[1]One journalist pointed out that two "hardworking 25-year-old computer science graduates, with $50,000 in hardware and software and little help from outsiders" linked the country of Iran to the rest of the world via the Internet. Carroll Bogert, Chat rooms and chadors, NEWSWEEK, Aug. 21, 1995, at 36.

[2]See Scott Maier, Taking the Front Line Online; Pleas from A War-Torn Land Reach World Via PC Networks, SEATTLE POST-INTELLIGENCER, June 29, 1995, at A1.

[3]See Eugene T. Rossides, Comments at the International Law Society and the Federalist Society's panel discussion "The Rule of Law, Human Rights, and 'The New World Order,'" University of Michigan Law School (Mar. 19, 1996).

[4]See Tod Robberson, Mexican Rebels Using A High-Tech Weapon; Internet Helps Rally Support, WASH. POST, Feb. 20, 1995, at A1.

[5]See id.

[6]See Maier, supra note 2.

[7]See id. at A10.

[8]See id.

[9]See id.

[10]See John Perry Barlow, Thinking Locally, Acting Globally, TIME, Jan. 15, 1996, at 76 ("[N]ation-states are rushing to get their levers of control into cyberspace while less than 1% of the world's population is online.").

[11]See Robberson, supra note 4.

[12]See Not too modern please: Asia and the Internet, THE ECONOMIST, March 16, 1996, at 42, 43.

[13]See Bogert, supra note 1.

[14]Invasion from cyberspace. China's new age, WORLD PRESS REVIEW, March 1996, at 40.

[15]See Not too modern please, supra note 12.

[16]Politics and Current Affairs, THE ECONOMIST, Sept. 23, 1995, at 4.

[17]See Filartiga v. Pena-Irala, infra notes 21-22, and accompanying text.

[18]Judiciary Act, ch. 20, § 9, 1 Stat. 76 (1789). The current version of the Alien Tort Statute appears at 28 U.S.C. § 1350 (1992).

[19] U.S.C. § 1350 (Supp. IV 1992). Note that a person must be acting "under actual or apparent authority, or color of law, of any foreign nation." See discussion infra pp. 24-28.

[20] U.S.C. § 1350 (1992).

[21]See Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980). See also IIT v. Vencap, 519 F.2d 1001 (2d Cir. 1975)(Friendly, J.), where Judge Friendly described the ATS as "kind of legal Lohengrin . . . no one seems to know whence it came." Id. at 1015. Lohengrin is a mythical knight in Wagner's opera Lohengrin, who declares to his beloved: "Elsa, soll ich dein Gatte heissen. Soll Land und Leut' ich schirmen dir . . . . Musst eines du geloben mir: Nie sollst du mich befragen, noch Wissens Sorge tragen, woher ich kam der Fahrt, noch wie mein Nam' und Art!" ("Elsa, should I become thy husband, should nought the ties that bind us break, . . . one promise, Elsa, must thou make. These questions ask me never, nor think upon them ever: from whence I hither came, what is my rank or name!") RICHARD WAGNER, LOHENGRIN 62-64 (Arthur Sullivan et al. eds & John Oxenford trans., Boosey & Co. 1897).

[22]Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[23]Id. at 878 (quoting Complaint).

[24]See id. at 878.

[25] U.S.C. § 1350 (Supp. IV 1992). See discussion infra pp. 25-29.

[26]See Filartiga, 630 F.2d at 878.

[27]See id. at 880.

[28]The Paquete Habana, 175 U.S. 677 (1900).

[29]See id. at 700 ("International law is part of our law . . . . [W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.").

[30]The Nereide, 13 U.S. 388, 423 (1815).

[31]The Charming Betsy, 6 U.S. 34, 67 (1804). The Charming Betsy is quoted with approval in Lauritzen v. Larson, 345 U.S. 571, 578 (1953), and also by the Second Circuit Court of Appeals in Filartiga, 630 F.2d at 887 n.20 (2d Cir. 1980).

[32]The Paquete Habana, 175 U.S. at 700.

[33]Id. at 694.

