Doe v. Fed. Democratic Republic of Eth., Civil Action No. 14-372 (RDM)

• Decision Date: 24 May 2016
• Docket Number: Civil Action No. 14-372 (RDM)
• Court: U.S. District Court — District of Columbia
• Parties: John Doe, a.k.a. Kidane, Plaintiff, v. Federal Democratic Republic of Ethiopia, Defendant.

189 F.Supp.3d 6

John Doe, a.k.a. Kidane, Plaintiff,

v.Federal Democratic Republic of Ethiopia, Defendant.

Civil Action No. 14-372 (RDM)

United States District Court, District of Columbia.

Signed May 24, 2016

Nathan Daniel Cardozo, Cindy A. Cohn, Sophia S. Cope, Electronic Frontier Foundation, Scott A. Gilmore, San Francisco, CA, John Kelly Harting, Richard M. Martinez, Samuel L. Walling, Robins Kaplan LLP, Minneapolis, MN, for Plaintiff.

Robert Phillip Charrow, Thomas R. Snider, Greenberg Traurig LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

The central question presented in this case is whether federal law permits the plaintiff, a U.S. citizen born in Ethiopia who remains active in the Ethiopian diaspora, to maintain suit in this Court against the Federal Democratic Republic of Ethiopia for its alleged surreptitious monitoring and recording of his (and his family's) computer activities and communications in SilverSpring, Maryland. Plaintiff claims that, in doing so, Ethiopia violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Wiretap Act"), 18 U.S.C. § 2510 et seq. , and committed the common law tort of "intrusion upon seclusion" in violation of Maryland law. Ethiopia has appeared, but moves to dismiss on numerous grounds.

As explained below, the Court concludes that the Wiretap Act does not create a private cause of action against a foreign state and that the plaintiff's state-law tort claim is barred by the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 –1611. The Court, accordingly, GRANTS Ethiopia's motion and dismisses the amended complaint.

I. BACKGROUND

For present purposes, the Court accepts at true the allegations of the amended complaint, along with the incorporated material.¹ See Price v. Socialist People's Libyan Arab Jamahiriya , 294 F.3d 82, 93 (D.C.Cir.2002) (when reviewing "a plaintiff's unchallenged factual allegations to determine whether they are sufficient to deprive a foreign state defendant of sovereign immunity, [the court must] assume those allegations to be true" (citations omitted)); Gordon v. United States Capitol Police , 778 F.3d 158, 163–64 (D.C.Cir.2015) (under Federal Rule of Civil Procedure 12(b)(6), the court "must accept the complaint's allegations as true and draw all reasonable inferences in favor of the non-moving party").

Plaintiff John Doe, who uses the pseudonym "Kidane" in connection with his political activities, is a U.S. citizen who was born in Ethiopia and has lived in the United States since obtaining asylum in the early 1990s. Dkt. 1-1 ¶ 3; Dkt. 26 at ¶¶ 3, 19, 20. At all relevant times, Kidane resided in Silver Spring, Maryland, where he has remained active "within the Ethiopian Diaspora." Dkt. 26 ¶¶ 19, 20. He asserts that "the Ethiopian government monitors political dissidents at home and abroad ... through the use of electronic surveillance," id. ¶ 25, and that he was subjected to such surveillance by means of a program secretly installed on his personal computer, controlled by the Ethiopian government or its agents, and used by them to monitor and record his computer activities and communications. See id. ¶¶ 3, 5, 9.

According to the complaint, in late 2012 or early 2013, Kidane's personal computer, located at his home in Maryland, "bec[a]me infected with clandestine computer programs known as FinSpy." Id. ¶ 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 allegedly "sold exclusively to government agencies and is not available to the general public." Id. ; see also id. , Ex. A (describing the FinSpy product). Kidane attributes the FinSpy infection of his computer to an email "sent by or on behalf of Ethiopia that was thereafter forwarded to" him by a third party. Id. ¶ 5. The complaint does not state where the original third-party recipient was located; Ethiopia argues, however, that the content of the email, which is appended to the complaint, suggests that the original recipient may have resided in London. See id. , Ex. C (translation stating, in part, "[y]ou took your family to London ...."). In any event, Kidane does not allege or argue that Ethiopia sent the email directly to him or to anyone else located in the United States.

