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EFF Files Amicus Brief in Case That Seeks to Hold IBM Responsible for Facilitating Apartheid in South Africa

DEEPLINKS BLOG
February 5, 2015

EFF Files Amicus Brief in Case That Seeks to Hold IBM Responsible for Facilitating Apartheid in South Africa

EFF defends rights in the digital world. But what about when the digital world enables violations of human rights? We think that’s important, too. That’s why we filed an amicus brief in In Re: South African Apartheid, a case that seeks to hold IBM's headquarters in New York responsible for purposefully facilitating apartheid, by creating a computerized national ID system that the South African government used to strip the country’s black population of its rights as citizens.  

As we point out in our brief:

EFF believes that U.S. corporations should not enjoy immunity for their purposeful assistance, technological or otherwise, in gross human rights violations ... Technology has the capacity to protect human rights but it also can be customized to make violations ruthlessly efficient, as IBM’s history sadly demonstrates.

This case isn’t about general-purpose technology being cleverly misused by a malicious government. Rather, this case is about corporate collaboration in governmental human rights abuses, through the creation of a customized technology solution for the known and intended purpose of enabling apartheid — a system that the UN characterized as a “crime against humanity.”

The Injury

The Plaintiffs’ brief explains how IBM technology assisted the apartheid government of South Africa in achieving “denationalization” of the nation’s black population:

To achieve the goals of racial separation and a majority white nation, the South African government created “independent” Bantustans (or homelands) designated for particular ethnic groups thereby stripping blacks of their South African citizenship. The intended effect of these Bantustans was to suppress the black population, as well as to restrict their rights to live, work, and travel in, out, and within South Africa. 

In order to do this, the government treated black South Africans like numbers, classifying and controlling them. They did so with identity documents that “black South Africans were made to carry ... to enforce apartheid and control their movements, residence, and work opportunities.”

These were not off-the-shelf products. The national ID documents and their underlying computer systems were products that IBM specifically bid on contracts to produce and customize for the South African government. IBM software and hardware underpinned the racial classification system and population tracking that facilitated apartheid.

These were also not isolated, one-time incidents. And they weren’t unknowing:

[E]ven after sanctions prohibited sales of the restricted goods to identified South African authorities, Defendants intentionally and repeatedly provided the means to carry out the violations by placing their specialized products in the hands of the very abusers who had already been identified for using such methods to violate human rights.

In fact, IBM spent decades deceiving the U.S. authorities, actively opposing, and ultimately circumventing sanctions against the apartheid government.

The Case

In re: South African Apartheid is a consolidated case with two corporate defendants (IBM and Ford) and dozens of South African plaintiffs.

The plaintiffs are suing under the Alien Tort Statute (ATS). The ATS allows anyone to sue in U.S. court for damages resulting from violations of international law — including violations of human rights. Unfortunately, a 2013 Supreme Court Decision called Kiobel v. Royal Dutch Petroleum limited the law’s applicability to human rights violations that occurred outside the U.S. The Court said that for a U.S. court to have jurisdiction to hear these ATS claims, the claims must “touch and concern” the United States. The Second Circuit Court of Appeals interpreted this rule as requiring a “clear link” between the foreign human rights abuses and the U.S.-based conduct of the defendant.

After that ruling, Plaintiffs asked the district court to allow them to file new complaints to more clearly specify how IBM’s actions in the U.S. – by its New York headquarters – was linked to human rights abuses committed by the South African government. That request to amend was denied, but the plaintiffs are appealing that decision to the Second Circuit. EFF submitted an amicus brief in support of the plaintiffs to urge the court to allow plaintiffs to amend their complaints and continue with the litigation so the plaintiffs can seek justice.

EFF’s Amicus Brief

EFF got involved in this case because we believe it is possible, appropriate and important to hold companies like IBM accountable for building and providing ongoing support for technologies that clearly enable and assist repressive governments in committing human rights violations.