[34]See, e.g., Filartiga, 630 F.2d at 881. But see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, at 819-820 (D.C.Cir. 1984)(per curiam)(Bork, J., concurring). Bork's concurrence in Tel-Oren is discussed infra p. 8.

[35]See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 (1986).

[36]Filartiga, 630 F.2d at 881.

[37]See id. at 881-85.

[38]See id.

[39]See Richard B. Lillich, Damages for Gross Violations of International Human Rights Awarded by U.S. Courts, 15 HUM. RTS. Q. 207, 209 (1993); Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN'S L. REV. 491, 492 (1993).

[40]Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984)(per curiam)(Bork, J., concurring).

[41]See id. at 799.

[42]See id. at 812-14.

[43]See id. at 813-14.

[44]Id.

[45]Some academics have also criticized Filartiga and its progeny. See, e.g., Alfred P. Rubin, U.S. Torts Suits by Aliens Based on International Law, 18-FALL FLETCHER F. WORLD AFF. 65 (1994); Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18 HASTINGS INT'L & COMP. L. REV. 445 (1995).

[46]See Abebe-Jira v. Negewo, 72 F.3d. 844 (11th Cir. 1996). See also Christopher W. Haffke, The Torture Victim Protection Act: More Symbol Than Substance, 43 EMORY L. J. 1467, 1479 (1994).

[47]See Abebe-Jira, 72 F.3d at 847. See also In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1996)("[The] statute confers federal subject-matter jurisdiction when the following three conditions are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations (i.e., international law)."); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779 (D.C.Cir. 1984)(per curiam)(Edwards, J., concurring); Xuncax v. Gramajo, 886 F. Supp. 162, 180 (D. Mass. 1995).

[48]Notwithstanding Judge Bork's opinion in Tel-Oren, the terms "law of nations" and "customary international law" are used interchangeably by U.S. courts. See, e.g., Filartiga, 630 F.2d at 879-80.

[49]See BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 244-45 (2d. ed. 1995).

[50]The Statute of the International Court of Justice, Art. 38, June 26, 1945, 59 Stat. 1055, 1060, 3 Bevans 1179.

[51]See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 (1986). See also IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5-6 (4th ed. 1990).

[52]See Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects, 63 WASH. L. REV. 1, 2-3. (1988).

[53]U.N. CHARTER art.1, para. 3.

[54]U.N. GENERAL ASSEMBLY, UNIVERSAL DECL. OF HUMAN RIGHTS, U.N. Doc. A/810, U.N. Sales No. 152.1.15 (1948) [hereinafter UNIVERSAL DECL. OF HUMAN RIGHTS].

[55]See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312 U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Protocol No. 5, E.T.S. 55, and Protocol No. 8, E.T.S. 118; American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970); African Charter on Human and People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981).

[56]See THOMAS BUERGENTHAL & HAROLD G. MAIER, PUBLIC INTERNATIONAL LAW IN A NUTSHELL §6-7 (2d ed. 1990).

[57]Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir. 1980). But cf. Handel v. Artukovic, 601 F.Supp. 1421, 1426-27 (C.D. Cal. 1985).

[58]Filartiga, 630 F.2d at 887-88.

[59]Id. at 888.

[60]Id. at 887.

[61]IIT v. Vencap, 519 F.2d 1001 (2d Cir. 1975).

[62]Filartiga, 630 F.2d at 888 (quoting IIT v. Vencap, 519 F.2d at 1015).

[63]Filartiga, 630 F.2d at 888 (emphasis added).

[64]Id. at 889.

[65]Id. at 889 (quoting IIT, 519 F.2d at 1015 (quoting Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 297 (E.D.Pa. 1963)).

[66]Filartiga, 630 F.2d at 888.

[67]See id. at 884.

[68]Id. at 884-85.

[69]Id. at 890.

[70]See Guinto v. Marcos, 654 F. Supp. 276, 279-80 (S.D. Cal. 1986)("Filartiga provides guidance insofar as it notes that the law of nations should be interpreted not as it was in 1789, but as it has evolved . . . and to the extent that international law today limits a state's power to torture . . . . However, there still is no consensus as to what constitutes a "law of nations.").

