[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).  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, the Court should not have used a rule of statutory interpretation 
to gut the ATS.  Rather, leave it to Congress: if lawmakers have a 
problem with the Founding Era statute's extraterritorial application, 
then it should have the guts to repeal it.

best, jwp

Jillian C. York 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 
> <mailto: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 <mailto: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 <http://averysmallbird.com> | @cda
>         | Washington, D.C.
>
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>
>     -- 
>     Policy Counsel | Access
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