February 26, 2012 | By Cindy Cohn and Trevor Timm

Upcoming Supreme Court Case May Be Key To Holding Spy Tech Companies Responsible For Human Rights Violations

The world’s attention has recently turned to the question of how to hold companies accountable for knowingly marketing, selling and adapting the tools of surveillance to repressive regimes. U.S. and E.U. companies’ equipment has been linked to torture and other human rights violations in many Middle East and North African countries, along with longstanding cases involving similar allegations in China. Most recently, evidence suggests prominent American journalist Marie Colvin may have been tracked via her satellite phone before being killed by government forces in Syria. Public pressure on companies to “Know Your Customer” and take other actions to avoid having their tools used as part of human rights violations is intensifying. The European Parliament has begun the first steps in banning sales of this technology to authoritarian governments, and the U.S. Congressman Chris Smith (R-NJ) introduced a bill, the Global Online Freedom Act, which is in part aimed at this problem.

But there is another avenue for justice: the U.S. courts. 

Aiding and abetting, and conspiracy to commit crimes, have long been illegal under U.S. law, and it’s not difficult to see how surveillance tools used to commit human rights violations — especially ones specifically and knowingly modified or supported by a company — could qualify under these or other longstanding laws. In fact, there are two pending cases in the U.S. right now raising those claims against Cisco based on evidence that the company knowingly marketed, sold and specially adapted and tools that the Chinese government uses to target Chinese democracy activists and members of the Falun Gong religious minority.

But the fate of two of the strongest legal tools to help dissuade technology companies from becoming “repression’s little helpers” may turn on a pair of cases before the U.S. Supreme Court now. The two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Rojaub, ask a question that seems fairly ironic given the Supreme Court’s recent decision in Citizens’ United: Are corporations “individuals” for purposes of liability under human rights laws? 

That’s right. Two years after holding that corporations must be allowed to fully participate in funding candidates in U.S. elections, the Supreme Court will consider whether corporations are nonetheless completely immune from claims alleging that they helped commit gross human rights abuses.1

There’s nothing particularly novel about corporate liability for facilitating the bad acts of others. While a corporation cannot go to jail, corporations are regularly held civilly and even criminally liable for involvement in the offenses done by others. Thus, a company that facilitates money laundering can be held liable, and, as EFF members well know, a company can also be secondarily liable for the copyright infringements of others. The two cases concern two different laws: the Alien Tort Statute (ATS) in Kiobel and the Torture Victim Protection Act (TVPA) in Mohamad. While the constitutional analysis under the First Amendment in Citizens United and the statutory interpretation of the TVPA and ATS in these cases are not exactly the same, the public’s concern that the Supreme Court may embrace a world in which corporations have the all rights, but none of the responsibilities, of ordinary people is very real.

How did we get here?  In the United States, people have long been held liable for knowingly assisting in human rights abuses even when they are committed overseas. Under case law going back to Filártiga v. Peña-Irala in 1979, people who helped foreign governments engage in torture, summary execution or slavery have been held responsible in both civil and criminal courts. Recently these same claims, on the same standard, have been applied to companies, ranging from one using slave labor to build a pipeline in Burma, to one who helped in the wrongful hanging of Nigerian human rights hero Ken Saro-Wiwa. The cases are not easy, and only apply to a set of extreme human rights violations like torture and execution, but they provide a measure of justice to those who have faced horrific human rights abuses, and hopefully, a strong disincentive for corporations to get involved in the dirty business of assisting in human rights abuses abroad in the first place.2

This is where mass surveillance companies selling technology to authoritarian regimes come in. For months now, we have seen increasing evidence that U.S. and E.U.-based companies have been selling spying technology that has led to the torture and summary execution of journalists, human rights advocates, and democratic activists.

In Bahrain, dozens of recent political prisoners have testified that government officials tortured them before reading back transcripts of text messages and emails likely obtained through these technologies. In Syria, just as the government was ramping up its deadly crackdown on democratic protests, the Italian company Area SpA rushed to complete a “monitoring center” that could not only read every email in the country, but track citizens’ locations via GPS in virtual real-time. Technology from U.S. based companies Hewlett Packard and NetApp have also been linked to Syria, according to Bloomberg. And in Libya, the Wall Street Journal reported that, “a surveillance center in Tripoli provides clear new evidence of foreign companies' cooperation in the repression of Libyans under Col. Gadhafi's rule.” Similar reports have emanated from Iran.

Despite these damning investigations from Bloomberg and the Wall Street Journal, dozens of companies are still operating with little oversight or accountability if they knowingly sell and facilitate their products for use to commit these human rights abuses. On the contrary, business appears to be booming; the market for these products has increased to $5 billion a year.

Those looking for tools to help hold companies accountable for selling the surveillance state to foreign despots should be watching the Supreme Court closely. Kiobel and Mohamad will be argued February 28, and should be decided by late June. More information about the cases is available at corporateaccountabilitynow.org. While some judicial avenues will still exist even if these cases fail, if the Court does require the same responsibilities of corporations not to torture that it already requires of humans, it may help hold these surveillance companies accountable in the courts when they are responsible for assisting in human rights atrocities around the world, and more importantly, it may hopefully help dissuade companies from getting into bed with these repressive governments in the first place. 

  • 1. There’s nothing particularly novel about corporate liability for facilitating the bad acts of others. While a corporation cannot go to jail, corporations are regularly held civilly and even criminally liable for involvement in the offenses done by others. Thus, a company that facilitates money laundering can be held liable, and, as EFF members well know, a company can also be secondarily liable for the copyright infringements of others.
  • 2. Note that EFF is counsel in one of the cases, Bowoto v. Chevron, involving Chevron’s helicoptering in, overseeing and payment of Nigerian forces who opened fire on protesters in Nigeria, and in that capacity we also signed on to an amicus brief in the Supreme Court urging the Supreme Court to find that corporations can be liable under the TVPA.

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