[71]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1986).

[72]See supra notes 32-35 and accompanying text.

[73]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1986).

[74]Id. at § 702 cmt. a.

[75]See id. at § 702 cmt. j, k, & l.

[76]See id. at § 702 cmt. j.

[77]See id.

[78]UNIVERSAL DECL. OF HUMAN RIGHTS, supra note 54, art. 17.

[79]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 702 cmt. k (1986).

[80]Id. (emphasis added).

[81]U.N. CHARTER art. 1, para. 3.

[82]UNIVERSAL DECL. OF HUMAN RIGHTS, supra note 54, art. 2.

[83]International Covenant on Civil and Political Rights, 1966 U.N. Jurid. Y.B. 178, U.N. Doc. ST/LEG/SER.C/4.

[84]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 cmt. l (1986).

[85]Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984)(per curiam)(Edwards, J., concurring)(Circuit Judges Edwards and Bork, and Senior Circuit Judge Robb filed separate concurring opinions in Tel-Oren).

[86]Id. at 781 (quoting 1 L. Oppenheim, INT'L LAW § 272 at 609).

[87]Id. at 781.

[88]Id.

[89]Guinto v. Marcos, 654 F. Supp. 276 (S.D. Cal. 1986).

[90]Guinto did not reach the question of whether freedom of information is part of the law of nations.

[91]Guinto, 654 F. Supp. at 279.

[92]Id. at 280.

[93]Id. at 280.

[94]Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (D.D.C. 1985).

[95]The court also considered Judge Robb's opinion in Tel-Oren. Judge Robb's opinion, said Von Dardel, relied on the political question doctrine, which did not deprive the Von Dardel court of jurisdiction. Von Dardel, 623 F. Supp. at 258-59.

[96]See Von Dardel, 623 F. Supp. at 257.

[97]Von Dardel, 623 F. Supp. at 257-258.

[98]Id. at 258 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 398, 428 (1964)).

[99]See Von Dardel, 623 F. Supp. at 258.

[100]See id. at 258.

[101]See id.

[102]Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987).

[103]See id. at 1539-41.

[104]Id.

[105]Id. at 1540.

[106]See id. at 1543. The court eventually revisited this last claim, and held that the "international community has . . . reached a consensus on the definition of a 'disappearance'." Forti v. Suarez-Mason, 694 F. Supp. 707, 710 (N.D. Cal. 1988).

[107]Judge Bork's concurrence in Tel-Oren remains a minority view. See S. Rep. No. 102-249 at 4-5 (1991).

[108] U.S.C. § 1350 (1994).

[109]S. REP. NO. 102-249, at 4 (1991); H.R. REP. NO. 102-367, at 3 (1991).

[110]S. REP. NO. 102-249, at 4-5 (1991); H.R. REP. NO. 102-367, at 4 (1991).

[111]S. REP. NO. 102-249, at 5 (1991); H.R. REP. NO. 102-367, at 4 (1991).

[112]S. REP. NO. 102-249, at 3 (1991); H.R. REP. NO. 102-367, at 2-3 (1991) (emphasis added).

[113]S. REP. NO. 102-249, at 5 (1991); H.R. REP. NO. 102-367, at 4 (1991).

[114]H.R. REP. NO. 102-367, at 4 (1991)(emphasis added).

[115]See Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir. 1996)("Congress has made clear that its enactment of the Torture Victim Protection Act of 1991 was intended to codify the cause of action recognized by this Circuit in Filartiga, even as it extends the cause of action to plaintiffs who are United States citizens (citation omitted). With a broad reading of the Alien Tort Act settled as the law of this Circuit and codified by Congress as recently as 1991, we decline the invitation to limit the Act to the one category of torts that arguably prompted its enactment.").

