Hudspeth: The time has come for new types of responses

Stephen Hudspeth

Stephen Hudspeth

Staff / Hearst Connecticut Media

We are under attack right now. One need look no further than Russian hacking that has reached extraordinary proportions ranging from our election systems and electrical grids to deep probes inside U.S. corporations, including most recently tech giants, vital pipelines and essential food processors, and our federal government itself across multiple agencies.

The time has come for new types of responses.

Consider “old-style” responses:

(1.) Through its wanton hacking activities, Russia has effectively declared war on the U.S. However, if the U.S. responds in kind by launching a counterattack that shuts down broad swaths of the Russian economy electronically (as we presumably can do), the result will likely be retaliation and repeated escalations resulting in potential economic devastation on both sides.

(2.) Criminal actions have no impact on Russian hackers. The U.S. has no extradition treaty with Russia; so we’ll never get our hands on these bad actors unless they’re stupid enough to enter a country with which we do have an extradition treaty and are successfully detained there.

Now consider a different approach:

One of the most effective ways to deter bad actors is the U.S. civil litigation system as I’ve seen firsthand in almost half a century as a trial lawyer. With its provision for punitive damages for egregious -- and especially intentional - bad acts, civil litigation has enormous deterrence power.

Some will say it can’t be done, that we can’t sue bad actors sequestered within Russian borders: We have sovereign immunity statutes and are party to international conventions that prohibit even governmental actions against foreign national governmental entities and agencies except through international tribunals, a prescription for long-term delay.

However, under so-called long-arm statutes, actions orchestrated from outside our nation are still actionable civilly in our state and federal courts because they are specifically and intentionally directed to have their malicious impact and effect here.

Compensatory damages from these hacks are enormous in terms of time spent discovering and correcting their consequences and then creating new safeguards to prevent future incursion, not to mention ransomware payments made. Add to those billions of dollars of actual damages the huge punitive damages - significant multiples of actual damages -- that can be sought and obtained for intentionally malicious actions like this wrongful hacking, and you have massive exposure for the bad actors.

It may be said that we can’t accomplish proper service on, and hence gain jurisdiction over, these bad actors. However, our courts have the power to allow other methods of service of process where the usual ones are frustrated. Those other methods can effectively assure that defendants are on notice of the litigation and can respond.

Russian defendants can be expected to do what it takes to avoid default judgments being entered against them. The motions to dismiss on jurisdictional grounds that their attorneys will consequently file will allow our courts to consider whether these actions should proceed. If our courts find that they should, then the usual discovery processes will begin, and if the Russians refuse to produce documents or to appear for depositions, inferences can be drawn against them.

In addition, it’s widely understood that nothing significant happens in Russia without Putin’s approval. So, bring civil suits, including civil RICO actions with treble damage awards, against that ultimate bad actor in his individual capacity as well as against those Russian “private” entities and agencies that are known to be part of the hacking and the individual bad actors within them.

How can injured parties recover on resulting damage awards? Levy on Russian assets around the world. It’s said that Putin is the wealthiest man in the world thanks to his looting of Russia’s people and the Russian economy, with the bulk of those ill-gotten assets squirreled abroad so that if Putin ever loses power, he’ll have those assets available to fall back on. It can be safely assumed that U.S. intelligence agencies know in what financial institutions those assets are buried. Enforce the resulting judgments against those assets and include Russian corporate assets as well as Putin’s personal assets in that recovery process.

Deterrence is the name of the game here of course, yet it seems that the usual deterrence mechanisms have no effect on stopping Russia’s malicious conduct and Russian actors only get further emboldened by each ever-escalating success. So, put a real crimp in that success rate by harnessing the civil litigation power for which the U.S. is known and feared around the world - keeping pressure on multiple civil-action fronts as the Russian people themselves courageously support Navalny.