Sunday, June 10, 2012

HR 5904 Introduced – Terrorism Liability

Last week Rep. Lungren (R,CA) introduced HR 5904, the  Justice Against Sponsors of Terrorism Act, a bill that would make it easier for victims of terrorist attacks against interests of the United States to seek civil liability claims against “persons, entities and foreign states, wherever acting and wherever they may be found, which have provided material support or resources, directly or indirectly, to foreign organizations that engage in terrorist activities against the United States” {§2(b)}.

The bill would add language to 28 USC 1605(a) that would expand the definition of exceptions to the claim of foreign sovereign immunity to specifically include “any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act” {§3(a)(1)}.

Does Not Address Cyber-Terrorism

It doesn’t seem that the above wording would include cyber-attacks against critical infrastructure in the United States. Since the bill specifically limits itself {§3(a)(1)} to attacks within the United States, the definition of ‘terrorism’ that would be applied comes from 18 USC §2331(5) that describes ‘domestic terrorism’ as activities that “involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State”.

For example, while blowing up a chemical plant is clearly ‘dangerous to human life’ the ‘act’ of manipulating computer code is less clearly so. It could be argued that the intention was to disrupt the operation of the facility, more an act of civil disobedience than terrorism, and that the resulting actions ‘dangerous to human life’ arose out of poor design of the facility, the control system or associated safety systems.

Furthermore, I don’t know (and I am clearly not a lawyer, so this may just be the result of my ignorance) of any current law that specifically makes it illegal to attack an industrial control system. That would remove the second requirement for making such an attack a covered terrorist incident under the provisions of this proposed law.

Expands Statute of Limitations

Section 7 of this bill would extend the statute of limitations for civil actions regarding terrorist attacks from four years to fifteen years. The bill would apply that new standard to “all proceedings pending in any form on the date of the enactment of this Act” {§7(b)}. It would even allow these provisions to apply to previously dismissed actions if they would have met these new statute of limitations standards.

Since this bill only affects civil actions, not criminal liability, I suppose that the prohibitions against ex post facto legislation do not apply.

Moving Forward

Since Mr. Lungren is an influential member of the Judiciary Committee, I suppose that we might expect some sort of prompt action by that Committee on this bill. Once they report it to the Full House, I don’t see any strong impediments to its passage other than the constraints of time and election year politics.

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