[116]Since the enactment of the Torture Victims Protection Act, one court has repackaged Filartiga's instruction on customary international law as a three factor test. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). The Xuncax court held that for an act to constitute a violation of customary international law: (1) no state may condone the act in question and a there must be a recognizable universal consensus of prohibition against it; (2) there must be sufficient criteria to determine whether the action amounts to the prohibited act and this violates the norm; (3) the prohibition against it must be non-derogable and therefore binding at all times upon all actors. Id. at 184.

[117]See Human and People's Rights in Africa and The African Charter, Report of a Conference held in Nairobi from 2 to 4 December 1985 convened by the International Commission of Jurists, 93-94.

[118]African Charter on Human and People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981), art. 9.

[119]See Burns Weston et al., Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand. J. Transnat'l L. 585, 608-14 (1987); Lees Flinterman & Evelyn Ankumah, The African Charter on Human and Peoples' Rights, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 165-66 (H. Hannum 2d ed., 1992).

[120]International Covenant on Civil and Political Rights, supra note 83.

[121]HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 692 (1996).

[122]Article 27. 1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality, and common interest. Article 28. Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance. Article 29. The individual shall also have the duty: 1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need; 2. To serve this national community by placing his physical and intellectual abilities at its service; 3. Not to compromise the security of the State whose national or resident he is; 4. To preserve and strengthen social and national solidarity, particularly when the latter is threatened; 5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defense in accordance with the law; . . . 8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African Unity. African Charter on Human and People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981), arts. 27-29.

[123]See STEINER & ALSTON, supra note 122, at 694.

[124]UNIVERSAL DECL. OF HUMAN RIGHTS, supra note 54, art. 19.

[125]International Covenant on Civil and Political Rights, supra note 83, at 184.

[126]European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312 U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Protocol No. 5, E.T.S. 55, and Protocol No. 8, E.T.S. 118, Article 10; American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970), Article 13.

[127]European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312 U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Protocol No. 5, E.T.S. 55, and Protocol No. 8, E.T.S. 118, Article 10.

[128]American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970), Article 13.

[129]Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) at 41 (1979). See also Observer and Guardian v. United Kingdom, 216 Eur. Ct. H.R. (ser. A) at 20 (1991) (restraints necessary in interests of national security, protecting reputation or rights of others, preventing disclosure of information received in confidence and for maintaining authority of judiciary).

[130]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 cmt. k (1986)(emphasis added). See supra notes 79-80 and accompanying text.

[131]Bruno Simma, Grenzüberschreitender Informationsfluß und domaine réservé der Staaten, 19 BERICHTE DER DEUTSCHEN GESELLSCHAFT FüR VöLKERRECHT 39, 49-50 (1979). Freedom of information as a principle of international law has been debated since long before World War II, of course. Freedom of speech is protected in the First Amendment to the U.S. Constitution, and a prohibition on the spreading of propaganda has existed at least since the French Revolution. Vernon Van Dyke, The Responsibility of States for International Propaganda, 34 AM. J. INT'L L 58, 60 (1940). International law prior to World War II, to the extent that it concerned freedom of information at all, concentrated on regulating or prohibiting propaganda. See Elizabeth Downey, A Historical Survey of the International Regulation of Propaganda, 1984 MICH. Y.B. INT'L LEGAL STUDIES (MICH. J. INT'L. L.) 341, 341-45.

[132]U.N. GAOR, 1st Sess., pt. 2 at 95, U.N. Doc. A/64/Add. 1 (1947).

[133]Article 19 of the Universal Declaration of Human Rights states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." UNIVERSAL DECL. OF HUMAN RIGHTS, supra note 54, art. 19.

[134]Draft Convention on Freedom of Information, text at 1947-48 U.N.Y.B. 593. See also 1951 U.N.Y.B. 508.

[135]See Downey, supra note 131, at 346-48. See also International Covenant on Civil and Political Rights, supra note 83, arts. 19 and 20.

[136]See Downey, supra note 131, at 348.

[137]See Downey, supra note 131, at 348-349.

[138]The Convention on the International Right of Correction was proposed in 1948. The U.N. also proposed to address the issue of access to information and its transmission from country to country but was unable to come to agreement over a convention. A draft Convention on the Gathering and International Transmission of News was proposed but never adopted. EDWARD W. PLOMAN, INTERNATIONAL LAW GOVERNING COMMUNICATIONS AND INFORMATION 127-28 (1982).

