By Beth Van Schaack on March 24, 2015 at 5:15 am
Although information technology is often hailed for its potential to promote human rights, governmental accountability, economic development, and democratization—all promises underlying Stanford’s Liberation Technology Program—these very same tools can be deployed as instruments of repression. This paradox is at the heart of Doe v. Cisco Systems, a class action lawsuit quietly proceeding in a San Jose courtroom. The case, brought on behalf of Falun Gong practitioners by the Human Rights Law Foundation and the Los Angeles firm of Schwarcz, Rimberg, Boyd & Rader, LLP, concerns China’s so-called Golden Shield, a network security architecture in place since 2000 and used by the Ministry of Public Security for the surveillance of Chinese dissidents, human rights defenders, and others. San Jose-based Cisco has been sued along with its CEO John Chambers and other executives. A parallel case (Du Daobin v. Cisco Systems) was filed in Maryland on behalf of Chinese online authors who were jailed and tortured following their publication of articles critical of governmental policies or promoting human rights and democracy. (The Electronic Frontier Foundation provides extensive background on these cases here).
The Golden Shield was initially designed for content control and censorship (earning it the nickname “the Great Firewall”), although the program now reportedly includes technology capable of providing speech and face recognition, content and URL filtering, blocking and misdirection of IP addresses, individualized user surveillance and digital “signature” identification, real-time law enforcement alerts, bulk information gathering, and dynamic analysis of online behavior. (A backgrounder by Torfox, a Stanford student group dedicated to informing people about the Golden Shield is here). The lawsuits contend that Cisco Systems customized its hardware for the Golden Shield in such a way as to enable the Chinese government to identify, track, profile, arrest, disappear, and torture (in at least one case to death) the plaintiffs or their loved ones. A central claim is that the Golden Shield, as designed and implemented by Cisco, enabled the Chinese security services to compile a database of information regarding the victims’ individual circumstances (patterns of life, family composition, political tendencies, work history, financial information, etc.) to inform its practice of zhuanhua—the forced conversion of dissidents through torture and mistreatment. Plaintiffs allege that Cisco knew its technology would be deployed for this purpose as evidenced by its interactions with governmental leaders and security personnel, shareholder resolutions and public demonstrations, its representations in government security tradeshows, the presumed due diligence it would undertake in preparation for such a project, its marketing materials and internal reports (some of which were leaked in connection with the litigation), and the sheer notoriety of China’s persecution of the Falun Gong. On the latter, see the Congressional-Executive Committee’s 2012 Annual Report on China, Amnesty International urgent actions on behalf of practitioners, and the work of the U.S. Commission on International Religious Freedom.
The San Jose suit includes a number of international law claims—for torture and cruel treatment, forced labor, prolonged and arbitrary detention, crimes against humanity, extrajudicial killing, and enforced disappearances—as well as allegations that the company is complicit in the state-law torts of battery, assault, false imprisonment, and unfair business practices (§17200 CA Bus. & Prof. Code) and federal claims under the Electronic Communications Privacy Act (ECPA). One U.S. citizen and resident, Charles Lee, has sued under the Torture Victim Protection Act. (The Second Amended Complaint is here). In its motion to dismiss, Cisco—represented by former Stanford Law School Dean Kathleen Sullivan of Quinn Emanuel—argued that it sells generic networking hardware in full compliance with U.S. export controls, including restrictions on certain crime control and detection equipment. In a statement, Cisco argued that it does not operate networks in China or customize its products to facilitate censorship or repression.
Both cases have been dismissed at the district court level. The Maryland district court dismissed the suit by Du Daobin in February 2014 on double justiciability grounds (the political question and act of state doctrines). The Northern District of CA dismissed the class action suit in September 2014 on the theory that the case did not have sufficient ties to the United States to overcome the presumption against extraterritoriality under the test set forth by the Supreme Court in Kiobel v. Royal Dutch Petroleum Co. (2013), another corporate complicity case involving the extractive industries in Nigeria. (Cisco’s successful Motion to Dismiss is here).
In October 2014, Plaintiffs moved for reconsideration in light of intervening 9th Circuit precedent in Doe v. Nestle USA, Inc. (2014)—a case involving allegations that the company aided and abetted the use of child slaves in Côte d’Ivoire. In Nestle, the appellate court clarified the standards for aiding and abetting liability under the ATS. The Doe motion was originally scheduled to be heard on March 5, 2015, but the court indicated it would decide the matters on the papers. These cases in many respects offer a microcosm of the legal disputes surrounding ATS litigation and corporate complicity in light of the Supreme Court’s 2013 ruling in Kiobel—the subject of part II of this post.
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