Last Thursday, building upon my May 22^nd remarks at the 30^th Annual National Space Symposium RFI panel sponsored by Secure World Foundation, I suggested a possible concrete enforcement tool to help stop intentional radio frequency interference. Specifically, I recommended that the US and the EU give strong consideration to making compliance with ITU prohibitions on harmful interference and cooperation with ITU and other processes to resolve instances of RFI an eligibility criteria for developing countries to receive trade preferences under the Generalized System of Preferences. Another potential (new, “outside-the-box”) concrete tool that I mentioned in Colorado Springs, one that I think is likely to be less successful and more problematic but still worth analysis, is suit in domestic courts against the foreign country (or foreign country-owned operator or agency) engaged in intentional RFI impacting satellites.

Option #2: Suit against Foreign Nation (or Foreign Nation-owned operator or agency) engaged in intentional RFI under the FSIA in the US Courts (or analogous statutes in European countries)

Suing a foreign nation in another country’s domestic court system raises issues of foreign sovereign immunity. International law no longer requires that absolute immunity be given to foreign sovereigns in such situations, but rather the “restrictive theory” of immunity – one that acknowledges exceptions to immunity, particularly for commercial activity, is now all that is required by customary international law. In the US, suit of a foreign sovereign is governed by the Foreign Sovereign Immunity Act (FSIA) and it is that statute that will provide the framework of our analysis. Many countries have similar statutes, although with different or lesser exceptions to immunity present.

Would a suit against a foreign nation in US courts for intentional RFI with a satellite be possible? Well, we should perhaps first begin by saying anyone thinking of attempting such a suit would have to consider any “out-of-court” retaliatory penalties that might be brought to bear by the foreign nation upset with the filing of such a suit. Any entity thinking of such a suit would also need to consider whether they would want to reveal “methods” of establishing the intentional RFI was taking place as part of the necessary evidence to prove their case.

With those preliminary considerations acknowledged, a suit against a foreign sovereign in US courts necessarily has one turn first to the FSIA. The FSIA provides the sole basis of jurisdiction (both personal and subject matter) over of foreign state in US courts; the establishment of jurisdiction is linked to finding an exception to immunity. Foreign states are presumed immune unless the statute provides an exception to immunity. The definition of foreign state includes agencies and instrumentalities of the foreign state. The exception that is most widely-used is the commercial activities exception (Sec. 1605(a)(2)).

The commercial activities exception, in the third clause, allows for an exception to immunity “in which the action is based upon … an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” Intentional RFI by the foreign nation would take place outside the territory of the US. However, several hurdles also need to be cleared. First, is RFI done “in connection with a commercial activity of the foreign state”? Second, does the RFI cause a “direct effect” in the United States? As regards commercial activity, the statute, although not defining the terms, does instruct courts to look to the nature not the purpose of the activity. The US Supreme Court has defined commercial activity to be the type of activity by which a private player in the market engages in trade, traffic and commerce. Thus, it should not matter whether RFI is done for the purpose of inhibiting information flow to citizenry or to quell potential democratic uprisings. It is the nature of the activity that matters. If one narrowly defines the activity as simply RFI, then RFI does not seem to be the type of activity by which private (satellite) operators engage in trade, traffic, and commerce. But if one defines the activity more generally as temporary negative actions to defeat a competitor’s market share or reputation for reliability, that could push a court closer to finding the nature of the activity to be commercial.

For those familiar with key US Supreme Court cases in the area, think back to the Nelson case, where the Court found beating and imprisonment of an employee to not be commercial activity. However, if the activity were argued to be whistleblower retaliation – Nelson had reported safety violations at the hospital he worked at — it might have come closer to a commercial activity.

Additionally, the third clause of the FSIA commercial activities exception refers to an action “in connection with a commercial activity” and thus provides a bit of flexibility for what might be captured by the exception.  As for direct effect, the question is whether a loss of money flowing into a US bank account and/or lost profits to a US corporation are sufficient to meet that condition. Some lower court opinions suggest at least one of those may be sufficient. In sum, suit under the FSIA commercial activity exception to establish jurisdiction appears difficult but not necessarily impossible where a foreign state-owned operator or one of its agencies is engaging in RFI. What is impossible is a claim against a foreign nation’s regulatory agency for refusing to “go after” a private operator engaging in intentional RFI because the foreign nation is then acting clearly in a regulatory (non-commercial) nature.

Additional hurdles might need to be cleared and additional complexities might arise once jurisdiction is established. ITU regulations do not create private rights of action in the United States according to court decisions and thus they cannot form the basis for a private right of action. The tort exception limits the type of claims that can be made – so would have to find an appropriate tort claim covering the activity. Questions arise as to which nation’s tort laws should be applied after undertaking conflict of laws analysis. Further, it is possible that arguments might be made that federal law preempts state tort law claims for RFI in space. And, of course, enforcing such a judgment could raise additional complexities under the FSIA. The US Executive Branch is also likely to file an amicus brief in opposition as the US government would not want to be exposed to suit in foreign court. (Remember a key benefit of proceeding with Option #1 – eligibility criteria for trade preference status by developing countries – is those obligations are one-way and in no way implicate US or European military actions – see prior blog post).

In sum, there are enough hurdles to be cleared and potential pitfalls with the FSIA option that any litigant would need to be satisfied that filing an even unsuccessful suit is still a useful addition to the “name and shame” approach to stopping intentional RFI with satellites.

You can find more detailed analysis in my forthcoming article.

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