## Facts

- John Doe (an Ethiopian-born U.S. citizen living in Maryland) engaged in advocacy concerning corruption and human rights in Ethiopia.
- In late 2012 or early 2013, Doe opened an email attachment allegedly sent by or on behalf of Ethiopia, infecting his home computer with “FinSpy” malware.
- Doe alleged FinSpy covertly recorded his and his family’s computer activity in Maryland and transmitted the data to a server located in Ethiopia.
- Doe sued Ethiopia seeking money damages under the federal Wiretap Act and Maryland common-law intrusion upon seclusion.
- Ethiopia moved to dismiss under the Foreign Sovereign Immunities Act (FSIA), asserting sovereign immunity.
- Doe invoked the FSIA noncommercial tort exception, asserting the tort occurred in the United States.

## Issues

1. Whether the FSIA noncommercial tort exception, 28 U.S.C. § 1605(a)(5), abrogates sovereign immunity for alleged spyware surveillance where domestic injury is alleged but key conduct occurs abroad.
2. Whether a “tort occurring entirely in the United States” requires that all elements of the tort—including conduct as well as injury—occur domestically.
3. Whether dismissal for lack of FSIA jurisdiction bars both common-law tort claims and statutory claims seeking money damages.

## Decision

- The D.C. Circuit affirmed dismissal for lack of subject matter jurisdiction.
- The court held the FSIA noncommercial tort exception applies only to a tort occurring entirely in the United States.
- Doe alleged a transnational tort: the malware was allegedly deployed from abroad and communicated data to a server in Ethiopia.
- Because at least part of the tortious conduct occurred outside the United States, Ethiopia retained sovereign immunity and the court lacked jurisdiction.
- The jurisdictional defect required dismissal of both the intrusion-upon-seclusion claim and the Wiretap Act claim.

## Legal Principles

- Under the FSIA, foreign states are immune from suit in U.S. courts unless a statutory exception applies.
- The FSIA noncommercial tort exception requires a tort to occur entirely in the United States; domestic injury alone does not suffice when material tortious conduct occurs abroad.
- When FSIA immunity is not abrogated, federal courts lack subject matter jurisdiction “in toto,” requiring dismissal of all claims against the foreign state.

## Conclusion

The court held that alleged state-sponsored spyware surveillance involving foreign deployment and foreign data exfiltration is a transnational tort outside the FSIA noncommercial tort exception, leaving the foreign sovereign immune and requiring dismissal for lack of jurisdiction.


Doe v. Fed. Democratic Republic of Eth., 851 F.3d 7 (D.C. Cir. 2017)