More and more often, the Foreign Sovereign Immunities Act (FSIA) has protected cyberattack-conducting state actors and their cybersecurity contractors from legal liability and suits brought by victims seeking redress in US courts.
Adam Silow argues that it is time for foreign sovereign immunity to receive an update for the digital era. State-sponsored cyberattacks and their use of cybersecurity contractors are increasing, particularly affecting human rights activists and large companies with key data and trade secrets. The US government’s responses, namely, diplomacy, sanctions, or issuing “speaking indictments” by prosecutors have been inadequate, and statutory language of the FSIA does not clearly allow liability for cyberattacks, even under the new terrorism amendments.
Some experts propose merely amending the language to include liability for all cyberattacks, which Silow argues may inadvertently allow liability for legitimate state action. Instead, Silow concludes that more targeted legislation should protect specific victims of cyberattacks, namely human rights activists and targets of trade secrets, and allow those victims to legally overcome foreign sovereign immunity in US courts.
In an era where “economic security is national security,” China’s growing economic power presents America with a distinct challenge.
Will Moreland looks to America’s response to suggest that the Biden administration is returning to an earlier “Rooseveltian” conception of national security—one which appreciates that a healthy American middle class is essential to defending democracy.
Moreland finds that under that more expansive vision of national security, the Committee on Foreign Investment in the United States (“CFIUS”) is at risk of overuse. Because Moreland fears a more cumbersome and expansive investment review is likely to harm more than help the Biden administration’s foreign policy, he proposes a narrower approach.
This narrower CFIUS approach stands in contrast to recent calls for expansive investment review—and Moreland concludes it equips today’s policy makers with the right tool for the right problem.
As conflicts continue to be fought in countries far from the United States, it is of increasing importance that our government have the ability to train and equip foreign personnel to ensure global security. To this end, Congress enacted Section 1202 of the 2018 National Defense Authorization Act, enabling the Department of Defense to spend up to $10 million annually to support foreign forces engaged in ongoing and authorized irregular warfare operations.
In their article, Rich, Johnson, and Shirk discuss the significant limitations of this authority, chiefly its definition of irregular warfare as “competition between state and non-state actors short of traditional armed conflict,” and argue that Section 1202 is critical in allowing Special Operations Forces to counteract the aggressive actions of other nation-states through foreign personnel, while emphasizing the lack of specific authority which would allow SOF to train and equip an irregular force during a traditional armed conflict against another nation-state.
Rich, Johnson, and Shirk conclude that, while this gap may be filled through covert funds or existing emergency funds, there is still value in enacting specific authorities prior to an emergency.