United States Court of Appeals, District of Columbia Circuit
February 2, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00372)
Richard M. Martinez argued the cause for the appellant.
Samuel L. Walling, Nathan Cardozo, and Cindy Cohn were with
him on brief. Scott A. Gilmore entered an appearance.
Kaye was on brief for the amici curiae United Nations Human
Rights Experts in support of the plaintiff-appellant.
R. Snider argued the cause for the appellee. Robert P.
Charrow and Laura Metcoff Klaus were with him on brief.
Before: Henderson and Wilkins, Circuit Judges, and Sentelle,
Senior Circuit Judge.
Circuit Judge Henderson.
LeCraft Henderson, Circuit Judge: Plaintiff John
Doe-proceeding pseudonymously as "Kidane"-claims he
was tricked into downloading a computer program. The program
allegedly enabled the Federal Democratic Republic of Ethiopia
(Ethiopia) to spy on him from abroad. He wants to sue the
Republic of Ethiopia. But foreign states are immune from suit
unless an exception to the Foreign Sovereign Immunities Act
(FSIA) applies. Kidane invokes the FSIA's
exception for noncommercial torts. We conclude his reliance
is misplaced. The noncommercial-tort exception abrogates
sovereign immunity for a tort occurring entirely in
the United States. Kidane, by contrast, alleges a
transnational tort. We therefore affirm the district
court's dismissal for lack of subject matter
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.
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. 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. See Am. Compl. Ex. C ("You took your
family to London . . . ."). Once opened, the attachment
allegedly infected Kidane's computer with a
"clandestine . . . program known as FinSpy." Am.
Compl. ¶ 4. 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." Id. ¶ 6. It is
"sold exclusively to government agencies."
Id. 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. Id. ¶ 5.
It then allegedly communicated with a server in Ethiopia.
filed suit against Ethiopia, pressing two claims. First,
Kidane sought relief under the Wiretap Act, 18 U.S.C.
§§ 2510 et seq., which prohibits "any
person [from] intentionally intercept[ing] . . . any wire,
oral, or electronic communication[, ]" id.
§ 2511(1). Second, Kidane alleged Ethiopia committed the
Maryland common law tort of intrusion upon seclusion.
district court dismissed Kidane's lawsuit in its
entirety. Doe v. Fed. Democratic Republic of
Ethiopia, 189 F.Supp.3d 6, 28 (D.D.C. 2016). It first
concluded that the relevant Wiretap Act provision could not
be enforced via private lawsuit against a foreign
government. Id. at 12-15.
dismissed Kidane's state-law claim for lack of subject
matter jurisdiction. Id. at 15-28. The district
court observed that the FSIA grants all foreign states
immunity from suit in American courts, subject to limited
enumerated exceptions. Id. at 16. Kidane invoked
only one-the noncommercial-tort exception. Id. The
district court found that exception ...