By Seth Parent
In Doe v. Cisco Systems, Inc., Cisco Systems is under fire for a recent development in its ongoing business relationship with the Chinese government. The plaintiffs in Doe allege that Cisco knowingly aided and abetted the Chinese government by developing a system custom-tailored to identify, track, and persecute members of a minority group known as the Falun Gong.
The complaint was initially dismissed for lack of protection under the Alien Tort Statute (ATS), though it is now on appeal. The ATS grants federal district courts jurisdiction over violations of certain international laws regardless of where the harm occurred or who inflicted that harm.
Falun Gong is a system of meditation founded in 1992 that is derived from Buddhist and Daoist concepts. Initially supported by the Chinese government, Falun Gong quickly grew in popularity throughout China. By 1999, it had an estimated 70 million followers and the capacity to independently organize via its large online presence. That same year, the Chinese government banned the practice of Falun Gong, labelling it “an evil cult… [that] carried out illegal activities, promoted superstition and disrupted social order.” After this ban, many Falun Gong were arbitrarily detained for refusal to denounce their practices.
So how does the history of Falun Gong relate to Cisco, a US based technology company that produces routers and other hardware necessary for internet network infrastructure? Well, as China promulgated its ban on Falun Gong, Cisco secured a contract to help build surveillance and censorship services for China, services that would later become known as the “Golden Shield.” The Golden Shield is a system that China uses to restrict its citizens’ access to tens of thousands of websites as well as monitor their online activity. In their lawsuit, the plaintiffs allege that Cisco took steps beyond providing a system that had merely the potential to track and locate dissidents, and knowingly tailored the system to track and locate members of Falun Gong.
The plaintiffs in Doe v. Cisco were Falun Gong practitioners who were detained, beaten, deprived of sleep, electrocuted, drugged; and one was even beaten to death while in custody. However, the district court for the Northern District of California dismissed the plaintiffs’ claims for lack of protection under the ATS predominantly because human rights abuses in China do not adequately “touch and concern” the United States. The district court further claimed that even if the ATS granted jurisdiction, Cisco lacked the required mental state for aiding and abetting because: 1) Cisco could not have known torture would occur after persecution of Falun Gong followers; and 2) the Golden Shield network had other crime control uses that did not amount to human rights abuses.
The dismissal is being appealed in the Ninth Circuit, and various human rights organizations have submitted amicus briefs in support of the plaintiffs. For instance, the Electronic Frontier Foundation’s brief argues that under the district court’s interpretation of the ATS, Cisco could only be found liable if they had actually gone to China and perpetrated the human rights abuses themselves.
Additionally, the district court’s ruling that Cisco could not have known that these Falun Gong could be tortured is deeply flawed. Cisco had an intimate relationship with Chinese leaders throughout the 90’s, including the very leaders that pushed for the ban on Falun Gong. During that same time there were many documented and widely known human rights abuses, including torture, inflicted upon Falun Gong followers in China. Taking these two facts together, a jury could conclude that Cisco had knowledge that torture may stem from capture of those followers. Also, the Golden Shield is a massive, complex system affecting over 700 million users; the mere fact that it has alternative uses that may not amount to “human rights abuse” should not excuse Cisco.
Further, allowing this case to proceed under plaintiffs’ theory would not place any undue hardships on US technology companies looking to expand overseas. In fact, the plaintiffs admit that it would be unfair to hold companies liable in instances where their software or hardware is used in unforeseen, sinister ways. However, the issue in Doe is not one where software was used in some creatively malicious way, but rather one where a company may have deliberately designed a feature knowing that it would be used to perpetrate human rights abuses.
For these reasons, I agree with the Electronic Frontier Foundation and other human rights organizations’ decision to file amicus briefs, and I believe that this case should be allowed to proceed to discovery. An expansion of the ATS to include the plaintiffs’ claims is solid public policy that promotes global welfare. As Americans and beneficiaries of amazingly innovative technologies created here in the United States, we have a duty to ensure that our companies do not use that innovation to profit off of human rights abuses by turning those very same technologies against our fellow humans across the globe.