Review - HR 2745 Introduced – HACT Act

Last month, Rep Bergman (R,MI) introduced H 2745, 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. There is no funding authorized in this bill.

Moving Forward

Bergman is not a member of the House Judiciary Committee to which this bill was assigned for consideration, but six {Rep Neguse (D,CO), Rep Gaetz (R,FL), Rep Van Drew (R,NJ), Rep Escobar (D,TX), Rep Jackson-Lee (D,TX), and Rep Correa (D,CA)} of the twenty-two cosponsors are. This means that there may be sufficient influence to see this bill considered in Committee. Looking at the co-sponsor list you can see that there is bipartisan support for the measure. I suspect that if the bill were to be considered in Committee it would receive sufficient support to recommend the bill favorably.

The main thing that would stop this bill from being considered is the fact the leadership of the Committee has historically been wary of fiddling with the concept of sovereign immunity because of the potential for retaliatory actions by other countries. The last time that sovereign immunity was reduced was in 2016 when additional changes were made to provisions disallowing sovereign immunity claims for states sponsored terrorist activity which was originally added in 2008. It remains to be seen if the current leadership will continue that tradition.

Commentary

This bill sounds all motherhood and apple pie-ish, but it would mean relatively little if it were passed. That is because the crafters did nothing to deal with the provisions of sections 1609, 1610, and 1611 that protect property of foreign countries from being attached or seized to pay off claims. Even where the United States has seized foreign assets in country, it still takes an act of Congress to allow civil claims to be made against those assets. If the crafters of this legislation were serious about allowing civilians to recoup losses from cyberattacks by agents of foreign governments, they would have included a standardized process by which assets seized under various sanction measures could be attached in the newly allowed civil actions.

 

For more details about the provisions of this bill, see my article at CFSN Detailed Analysis, https://patrickcoyle.substack.com/p/hr-2745-introduced - subscription required.