[139]See Downey, supra note 131, at 350.

[140]See Ploman, supra note 138, at 128.

[141]See Downey, supra note 131, at 351.

[142]See Downey, supra note 131, at 351.

[143]See Michael J. Farley, Comment, Conflicts Over Government Control of Information - The United States and UNESCO, 59 TUL. L. REV. 1071, 1074 (1985).

[144]See Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) at 41 (1979). See also Observer and Guardian v. United Kingdom, 216 Eur. Ct. H.R. (ser. A) at 20 (1991) (restraints necessary in interests of national security, protecting reputation or rights of others, preventing disclosure of information received in confidence and for maintaining authority of judiciary).

[145]See ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, RECOMMENDATION OF THE COUNCIL CONCERNING GUIDELINES GOVERNING THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, Sept. 23, 1980, OECD Doc. C(80)58, 20 I.L.M. 422.

[146]See LOUKIS G. LOUCAIDES, ESSAYS ON THE DEVELOPING LAW OF HUMAN RIGHTS 6 (1995) (citing, inter alia, Observer and Guardian v. United Kingdom, 216 Eur. Ct. H.R. (ser. A) at 30 (1991)).

[147]See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312 U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Protocol No. 5, E.T.S. 55, and Protocol No. 8, E.T.S. 118; American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970); African Charter on Human and People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981).

[148]See Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980).

[149]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 n. 11 (1986).

[150]Arguably the African Charter is the least protective of the freedom of information. See African Charter on Human and People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981), Article 9.

[151]See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 846-48 (11th Cir. 1996); Xuncax v. Gramajo, 886 F. Supp. 162, 179 (D. Mass. 1995); In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1474-75 (9th Cir. 1994), cert. denied, 115 S. Ct. 934 (1995).

[152]Someone seeking to cut the plaintiff's communications could destroy or remove the plaintiff's computer or modem, or important related components.

[153]There are many other ways to disrupt communications. For example, enacting a statute proscribing certain types of communication could conceivably violate the plaintiff's rights.

[154]Under American law this is not necessarily a solution, because such a claim would yield only nominal damages. However, it is questionable that American law would apply to the issue of damages. See discussion infra pp. 23-25.

[155]Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). For a thorough discussion of choice of law issues in Filartiga and related cases, see Richard B. Lillich, Damages for Gross Violations of International Human Rights Awarded by U.S. Courts, 15 HUM. RTS. Q. 207 (1993).

[156]Filartiga, 577 F. Supp. at 863 (citing Filartiga v. Pena-Irala, 630 F.2d 876, 886 (2d Cir. 1980))(emphasis omitted).

[157]Filartiga, 577 F.Supp. at 864.

[158]Id. at 863-64.

[159]See id. at 865.

[160]Id. at 864, 865. The Filartiga court based its decision partly on dicta from The Marianna Flora, 24 U.S. 1, 41, 6 L. Ed. 405 (1826), where Justice Story wrote that "an attack from revenge and malignity, from gross abuse of power, and a settled purpose of mischief . . . may be punished by all the penalties which the law of nations can properly administer." Filartiga, 577 F. Supp. at 865 (quoting The Mariana Flora, 24 U.S. 1, 41, 6 L. Ed. 405 (1826)).

[161]Filartiga, 577 F.Supp. at 866.

[162]Id. at 867.

[163]Id. at 865.

[164]Id. at 865.

[165]Id. at 865 (citing Letelier v. Republic of Chile, 502 F.Supp. 259, 266 (D.D.C. 1980)).

[166]See supra note 131 and accompanying text.

[167]See supra pp. 15-16 and accompanying notes. The TVPA codified the holding of Filartiga, establishing "an unambiguous basis for a cause of action" under the ATS, but expanded the remedy "also to U.S. citizens who may have been tortured abroad." The TVPA does not preempt the ATS, under which claims based on violations of customary international law other than torture may still be brought. S. REP. NO. 102-249, at 4 (1991).

