[liberationtech] Kiobel Ruling on Alien Tort Statute and Censorship Tech

[jon penney]

Agreed.

This is a bad decision. The ATS is, as Chip wrote earlier, a jurisdictional
statute.  And, quite frankly, its text and historical context strongly
suggests it captures "extraterritoriality" activities.

In 1789, the United States was a young republic, attempting to normalize
international relations.  The ATS was likely enacted with that aim in mind,
that is, to allow foreign plaintiffs— such as merchants and ambassadors—
the right to sue Americans in U.S. courts for certain international law
violations causing injury to person or property (though defendants are not
limited by the ATS to American citizens).  Such "violations" at the time
would have been understood to include extraterritorial acts, like violating
neutrality on the high seas and piracy.  Under the "law of nations" if you
did not provide such domestic redress (ie with a statute like ATS) then the
state itself would be liable (and would also cause friction with other
states).  Presumably today, foreign subsidiaries of American corporations--
which under the Kiobel majority's reasoning would not overcome the
presumption against extra-territorial application-- likewise could cause
friction for the U.S. among foreign states, for acts abroad committed in
violation of international legal norms.

IMHO, in light of its text and history, the Court should not have used a
rule of statutory interpretation to gut the ATS, when Congress is free to
legislate.  If lawmakers have a problem with the Founding Era statute's
extraterritorial application, they should have the guts to repeal or amend
it.

best, jwp


On Thu, Apr 18, 2013 at 1:33 PM, Jillian C. York <jilliancyork at gmail.com>wrote:

> That's a rather odd position for someone who works for a human rights
> group to take.
>
>
> On Wed, Apr 17, 2013 at 2:26 PM, Peter Micek <peter at accessnow.org> wrote:
>
>> Hey Collin,
>>
>> It looks like the Supreme Court set a very high bar to overcoming the
>> presumption of territoriality in ATS cases.
>>
>> That US laws should apply only to traditional spaces of US jurisdiction
>> is presumed unless congress specifically says otherwise. Since the
>> Filartiga v Peña case in 1989, the US has experimented with applying the
>> ATS (passed as part of the *1789* Judiciary Act), to torts committed
>> elsewhere.
>>
>> The ATS and other domestic attempts at asserting universal jurisdiction,
>> like Spain has experimented with, highlight the need for some adjudication
>> where in cases none is likely, or feasible. Spain, for example, recently
>> used it to target Pinochet and those responsible for El Salvador's
>> massacres in the 1980s.
>>
>> Courts asserting universal jurisdiction claim the right to judge crimes
>> regardless of where they were committed. See
>> http://www.globalpolicy.org/international-justice/universal-jurisdiction-6-31.html
>>  Some international treaties actually mandate that states account for
>> egregious rights abuses when they are not brought to justice domestically.
>>
>> This post highlights some legal and policy solutions in the U.S. that go
>> survive today's ruling:
>> http://opiniojuris.org/2013/04/17/human-rights-will-survive-kiobel
>>
>> The Foreign Corrupt Practices Act, the proposed State Department
>> Reporting Requirements on US companies operating in Burma, and other
>> measures are taking the actions of US corps abroad seriously. And the SEC
>> has been able to seize funds of bad actors.
>>
>> There are strong reasons to oppose universal jurisdiction here. Domestic
>> courts are not necessarily the best equipped to issue swift justice in huge
>> transnational cases. The time and cost on ordinary plaintiffs are
>> prohibitive (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1953190).
>>
>> The International Criminal Court has assumed jurisdiction over four
>> egregious crimes committed worldwide. Corporations don't face any
>> transnational court like that. But the process of creating norms (and then
>> international law) will continue without universal jurisdiction, and
>> companies probably fear angry investors more than many national courts.
>>
>> Plus, look at the flip side -- do we want torts occurring between US
>> entities and citizens, on US soil, adjudicated in foreign domestic courts?
>> It's not a perfect analogy, but not likely.
>>
>> Happy to continue the conversation,
>> Peter
>>
>>
>>
>> On Wed, Apr 17, 2013 at 4:05 PM, Collin Anderson <
>> collin at averysmallbird.com> wrote:
>>
>>> Libtech,
>>>
>>>
>>> Today the Supreme Court handed down a ruling that seriously limited the
>>> scope of the Alien Tort Statute on human rights cases. ATS was the grounds
>>> that Iranians attempted to sue Nokia Siemens Networks for their sale of
>>> lawful intercept, claims of liabilities for selling surveillance to China,
>>> and the Turkcell v. MTN case was waiting on the decision[3], so this should
>>> matter to many on the list. I was hoping that perhaps we could pull out
>>> some comments from our colleagues in CSR and legal communities.
>>>
>>> Cordially,
>>> Collin
>>>
>>> [1]
>>> http://www.dw.de/nokia-siemens-lawsuit-dropped-by-iranian-plaintiffs/a-6240017
>>> [2] http://www.economist.com/node/18986482
>>> [3]
>>> http://blogs.wsj.com/corruption-currents/2012/10/12/judge-stays-turkcell-lawsuit-citing-supreme-court-case/
>>>  --
>>> *Collin David Anderson*
>>> averysmallbird.com | @cda | Washington, D.C.
>>>
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>>
>>
>>
>> --
>> Policy Counsel | Access
>> www.accessnow.org
>> www.rightscon.org
>> Ph: +1-646-255-4963 | S: peter-r-m | PGP: 22510994
>>
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>
>
>
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