People around the world have been searching for ways to hold accountable companies that build tools for government repression. From massive surveillance systems to state-sponsored malware, governments around the world are increasingly using technology to locate, track, and engage in human rights abuses against disfavored communities, journalists, and activists.
In a tremendous victory for the victims of those tools of repression, the Ninth Circuit cleared a path of legal accountability for American technology companies who build tools that facilitate human rights abuses by foreign governments, in a case called Doe I v. Cisco Systems. EFF filed multiple amicus briefs in the case, including in the Ninth Circuit.
Cisco is just one of many American technology companies that have been complicit in facilitating human rights abuses in foreign countries. We applaud the Ninth Circuit in helping ensure that the key statute in the case, the Alien Tort Statute (ATS), remains an important mechanism for holding companies accountable when they choose profit over human lives.
The Ninth Circuit allowed victims to sue tech giant Cisco Systems in a long-running case seeking redress for the company’s role in building and deploying the “Golden Shield,” also referred to as “The Great Firewall of China.” It’s a vast surveillance system that Cisco began building in the late 1990s and that the Chinese government used to violate the human rights of disfavored minorities, including members of the Falun Gong religion, who are the plaintiffs in the case.
The thirteen plaintiffs alleged arrest, detention, and torture, including of themselves and family members, at least one of whom died by beating while being detained. The claims are horrific and echo reports by the U.S. State Department and many human rights NGOs. They include claims that the plaintiffs were placed in forced labor camps, beaten with steel rods, shocked with electric batons, and endured sleep deprivation and violent force-feeding. The plaintiffs also alleged that their private emails, text messages, and other information—intercepted by the Golden Shield—were shown to them and used as part of their torture and forced conversion, including threats to their family members and others who communicated with them.
The Ninth Circuit’s opinion, which comes after a long wait, makes several critical determinations:
- U.S. corporations can be held liable under the ATS, which allows foreign persons to sue for human rights abuses in U.S. courts. ATS defendants need not only be natural persons.
- A company can be held responsible for “aiding and abetting” human rights abuses and does not have to commit the abuses directly.
- A company does not need to have a purpose to facilitate human rights abuses. It only needs to have knowledge that its assistance helped in human rights abuses.
- When deciding whether a company had done enough to constitute “aiding and abetting,” a court can look at the cumulative impact of many corporate actions and need not find one that alone constitutes sufficient assistance.
- The fact that a technology has legitimate uses does not shield a company from liability for other uses that led to human rights abuses. Thus, the fact that China also used the Golden Shield for legitimate law enforcement purposes does not immunize Cisco from liability for its knowing facilitation of human rights abuses. This is a critical point, as we often see companies rejecting responsibility for their surveillance technologies simply because they have dual or multiple uses.
- The actions Cisco took in the United States were sufficient to allow the case to go forward here. The court said: “Plaintiffs allege that Cisco designed, developed, and optimized important aspects of the Golden Shield surveillance system in California; that Cisco manufactured hardware for the Golden Shield in California; that Cisco employees in California provided ongoing maintenance and support,” among others.
There’s much more in the opinion, including allowing a claim to move forward against Cisco’s top executives under another law, the Torture Victim Protection Act (TVPA). Overall, the Ninth Circuit’s opinion is a tremendous victory for human rights and for those who want to ensure that U.S. companies stop helping repressive governments.
Taking a Deeper Dive
For those who want to understand the complex set of legal doctrines that the plaintiffs had to overcome to survive even at this early stage, below is a deep dive into a several aspects of the Ninth Circuit’s critical rulings.
As with so many efforts to advance human rights around the world, this case has been an exercise in patience. The plaintiffs first filed their case in 2011 and have faced multiple motions to dismiss by the defendants. The currently operative complaint is the Second Amended Complaint (third overall). The case was paused several times as the Supreme Court considered three important cases related to the ATS: Kiobel v. Royal Dutch Petroleum (2013), Jesner v. Arab Bank (2018), and Nestlé USA v. Doe (2021).
As a specific matter, the Ninth Circuit held that the plaintiffs’ ATS claims may move forward against the corporate defendant Cisco, and one plaintiff’s claims under the TVPA against individual Cisco executives, reversing the district court. Unfortunately, the court affirmed the district court’s dismissal of the plaintiffs’ ATS claims against the Cisco executives.