[168] Torture Victim Protection Act § 2, 28 U.S.C. § 1350 (1994).

[169]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Oct. 21, 1994, S. Treaty Doc. No. 100-20 (1988), G.A. Res. 39/46, U.N. GAOR, 39th Sess., 93d plen. Mtg., Supp No. 21 at 197, U.N. Doc. A/39/51 (1984) [hereinafter Convention against Torture].

[170]S. REP. NO. 102-249, at 3 (1991); H.R. REP. NO. 102-367, at 3 (1991).

[171]H.R. REP. NO. 102-367, at 3 (1991).

[172]Id.

[173]See id.

[174]S. REP. NO. 102-249, at 3 (1991).

[175]Id.

[176]Id. at 8-9.

[177]Id. at 9.

[178]Id. at n. 16.

[179]Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987). The Report states that "although Suarez Mason was not accused directly of torturing or murdering anyone, he was found civilly liable for those acts which were committed by officers under his command about which he was aware and which he did nothing to prevent." S. REP. NO. 102-249, at 9 (1991).

[180]In re Yamashita, 327 U.S. 1 (1946). The Report states that "the Supreme Court held a general of the Imperial Japanese Army responsible for a pervasive pattern of war crimes committed by his officers when he knew or should have known that they were going on but failed to prevent or punish them." S. REP. NO. 102-249, at 9 (1991).

[181]S. REP. NO. 102-249, at 9 (1991).

[182]See H.R. REP. NO. 102-367, at 3-4 (1991).

[183]The House report does not cite In re Yamashita either, but that is understandable. In re Yamashita was decided in 1946 and did not involve the ATS.

[184]H.R. REP. NO. 102-367, at 4 (1991).

[185]Id.

[186]Convention against Torture, supra note 169, at 197 (emphasis added).

[187]J. HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE. A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 122 (1988).

[188]Convention Against Torture, supra note 169, §2(1) at 197.

[189]Id.

[190]Convention against Torture, supra note 169, §4(1) at 198 (emphasis added).

[191]But-for causation, i.e that but-for suppression of an Internet report the torture being reported on would not have occurred, is not required to establish liability. States have an affirmative obligation to stop any torture occurring within their borders, see supra notes 171-175 and accompanying text, and governments can be implicated in torture merely by their acquiescence to the act, see supra note 177 and accompanying text. Since this low threshold of liability can be met by mere inaction, actively assisting torture by interfering with Internet reports will also meet this threshold. See also Forti v. Suarez-Mason, 672 F.Supp 1531 (N.D. Cal. 1987)(holding the defendant civilly liable for those acts which were committed by officers under his command about which he was aware and which he did nothing to prevent, even though he was not accused of torturing or murdering anyone directly). For the same reasons, a defendant government will also be liable in tort for complicity after-the-fact. Where the suppressed Internet report relates to ongoing torture, there is no question that the state is liable. As long as the torture continues, and the state prevents reporting, it is implicated. A problem may arise if the victim is no longer being subjected to torture when the Internet report is suppressed. A defendant may claim that after-the-fact suppression is not causally linked to the torture and that although the state violated international law, it did not commit a tort. This defense should be rejected however, as such a causal link is not required, as noted above. For the purposes of the Convention Against Torture, liability attaches when a person is merely complicit in torture. There are no distinctions between the persons actually conducting the torture and persons ordering, consenting to, or acquiescing in the torture, see supra notes 178-179 and accompanying text, and the Convention does not require that consent or acquiescence be expressed before the torture actually occurs. In addition, after-the-fact suppression of reporting could be viewed as strong inferential evidence that the defendant state acquiesced in the torture at the time the torture was occurring. It also implies that a state is benefiting from the torture. Based on such evidence, a finder of fact could conclude the defendant was complicit. Even if an after-the-fact defense is available, the defendant state would still be liable for tortious interference with the freedom of information.

[192]See, e.g., Filartiga v. Pena-Irala, 577 F.Supp. 860 (E.D.N.Y. 1984).

