25 May Cisco Accused of Helping China Track Dissidents
Members of Falun Gong have filed suit against Cisco, alleging the company collaborated with the Chinese government to develop and maintain “Golden Shield” technology. As a result of this technology, Falun Gong members have allegedly suffered “severe and gross abuses, including false imprisonment, torture, cruel assault, battery, and wrongful death.”
The complaint, filed by my former colleague Lee Boyd and Terri Marsh of the Human Rights Law Foundation, reflects the modern trend in international human rights litigation.
First, it names Cisco officers, including CEO John Chambers, Vice President Owen Chan, and Thomas Lam, head of Cisco’s Chinese operations. It also names defendants DOES 1-100, who are Cisco employees whose names are not known but who allegedly were responsible for Cisco’s conduct that resulted in plaintiffs’ injuries.
Second, the ATS claim alleges intent, not mere knowledge, to commit international law violations. Cisco and the other defendants “knowingly and purposefully aided and abetted” the Chinese authorities by “bidding for, building, designing, constructing, customizing, installing, and servicing the Golden Shield surveillance system” that enabled the Chinese authorities to identify and persecute the plaintiffs. “Defendants competed aggressively to win contracts to design and develop the Golden Shield, with full knowledge and purpose that it was to be used for the suppression of the Falun Gong religion…. Defendants knew and intended that the products and services Cisco designed for the Golden Shield would be used to commit human rights violations.”
Third, the complaint alleges international law violations under the ATS and the TVPA, but it also includes traditional state law tort claims, such as battery, assault, false imprisonment, and wrongful death. With ATS claims increasingly difficult to succeed, the complaint supplements those violations with traditional tort claims. Pleading domestic tort law claims for misconduct that occurs abroad seems to be a growing trend. As my colleague Trey Childress has argued, by pleading state law “plaintiffs escape substantive law limitations that have been imposed by federal courts on the ATS. Pleading state … law allows international law to be developed in U.S. courts not through federal common law but through general principles of choice of law.”
Fourth, the complaint is one of the few international law claims that focuses on technological innovation and customization to facilitate human rights abuse. If technology companies are customizing their products and services to facilitate government surveillance of dissidents, it raises novel questions of government and corporate cooperation to commit human rights violations. The complaint emphasizes that Falun Gong members are dispersed throughout China, and must utilize the Internet to practice their religion. The complaint alleges that effective Internet surveillance is a central part of China’s efforts to monitor, identify, and persecute the group.
It seems that the central debate in this lawsuit is whether the plaintiffs can prove that Cisco and its employees customized their technology to facilitate surveillance of the Falun Gong. Based on my conversations with Lee Boyd and Terri Marsh, they are convinced they can prove such customization. They say that Cisco whisteblowers have provided them internal documentation that will prove Cisco customized its products to develop the Golden Shield. Cisco, on the other hand, vigorously denies the allegations. As reported here, the company stated that it does not “customize our products in any way that would facilitate censorship or repression.”
We shall see.