The Ninth Circuit Made Clear That American Corporations Can Be Sued Under the ATS
One argument that Cisco and other companies have made to try to escape accountability is that only people, not companies, can be sued under the ATS. This issue was implicitly addressed by the Supreme Court in Nestlé USA (where EFF filed an amicus brief). Five justices in that case agreed that the ATS should apply to U.S. companies, even though the Court had held in Jesner that the statute does not apply to foreign companies. Putting to rest this argument that places companies above the law, the Ninth Circuit expressly concluded that U.S. companies may be sued under the ATS, preserving the statute as a critical tool of corporate accountability for facilitating human rights abuses. (p. 22 of the opinion)
The Ninth Circuit Held That “Aiding and Abetting” Is Its Own Cause of Action Under International Law
The ATS is a simple jurisdictional statute that provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Thus, in every ATS case, a court must ensure that the underlying claim exists in international law before it can go forward, whether that’s a substantive claim like torture or child slavery, or an indirect form of liability such as aiding and abetting a substantive violation. The Supreme Court has urged caution in expanding the claims available under the ATS, which companies like Cisco have tried to use to slam the courthouse door on victims of human rights abuses.
The Ninth Circuit conducted an extensive analysis and concluded that “aiding and abetting” liability is firmly established in international law and thus available as an ATS claim:
[I]n agreement with every circuit to have considered the issue, [we conclude] that aiding and abetting liability is a norm of customary international law with sufficient definition and universality to establish liability under the ATS [and] does not raise separation-of-powers or foreign policy concerns. (pp. 23-24)
The Ninth Circuit Adopted a More Accessible Standard of “Knowledge” for Aiding and Abetting
Crucially, the Ninth Circuit made clear that a company like Cisco need not share an abusive “purpose” with a government—something that Cisco and others have argued. Instead, the court held that a company’s “knowledge” that it is assisting in the commission of human rights violations is sufficient. This is a big win for human rights victims, since a knowledge standard is easier to meet than a purpose standard, and it can be particularly difficult to prove a “purpose” for a corporation. Specifically, the Ninth Circuit explained:
The knowledge mens rea [i.e., mental state] standard is satisfied when a defendant acts with knowledge that the defendant’s actions will assist in the commission of a crime or with awareness of a substantial likelihood that the defendant’s acts would assist the commission of a crime. … An accused’s statements regarding the purposes and goals of the project for which they are providing assistance can establish awareness that crimes are likely to be committed. And when ongoing abuses are common knowledge, knowing action may be imputed to the defendant. (p. 59) (emphasis added)
The Ninth Circuit went on to hold that Cisco meets this “knowing assistance” (p. 39) standard. The company’s marketing materials and internal reports revealed that it knew that its customer, the Chinese government, wanted to target Falun Gong practitioners specifically—first through surveillance and identification, then physical apprehension, torture, and coerced renunciation of their religion. Additionally, shareholder resolutions, the U.S. State Department, news outlets, and other entities all called out the abuse the Falun Gong were experiencing in the late 1990s and early 2000s at the hands of the Chinese government, often referred to as douzheng, a Chinese word for persecution. The court stated:
[T]he complaint alleges facts demonstrating that Cisco was aware of the [Communist] Party and Chinese authorities’ goal to use Golden Shield technology to target Falun Gong adherents and that it was widely known that the authorities’ efforts involved significant and ongoing violations of international law, especially torture and arbitrary detention. We conclude that Plaintiffs’ allegations, accepted as true, are sufficient to state a plausible claim that Cisco provided essential technical assistance to the douzheng of Falun Gong with awareness that the international law violations of torture, arbitrary detention, disappearance, and extrajudicial killing were substantially likely to take place. (p. 62) (emphasis added)
In a footnote, the Ninth Circuit agreed with an argument we made in our most recent amicus brief, that Cisco’s alleged actions also meet the higher “purpose” standard. The court stated:
We note that we would likely reach the same conclusion were we to apply the purpose mens rea; these same allegations, accepted as true, are likely sufficient to state a plausible claim that Cisco acted with the purpose of facilitating the violations of international law. … We have held that where a defendant ‘supported’ and ‘benefitted’ from the commission of a violation, the purpose mens rea standard is satisfied … If true, then Cisco supported the douzheng and benefitted from specifically tailoring its assistance, including software, training, and messaging, to the illegal goals of the [Communist] Party and Public Security. Had Cisco not tailored its assistance in this way, it would not have obtained the lucrative contracts. (footnote 22, pp. 62-63) (emphasis added)
We argued in our brief that Cisco’s financial interests were aligned with human rights violations: “it is far more reasonable to infer that if the Golden Shield had been designed as a simpler, less customized, general law enforcement tool, then Cisco’s fee would have been smaller … [B]y being compensated for providing the Chinese government with an essential means of achieving its ambitious persecutory goals, Cisco directly benefited from the Chinese government’s campaign of persecution against the Falun Gong.”