The email contained a Trojan Horse attachment that "trick[ed]" Kidane into opening it, Dkt. 26 ¶¶ 38, 41, "caus[ing] a clandestine client program to be surreptitiously downloaded onto his computer," id. ¶ 5, and resulting in the installation of the FinSpy software, id. The FinSpy software allegedly "took what amounts to complete control over the operating system" of his computer. Id. According to the complaint, FinSpy contains "modules" for "extracting saved passwords from more than 20 different" programs, "for ... recording Internet telephone calls, text messages, and file transfers transmitted through the Skype application," "for covertly recording audio from a computer's microphone even when no Skype calls are taking place," "for recording every keystroke on the computer," and "for recording a picture of the contents displayed on a computer's screen." Id. ¶ 36–37.

Kidane alleges that once FinSpy infected his computer, it "began contemporaneously recording some, if not all, of the activities undertaken by users of the computer, including [Kidane] and members of his family." Id. He alleges that it "surreptitiously intercepted and contemporaneously recorded dozens of [his] private Skype Internet phone calls, recorded portions or complete copies of a number of [his] emails," and copied a web search conducted by his son for a ninth-grade research assignment. Id. ¶ 3. He further avers that evidence of these activities was found in various "FinSpy trace files" on his computer. See id. ¶¶ 55–60, 64–77. These trace files included, for example, "files consistent with FinSpy's naming convention [that] contain portions or complete copies of [Kidane's] private and highly confidential Skype conversations." Id. ¶ 69.

Kidane further alleges that the FinSpy software installed on his computer communicated with a computer server located in Ethiopia. Id. ¶ 10. As explained in the complaint and attached exhibits, computers that have been infected with the FinSpy software typically communicate with a designated "FinSpy Master" server via a "FinSpy Relay." Id. ¶¶ 35, 43–51, Ex. A. The "FinSpy Master" determines whether, under the applicable FinSpy license terms, a given copy of the software will be activated. Id. ¶¶ 44–45, Ex. A. Once the software is activated, the FinSpy Master "sends commands to [the] infected device[ ] and receives gathered information" from that device. Id. ¶ 35. According to a report attached to the complaint, "a recently acquired [FinSpy] malware sample" shows that the malware has used "images of members of the Ethiopian opposition group, Ginbot 7, as bait, and that it has communicated with a FinSpy Command & Control server in Ethiopia." Dkt. 26, Ex. B. In particular, the malware communications "can be found in [an] address block run by Ethio Telecom, Ethiopia's state owned telecommunications provider." Id. Kidane alleges that "the FinSpy Relay and FinSpy Master servers with which [his] computer in Maryland was controlled are located inside Ethiopia and controlled by Defendant Ethiopia," id. ¶ 85, and that the FinSpy installation "took instructions from a FinSpy relay controlled by Defendant Ethiopia," id. ¶ 84. He further alleges that FinSpy, but not all of the distinct trace files, "appears to have been removed" from his computer just five days after the publication of a report that disclosed "the technical details of the FinSpy Relay" used by Ethiopia. Id. ¶ 77.

The complaint contains two counts: a claim under the Wiretap Act, alleging that Ethiopia illicitly intercepted Kidane's Skype calls and "other data," id. ¶¶ 92–100, and a claim under Maryland tort law for intrusion upon seclusion, alleging that Ethiopia unlawfully monitored and recorded Kidane's and his family's private computer activities, including Skype calls, emails, and web searches, id. ¶¶ 101–105. Citing a fear of retaliation against himself and his family members in the United States and Ethiopia, Kidane moved for leave to proceed pseudonymously—as either John Doe or using the name "Kidane." See Dkt. 1-1 at 11–13. The Court granted that motion. See Dkt. 2.

Ethiopia moved to dismiss the complaint, see Dkt. 27, and, after the matter was fully briefed, the Court held oral argument on Ethiopia's motion. In light of the fact that the case presents "substantial issues relating to the interpretation and application of the Foreign Sovereign Immunities Act's non-commercial tort exception, 28 U.S.C. § 1605(a)(5), including the discretionary function exception and the ‘entire tort’ rule," the Court then provided the United States with the opportunity to file a brief. See Dkt. 35. The United States responded that it was "actively considering whether to file a Statement of Interest as permitted by 28 U.S.C. § 517," and requested additional time to "complete its deliberations," and, if appropriate, to file a Statement of Interest. Dkt. 37. The United States ultimately declined, however, to file a brief at this stage of the proceeding. Dkt. 38.

II. ANALYSIS

Ethiopia moves to dismiss on multiple grounds, contending both that this Court lacks jurisdiction under the FSIA and that Kidane fails to state a claim under the Wiretap Act because the Act does not provide a cause of action against a foreign state. See Dkt. 27. In the ordinary course, the Court would start with the jurisdictional question, because jurisdiction is a precondition to the Court's "power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Env't ,...