[193]Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).

[194] U.S.C. §§ 1330, 1441(d), 1602-11 (1994).

[195]Amerada Hess, 488 U.S. at 434.

[196]See 28 U.S.C. § 1605 (1994).

[197]See Adam C. Belsky et al., Comment, Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 CAL. L. REV. 365 (1989).

[198]Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992).

[199]See id. at 718-19.

[200]Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994), cert. denied, 115 S.Ct. 923 (1995).

[201]Princz was an American citizen living in Czechoslovakia in 1942 when he was arrested and sent to Auschwitz. He was liberated in 1945, but because he was an American, he was sent to an American army hospital and not to the Center for Displaced Persons like other prisoners, and so was denied compensation paid to Holocaust survivors processed at the Center. For an informative discussion of Princz and the doctrine of sovereign immunity, see Mathias Reimann, A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany, 16 MICH. J. INT'L L. 403 (1995).

[202]Id. at 415.

[203]See id. at 415-18.

[204]Who can be sued depends on whether the claimant relies on the ATS alone, or the ATS and the TVPA. An ATS claim could be made against the company for tortious interference with the freedom of information. Under the TVPA, however, the claim could only be made against individual company personnel. The TVPA only holds individuals liable for torture. 28 U.S.C. § 1350 (1998). According to the Senate Report, "[t]he legislation uses the term 'individual' to make crystal clear that foreign states or their entities cannot be sued. Consequently, the TVPA is not meant to override the Foreign Sovereign Immunities Act . . . which renders foreign governments immune from suits in U.S. courts, except in certain circumstances." S. REP. NO. 102-249, at 7 (1991).

[205] U.S.C. § 1605(a)(2) (1994).

[206]Id.

[207]Republic of Argentina v. Weltover, 504 U.S. 607 (1992).

[208]Id. at 617-618.

[209]International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[210]Weltover, 504 U.S. at 619, 619 n.2.

[211]See, e.g., Anatares Aircraft v. Federal Republic of Nigeria, 999 F.2d 33 (2d Cir. 1993)(tort claim arising from the detention of an aircraft overseas dismissed for failure to show "direct effect" on the U.S.); Martin v. Republic of South Africa, 836 F.2d 91 (2d Cir. 1987)(financial loss resulting from personal injury suffered abroad is not a "direct effect" on the U.S.); Zernicek v. Brown & Root, Inc., 826 F.2d 415, 419 (5th Cir. 1987)(consequential damages from personal injury abroad are insufficient to constitute a "direct effect" on the U.S.). See also Princz v. Federal Republic of Germany, 26 F.3d 1166.

[212]As of this writing, no court in the United States has been confronted with an ATS claim arising from cyberspace contacts with the United States.

[213]A third class of defendants may soon be available to human rights claimants. In Kadic v. Karadzic, 70 F.3d. 232 (2d Cir. 1995), the plaintiff sued a leader of a Bosnian-Serb faction in the former Yugoslavia, alleging he and his troops were responsible for systematic human rights violations. The Second Circuit refused to dismiss the suit, holding that private actors can be liable for violations of the law of nations, even if they are not acting on behalf of a recognized government. Building on Kadic, some courts have indicated a willingness to entertain claims against multinational corporations. In one pending suit, villagers from Myanmar allege Unocal Corp. and Total S.A. colluded with the Myanmar military government to relocate and enslave them as part of a pipeline construction project on the Thai border. John Doe v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal. 1997). In all claims against multinationals, courts are consistently requiring a showing of state action. Kadic held that some human rights violations, including torture, "are proscribed by international law only when committed by state officials or under color of law." Kadic 70 F.3d at 243 (citing Convention Against Torture Art. 1). Citing Kadic, one court dismissed murder and torture claims against a corporation operating in Indonesia, holding that private actors can only be liable for such crimes if they act under color of law. Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362 (E.D. La. 1997). The court relied on the jurisprudence of 42 U.S.C. § 1983 and the test in the Restatement § 207 to determine whether state action was present. See Beanal, 969 F. Supp. at 374. Nevertheless, human rights advocates are undaunted and promise to bring more suits against corporations in the future. Jennifer M. Green, a staff attorney with the Center for Constitutional Rights who is involved with the Unocal case, argues that it is now "established firmly" in the Second Circuit that private actors such as corporations can be held liable for human rights violations just like states. She hopes that the threat of lawsuits might force companies to work to curb human rights abuses. Dominic Bencivenga, Suits Attempt to Extend Liability to Corporations, 218 N.Y.L.J. 46, Sept. 4, 1997, at 6. "If sheer morality doesn't do it, maybe hitting the pocketbook of companies will make a difference," says Green. Id. at 5. The ultimate effect of these cases on human rights advocacy remains to be seen. As the law develops, parastatals and multinationals may become increasingly vulnerable to ATS claims, providing plaintiffs with a new range of litigation options.