In fact, we have a long history of working on this issue. We attempted to file an amicus brief in Doe v. Cisco Systems, a case that sought to hold Cisco responsible for designing and developing Golden Shield, a system built for the express purpose of tracking, identifying and facilitating the capture of Chinese religious minorities. We’ve pushed Cisco to take responsibility for this particular activity, but we also documented the many ways in which major corporations have assisted repressive regimes, and have even published a whitepaper to help them avoid doing so.

Our amicus brief in this case provides historical and current context of this issue to the court.  

In particular, we point out the disturbing parallels between IBM’s actions vis-à-vis South Africa and Nazi Germany: IBM New York purposefully “facilitated gross human rights abuses by the Third Reich.” 

That aid is chronicled in IBM and the Holocaust, a well-researched and well-regarded book by historian Edwin Black. And it’s a disturbing story. IBM provided the Nazis with early computing technology — their punch card systems — that allowed the regime to efficiently identify and track the Jews and other "undesirable" populations. In fact, the famous five and six-digit number tattooed on the arms of Auschwitz inmates began as a punch card system identification number.

IBM technology was key to the censuses that the Nazis used to identify Jews. By “quickly and efficiently cross-referenc[ing] census data” with myriad other data sets, IBM machines directly aided the Nazis in confiscating Jewish property and targeting people for forced sterilization. They also were indispensable in managing concentration camps. 

These systems in the Third Reich were the predecessors to the systems it provided in South Africa to identify the blacks and those, in turn, were the predecessors to the more complex systems provided by current U.S. companies to China and other countries (like Cisco’s Golden Shield) that assist them in identifying and tracking disfavored minorities. In addition to such systems, U.S. companies have provided surveillance technology. For example, the “Syrian regime restricts speech and online activities using Western surveillance tools, including technology from U.S. company Blue Coat.”

The depth of IBM’s assistance to the Third Reich is compounded by the fact that it clearly was provided knowingly. Although IBM had a German subsidiary, it was managed directly by IBM New York. IBM New York sent equipment directly to its German subsidiary, provided funding and the authorization to enable the subsidiary to manufacture equipment itself, and oversaw the operations of the German factory (to the degree that even changes in the layout needed to be approved by IBM New York). The Nazis leased (rather than bought) the punch card machines, so IBM New York always knew which Nazi agencies were using the machines. IBM New York and later its subsidiary also customized the punch cards themselves – the modern equivalent would be custom-tailored software – for each specific Nazi project.

This assistance grows especially disturbing in light of the fact that IBM president Thomas J. Watson openly supported the goals of Nazi Germany, and was even awarded “a national medal to commemorate the help that IBM had given Nazi Germany: the Merit Cross of the German Eagle.” As anti-Nazi sentiment grew the U.S. government prohibited dealing with Germany after the start of World War II, “IBM chose not to cease doing business with or supporting the Nazi regime, but instead chose to hide the involvement of its U.S.-based operations.”

The Parallels Between IBM’s Assistance to the Third Reich and Apartheid South Africa

Just like the assistance that IBM provided to the Nazis, “the national identification system was highly customized, requiring close collaboration with the South African government; racial classification was a primary identifying characteristic; and the equipment was leased.”  What’s more, just like its attempts to continue business in Nazi Germany, “IBM repeatedly misled the U.S. government and its own shareholders regarding its ongoing activities that supported unlawful rights violations in South Africa.”

We hope the appeals court will recognize that “plaintiffs should not need to publish a 450-page book to defeat a motion to dismiss.” Plaintiffs should be permitted to amend their complaints. If they are, we believe they will be able to meet the legal standard set by the Supreme Court. If the Second Circuit decides to shut this case down, however, the judges will be sending a disturbing signal to corporations that they will not be held responsible for purposefully enabling oppressive governments to violate human rights. And that’s the wrong message to send.

Note: This blog was updated on 2/6/15 to clarify references to the work of author and historian Edwin Black.

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