A U.S. citizen who believes his computer was hacked by the Ethiopian government is appealing for the right to have his case against a foreign government heard in a higher U.S. court.
In 2014, a district court found that “Kidane,” a man living in Maryland who has worked with members of the Ethiopian diaspora and was critical of the government, could not sue Ethiopia for using software to monitor his activity. The 2014 decision determined that U.S. courts do not have jurisdiction because the alleged malware attack was initiated outside of U.S. borders. Kidane is using a pseudonym, his lawyers say, for his protection.
In an appeal filed last month in the U.S. Court of Appeals for the District of Columbia Circuit, Kidane’s attorneys argued that the old standard is outdated in the age of digital surveillance. They believe this case could set a precedent for dissidents around the world who are being tracked or harassed electronically by foreign governments.
“We think that the place where the software recorded his communications is on his own computer in Maryland and that means Ethiopia can be sued in the United States,” said Cindy Cohn, the executive director of the Electronic Frontier Foundation (EFF), an organization that fights for civil rights in the digital sphere. EFF is representing Kidane in the case.
Kidane believes the Ethiopian government used a malware program called FinSpy to record his Skype calls, monitor his web searches and scan his email. EFF argues this is no different than traditional spying, but says it is time for the laws to catch up.
“Everyone agrees that had Ethiopia sent an actual spy into Maryland and had that spy in Maryland listening into Mr. Kidane’s conversations, that they could be held liable for that,” Cohn said. “And we don’t think that the fact that they used a computer program to do the same thing should mean that they are free from the law.”
In response to The Washington Post in 2014, an Ethiopian government official said that the government “did not use and has no reason at all to use any spyware.” However, according to leaked documents published by the magazine Wired, Ethiopia hired a Milan-based group called “The Hacking Team” for foreign surveillance work. The group issued Ethiopia an invoice for $1 million and had other government customers including Azerbaijan, Bahrain, Egypt, Kazakhstan, Morocco, Nigeria, Oman, Saudi Arabia and Sudan. The group is also alleged to have done work for U.S. security agencies.
Difficult to detect
Tewodros Workneh, an assistant professor at Kent State University’s School of Communication Studies, researches government surveillance. Workneh said that this type of surveillance can be very precisely targeted and is not easily noticeable aside from slowing down the victim’s computer.
“What this particular malware does is create a dummy folder in your computer so that the daily communication that you have — every activity in that computer — is going to be stored in that folder, which means it is going to eat up a lot of memory,” he said. “So, it’s going to slow down significantly, and that’s when he decided to — he took his computer to get looked at, and he was told that there was a surveillance [software] installed in his computer.”
Workneh said those who are in fear of surveillance should be wary of unknown email attachments, regularly update their antivirus software and, if they are particularly fearful, visit a computer security professional every three months. “It all comes down to our personal behavior,” he said. “We really cannot control what others are going to do, but we can control our own behavior.”
In this civil case, Kidane is seeking compensation for damages as well as attorney fees, but Cohn said that is all secondary to setting a precedent. “We [hope to] get a declaration from the U.S. courts that says wiretapping Americans in America violates U.S. laws, and foreign governments will be held accountable for illegal behavior just as private citizens would be held accountable for that behavior,” said Cohn. “That would be an important step not just for Ethiopia but for all of the countries in the world.”