Edward Snowden

Uphill battle if Hong Kong wants to sue US over hacking

PUBLISHED : Friday, 14 June, 2013, 12:00am
UPDATED : Friday, 14 June, 2013, 10:01am

It will be difficult for Hongkongers to take legal action against the US government for hacking in the city, legal experts say.

But law scholars say whistle-blower Edward Snowden does risk breaching local laws if he discloses information relating to communications between Washington and the Hong Kong or Beijing governments.

Simon Young Ngai-man, director of the University of Hong Kong's centre for comparative and public law, said Snowden should be aware of Section 20 of the Official Secrets Ordinance, which deals with information relating to "security or intelligence, defence or international relations" communicated in confidence to foreign states by Beijing or the Hong Kong government.

It is an offence for someone to possess such information and make a "damaging disclosure" of it, knowing that the information was communicated in confidence. The definition of "damaging disclosure" includes any disclosure that could damage the "work of security and intelligence services". The maximum penalty is a HK$500,000 fine and two years in jail.

"These recent developments underline the importance of Snowden obtaining immediate legal advice in Hong Kong, especially before any further disclosures are made," Young said, referring to Snowden's accusation that the US had been hacking computers in Hong Kong and the mainland since 2009.

Anyone in Hong Kong looking to make a civil claim against the US government would have to show that their computer had been hacked and that the claimant had suffered damage due to the hacking, said Professor Michael Davis, a constitutional law specialist at HKU.

"Mere allegations from a whistle-blower that the US government is engaged in hacking without some proof that you have been directly targeted would not afford sufficient standing," he said. "Generally, to have standing a plaintiff has to prove direct injury."

If parties do succeed in getting a court to hear their case, human rights lawyer Mark Daly said remedies could include an injunction against further hacking or financial compensation if the litigant could show wrongdoing. But Daly said it was too early to predict how any claim would proceed.

Davis added that it may not be possible to take action against the US government given the diplomatic or sovereign immunity confirmed by the landmark Congo case. The case saw the Court of Final Appeal support an interpretation by the Standing Committee of the National People's Congress which deemed that an American company could not seize assets of the Democratic Republic of Congo as it sought repayment of a debt.

"For this reason, these types of things are generally handled by diplomatic representations, as we have seen in regard to US complaints about Chinese hacking," Davis said.

Young said it would not be possible for Hong Kong to lay criminal charges against the US administration for the same reason.

"It depends who you want to prosecute. Snowden's last employer was a government contractor, which is not covered by the immunity," Young said. "But ultimately, it is the central government that decides who has such immunity."

Should Hong Kong decide to prosecute any non-government agency from the US, it could resort to quite a few charges under Hong Kong law for hacking, such as accessing a computer with criminal or dishonest intent. But surveillance was not, in itself, a criminal offence in Hong Kong, he added.