your result.

[00:23:32] Speaker 03:
I'm suggesting that perhaps the terminology, rather than saying they have no cost of action, it would be borrowed a phrase from Palmer and say they have no cost of action within the jurisdiction of the United States.

[00:23:42] Speaker 01:
You're exactly right, Your Honor.

[00:23:43] Speaker 01:
There would be no subject matter jurisdiction.

[00:23:51] Speaker 01:
Any other questions on the entire torts?

[00:23:55] Speaker 01:
I want to move for a moment to the discretionary function exemption under the tort exception.

[00:24:06] Speaker 01:
Allegedly, and I want to be clear that we're accepting the allegations as made, and the complaint is true for purposes of testing the legal sufficiency of the complaint.

[00:24:15] Speaker 01:
The Ethiopian government hasn't admitted any of the facts, and if anything I inadvertently suggest they do, that's not the case.

[00:24:23] Speaker 01:
The alleged electronic surveillance of foreign nationals outside of a sovereign state

[00:24:31] Speaker 01:
is a discretionary function of a state.

[00:24:34] Speaker 01:
A state has the choice, has the discretion, has the ability to engage in electronic surveillance abroad.

[00:24:42] Speaker 01:
Countries do it.

[00:24:43] Speaker 01:
The United States does it.

[00:24:46] Speaker 01:
There's been a question, a choice of law question.

[00:24:49] Speaker 01:
What law should govern here in terms of the discretion exercised by the, allegedly exercised by the Ethiopian agents?

[00:24:56] Speaker 01:
Our position is that

[00:24:59] Speaker 01:
The law governing the acts of Ethiopian government officials acting in Ethiopia is Ethiopian law.

[00:25:06] Speaker 01:
There have been no allegations made in the complaint that Ethiopian law has been violated.

[00:25:10] Speaker 01:
And we're aware of no Ethiopian law that has been violated here.

[00:25:16] Speaker 01:
Now, the district court grappled with the point that there could have been US laws violated.

[00:25:28] Speaker 01:
through this electronic surveillance, and there we would point to this court's decision in the MacArthur case, where Peru used a building zoned for residential purposes as its naval attache office.

[00:25:43] Speaker 01:
The use of that building may have violated criminal zoning ordinances in the District of Columbia, but this court decided that Peru is engaged in a discretionary function,

[00:25:55] Speaker 01:
And even if those criminal ordinances had been violated, that did not... If we decide, if you would have us decide in the FSIA question, we don't have to reach that, right?

[00:26:08] Speaker 01:
Well, this is part of the FSIA question, but if you decide on the entire tort, you don't need to reach discretionary function or the wiretap to follow up on the last question asked.

[00:26:23] Speaker 04:
To go back for a moment to the entire tort issue, so let's suppose the facts alleged were that Ethiopia had

[00:26:31] Speaker 04:
mailed a present stuffed animal to Doe's house, making it look like it was from a friend or relative.

[00:26:42] Speaker 04:
But the stuffed animal actually had a recording device in it that could audio record and video record that as soon as the package was opened, it turned it on and it operated as long as the battery until the battery died.

[00:27:02] Speaker 05:
Same result?

[00:27:03] Speaker 05:
From where did Ethiopia mail the alleged package?

[00:27:07] Speaker 05:
From Ethiopia.

[00:27:08] Speaker 05:
Same result?

[00:27:10] Speaker 04:
So, even though, I mean, what is the act, the precipitating act there?

[00:27:24] Speaker 01:
The precipitating act would be the act of mailing the package.

[00:27:28] Speaker 01:
Again, an act is a bodily movement.

[00:27:31] Speaker 01:
The model penal code defines it as a bodily movement.

[00:27:33] Speaker 01:
The restatement talks about it as a physical act of an actor.

[00:27:37] Speaker 01:
If someone shoots someone else, the act is the pulling of the trigger.

[00:27:42] Speaker 01:
movement of the bullet and the impingement upon the person is an effect of that act.

[00:27:48] Speaker 01:
So an act really is, it's a bodily movement, it requires an actor, it requires a person, and so you have, that's why there really is a physical presence test in the FSIA, because you have to look at where the actor acted.

[00:27:59] Speaker 01:
You have to look at where the bodily movement occurred that had the causal effect of resulting in the tortious injury.

[00:28:10] Speaker 04:
So,

[00:28:12] Speaker 04:
It doesn't matter in your view whether there was something additional that had to be done after the package was received or after, in what's alleged in the complaint, the software was downloaded or the attachment was opened.

[00:28:39] Speaker 04:
All of that

[00:28:41] Speaker 04:
is really a red herring or or beside the point in your view the only thing that matters is how the software or the package

[00:28:53] Speaker 04:
was sent, or where it was sent from.

[00:28:56] Speaker 01:
Yes, what matters in our view is where the actor acted, where the individual set into motion the causal effects that resulted in the injury, and the automation, the computer programming, doing whatever it did, turning on, communicating with the relay system, that was all automation.