[214]Underhill v. Hernandez, 168 U.S. 250 (1897).

[215]Id. at 252.

[216]Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

[217]For a thorough discussion of this issue, see Reimann, supra note 201, at 427-31.

[218]See Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980).

[219]S. REP. NO. 102-249, at 8 (1991).

[220]See also Reimann, supra note 201, at 430 (urging legislative clarification of the applicability of the act of state doctrine to human rights claims).

[221]See Baker v. Carr, 369 U.S. 186 (1962) (concerning equal protection challenge to a legislative reapportionment).

[222]Id.

[223]Id. at 211.

[224]See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 823 (D.C. Cir. 1984) (Robb, J., concurring) (dismissing ATS claim on grounds of the political question doctrine).

[225]See, e.g., Linder v. Portocarrero, 963 F.2d 332 at 336-337, (11th Cir. 1992); Von Dardel v. Union of Soviet Socialst Republics, 623 F. Supp. 246, 257-259 (D.D.C. 1985); Abebe-Jira v. Negewo, 72 F.3d. 844, 847-848 (11th Cir. 1996).

[226]See 28 U.S.C. § 1605(a) (1994).

[227]Comprehensive Antiterrorism Act of 1995, H.R. 2703, 104th Cong. § 803 (1995)(proposing to amend 28 U.S.C. § 1605).

[228] Id.

[229] In discussing the jurisdictional provision in one version of the bill, the House Judiciary Committee stated that "[i]t is expected that a lawsuit proceeding under this section will be brought either by the victim, or on behalf of the victim's estate in the case of death or mental incapacity." H.R. REP. NO. 104-383 at 105 (1996). The House Bill explicitly adopted the Immigration and Nationality Act's definition of "national of the United States," Comprehensive Antiterrorism Act of 1995, H.R. 2703, 104th Cong. § 803 (1995)(proposing to amend 28 U.S.C. § 1605), which includes anyone who is "a citizen of the United States" or who "owes permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22) (1994). This definitional language was retained in the legislation as it was eventually enacted, Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241 (codified as amended at 28 U.S.C.A. §§ 1605, 1610(a) (West Supp. 1998)), leaving open the possibility that claims could be filed by naturalized U.S. citizens on behalf of foreign relatives.

[230]Under the current law, defendants are frequently judgment proof, see infra p. 29, but the House Bill permitted recovery against the assets of a foreign state. Comprehensive Antiterrorism Act of 1995, H.R. 2703, 104th Cong. § 803 (1995)(proposing to amend 28 U.S.C. § 1610(a) to deny a foreign state immunity from attachment where sovereign immunity is denied under the exceptions contained in 28 U.S.C. §1605(a)(7)).

[231]Comprehensive Terrorism Prevention Act of 1995, S. 735, 104th Cong § 205 (1995)(proposing to amend 28 U.S.C. §1605)(citations omitted).

[232]H.R. Rep. No. 104-518, at 29-30 (1996).

[233]Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241 (codified as amended at 28 U.S.C.A. §§ 1605, 1610(a) (West Supp. 1998)).

[234]See Bureau of Export Administation, Special Country Policies and Provisions, 15 C.F.R. § 785 (1995).