Victory! Ninth Circuit Allows Human Rights Case to Move Forward Against Cisco Systems
People around the world have been searching for ways to hold accountable companies that build tools for government repression. From massive surveillance systems to state-sponsored malware, governments around the world are increasingly using technology to locate, track, and engage in human rights abuses against disfavored communities, journalists, and activists.
In a tremendous victory for the victims of those tools of repression, the Ninth Circuit cleared a path of legal accountability for American technology companies who build tools that facilitate human rights abuses by foreign governments, in a case called Doe I v. Cisco Systems. EFF filed multiple amicus briefs in the case, including in the Ninth Circuit.
Cisco is just one of many American technology companies that have been complicit in facilitating human rights abuses in foreign countries. We applaud the Ninth Circuit in helping ensure that the key statute in the case, the Alien Tort Statute (ATS), remains an important mechanism for holding companies accountable when they choose profit over human lives.
The Ninth Circuit allowed victims to sue tech giant Cisco Systems in a long-running case seeking redress for the company’s role in building and deploying the “Golden Shield,” also referred to as “The Great Firewall of China.” It’s a vast surveillance system that Cisco began building in the late 1990s and that the Chinese government used to violate the human rights of disfavored minorities, including members of the Falun Gong religion, who are the plaintiffs in the case.
The thirteen plaintiffs alleged arrest, detention, and torture, including of themselves and family members, at least one of whom died by beating while being detained. The claims are horrific and echo reports by the U.S. State Department and many human rights NGOs. They include claims that the plaintiffs were placed in forced labor camps, beaten with steel rods, shocked with electric batons, and endured sleep deprivation and violent force-feeding. The plaintiffs also alleged that their private emails, text messages, and other information—intercepted by the Golden Shield—were shown to them and used as part of their torture and forced conversion, including threats to their family members and others who communicated with them.
The Ninth Circuit’s opinion, which comes after a long wait, makes several critical determinations:
- U.S. corporations can be held liable under the ATS, which allows foreign persons to sue for human rights abuses in U.S. courts. ATS defendants need not only be natural persons.
- A company can be held responsible for “aiding and abetting” human rights abuses and does not have to commit the abuses directly.
- A company does not need to have a purpose to facilitate human rights abuses. It only needs to have knowledge that its assistance helped in human rights abuses.
- When deciding whether a company had done enough to constitute “aiding and abetting,” a court can look at the cumulative impact of many corporate actions and need not find one that alone constitutes sufficient assistance.
- The fact that a technology has legitimate uses does not shield a company from liability for other uses that led to human rights abuses. Thus, the fact that China also used the Golden Shield for legitimate law enforcement purposes does not immunize Cisco from liability for its knowing facilitation of human rights abuses. This is a critical point, as we often see companies rejecting responsibility for their surveillance technologies simply because they have dual or multiple uses.
- The actions Cisco took in the United States were sufficient to allow the case to go forward here. The court said: “Plaintiffs allege that Cisco designed, developed, and optimized important aspects of the Golden Shield surveillance system in California; that Cisco manufactured hardware for the Golden Shield in California; that Cisco employees in California provided ongoing maintenance and support,” among others.
There’s much more in the opinion, including allowing a claim to move forward against Cisco’s top executives under another law, the Torture Victim Protection Act (TVPA). Overall, the Ninth Circuit’s opinion is a tremendous victory for human rights and for those who want to ensure that U.S. companies stop helping repressive governments.
Taking a Deeper Dive
For those who want to understand the complex set of legal doctrines that the plaintiffs had to overcome to survive even at this early stage, below is a deep dive into a several aspects of the Ninth Circuit’s critical rulings. . .
>> Electronic Frontier Foundation
![PDF] The Great Firewall of China: How It Blocks Tor and Why It Is Hard to Pinpoint | Semantic Scholar](https://d3i71xaburhd42.cloudfront.net/207f3d4770136f65bf2c74f89553a90d36bf0ae5/5-Figure2-1.png)
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