[00:29:16] Speaker 01:
Those are all effects.

[00:29:18] Speaker 01:
Those are all something done by something that's inanimate, that's not a human.

[00:29:23] Speaker 01:
And it really does go back to the deployment of the software, right?

[00:29:29] Speaker 01:
Allegedly, Ethiopia didn't send a random attachment.

[00:29:32] Speaker 01:
They sent an attachment that they knew would have these automated functions and would have functionality that resulted in the intended result.

[00:29:43] Speaker 01:
So those are all causal effects of the act that occurred allegedly in Ethiopia.

[00:29:53] Speaker 01:
Any further questions, Your Honors?

[00:29:55] Speaker 02:
All right, and your time is up.

[00:29:57] Speaker 01:
Thank you.

[00:29:57] Speaker 02:
Thank you.

[00:29:59] Speaker 02:
How much time does Mr. Martinez have?

[00:30:03] Speaker 02:
Okay, why don't you take two, if you need it.

[00:30:10] Speaker 06:
Your Honors, there's two central points upon which Ethiopia seems to have rested its argument.

[00:30:15] Speaker 06:
One, the proposition that machines do not act.

[00:30:19] Speaker 06:
That simply is belied by the facts and the reality of the modern world.

[00:30:24] Speaker 06:
Cars drive themselves, and they can be taken over remotely, and they can be programmed from somewhere else to drive off a bridge.

[00:30:32] Speaker 06:
ATMs have replaced tellers.

[00:30:35] Speaker 06:
Pacemakers can regulate the beat of the heart.

[00:30:37] Speaker 06:
These machines certainly are programmed with software to act.

[00:30:41] Speaker 06:
The position that Ethiopia is taking here is, simply put, to allow a sovereign to use a machine as its henchmen.

[00:30:49] Speaker 06:
We can envision a scenario where you can just go along the border of the United States on either border and send across software agents by any foreign states actor, any diplomat across the border that wants to carry out an act here.

[00:31:02] Speaker 03:
that foreign sovereigns are immune from most of the things that they do.

[00:31:07] Speaker 03:
So is it really surprising that the position that the person representing the Sovereign is thinking is that the Sovereign is immune?

[00:31:14] Speaker 03:
That doesn't sound exactly shocking, does it?

[00:31:17] Speaker 06:
No, Your Honor.

[00:31:18] Speaker 06:
The general proposition, of course, is accepted and is not shocking.

[00:31:22] Speaker 06:
But in point of fact, Congress itself, in establishing the jurisdiction, i.e.

[00:31:26] Speaker 06:
carving out the immunity, drew the line of where sovereigns cannot... We drew that line.

[00:31:31] Speaker 03:
It has to be met by an entire court.

[00:31:35] Speaker 03:
Right.

[00:31:36] Speaker 03:
Right.

[00:31:36] Speaker 03:
I'm not sure why your argument

[00:31:40] Speaker 03:
would bear much weight by saying, well, if we accept the position of the sovereign, then the sovereign is immune.

[00:31:46] Speaker 06:
Well, but it's wrong under the case law of this district, the circuit, under the entire tort rule.

[00:31:53] Speaker 06:
Because the injury no doubt occurred here, the listening in and the spying and collecting information.

[00:31:58] Speaker 06:
And the acts precipitating it, that's the test, occurred here.

[00:32:01] Speaker 06:
The computer was intercepted by software, by a machine that was recording.

[00:32:10] Speaker 06:
And finally, I'll add, if I might finish the point, Your Honor, there is no physical presence requirement.

[00:32:17] Speaker 06:
It's the other hook to their argument.

[00:32:20] Speaker 06:
Congress specifically considered the European Convention with which explicitly included expressly a physical present must be present to win language in the statute.

[00:32:34] Speaker 06:
Congress did not do that in the Foreign Sovereign Immunity Act.

[00:32:36] Speaker 06:
There's no language in there that says the actor has to be physically present or their machine can't take its place.

[00:32:43] Speaker 02:
Thank you.

[00:32:45] Speaker 02:
But when you see from the legislative history, the whole reason this was put in was to be able to sue people, I mean, diplomats who were driving drunk here.

[00:32:55] Speaker 02:
That certainly requires physical presence.

[00:32:58] Speaker 06:
That does, but that wasn't the only limit on the torts.

[00:33:01] Speaker 06:
The legislative history, which was laid out very nicely by Judge Bork and the person to your opinion, even in the passage that uses that paradigmatic example of traffic accidents, goes on to say, and other torts.

[00:33:13] Speaker 06:
And beyond that, the rest of the history is quite clear.

[00:33:15] Speaker 06:
It was not intended to be limited to just one class of torts, and they certainly didn't say that in the statute.

[00:33:21] Speaker 02:
All right.

[00:33:22] Speaker 02:
Thank you.

[00:33:22] Speaker 06:
Thank you, Your Honors.