Friday, November 26, 2021

S 3241 Introduced – HACT Act

Last Week Sen Kennedy (R,LA) introduced S 3241, the Homeland And Cyber Threat (HACT) Act. The bill would remove foreign state immunity from lawsuits brought for injuries incurred from computer intrusions by a foreign state. The bill is nearly identical to HR 1607 of the same title that was introduced in the House back in March and has not seen any legislative activity since it was introduced.

The only difference in the two bills is that the Senate version corrects a critical legislative oversight in the House version by inserting a subsection (b), Technical and Conforming Amendment. That subsection would amend the ‘table of sections’ for 28 USC Chapter 97 to include the section added by this bill. The absence of this subsection in the House bill calls into question the level of professionalism in the crafters of the bill in the House.

Kennedy is a member of the Senate Judiciary Committee to which this bill was assigned for consideration. He should have the influence necessary to see this bill considered by the Committee. Again, as with HR 1607, I do not believe that the bill will be considered as it directly impacts sovereign immunity, a touchy subject. I believe that we would have to see a serious cyberattack on private sector systems that has a clear attribution back to a State actor for Congress to act on either of these bills. Introducing bills such as this, however, is a good political move in many constituencies.

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