The Ninth Circuit Held That Cisco's Actions in the U.S. Were Sufficient to Apply the ATS, Even If the Principal Human Rights Abuses Were in China
For an aiding and abetting claim under the ATS, Cisco needed not only the right mental state, it also had to provide “assistance to the principal [i.e., the Chinese government] with substantial effect on an international law violation.” (p. 39) And the actions constituting substantial assistance had to have occurred largely in the United States. The Ninth Circuit held that both occurred.
Importantly, the court found that no single act by Cisco needed to satisfy the substantial assistance standard. Instead, “In assessing the effect of a defendant’s action, courts consider the cumulative contribution a defendant makes to the alleged violation—not whether each individual act had substantial effect.” (p. 42) (emphasis added)
The Ninth Circuit considered the plaintiffs’ detailed allegations of how Cisco designed and built the Golden Shield to meet China’s persecutory goals, and how this technology provided the “essential means” (p. 46) that allowed the Chinese security forces to target Falun Gong practitioners. The court concluded:
[G]iven Cisco’s significant technological assistance; the use of such technology to identify, detain, and torture Falun Gong practitioners; and the timing of that assistance during a period in which Chinese authorities did not have equivalent technological tools, we conclude that Plaintiffs have plausibly alleged that Cisco provided assistance with substantial effect on Chinese authorities’ violations of international law. (pp. 47-48) (emphasis added)
In doing so, the Ninth Circuit expressly rejected Cisco’s argument that it should be immune from liability because its surveillance technology could be and was used for legitimate law enforcement purposes. The court stated:
Here, although Golden Shield technology could be and was used for some legitimate law enforcement activities, a multipurpose use and the general legality of providing crime control software does not render the assistance Cisco provided any less substantial in its facilitation and enhancement of Chinese authorities’ persecution of Falun Gong in violation of customary international law. (p. 49)
As supporters of technology and believers in the promise of technology to be a force for good, a key point we made in our amicus brief is that merely providing a tool that can be misused is not enough for ATS liability. We distinguished what Cisco did in this case, which was to design and build a customized surveillance product that the company knew would have a substantial effect on the ability of the Chinese government to engage in violations of human rights. The Ninth Circuit’s ruling is consistent with this line for liability.
Finally, the Ninth Circuit considered whether enough of Cisco’s conduct occurred in the United States to allow the case to go forward here. This is because the Supreme Court has held that ATS claims must “touch and concern the territory of the United States,” and that mere “general corporate activity” in the U.S. is not enough.
The Ninth Circuit held that Cisco had done enough in the U.S. to warrant a case here—a crucial holding after the Supreme Court’s further narrowing of the ATS in Nestlé USA. The court summarized:
In sum, Plaintiffs allege that Cisco designed, developed, and optimized important aspects of the Golden Shield surveillance system in California; that Cisco manufactured hardware for the Golden Shield in California; that Cisco employees in California provided ongoing maintenance and support; and that Cisco in California acted with knowledge of the likelihood of the alleged violations of international law and with the purpose of facilitating them … [T]he domestic activities alleged here constituted essential, direct, and substantial assistance for which aiding and abetting liability can attach. So, with regard to corporate defendant Cisco, Plaintiffs’ allegations support application of the ATS. (p. 68-69) (emphasis added)
With regard to U.S.-based design of a technology system deployed abroad, the Ninth Circuit adopted an argument we made in our amicus brief, that the case against Cisco was similar in this way to another case in New York, Balintulo v. Ford (2015), where IBM (along with Ford) was sued for creating a national ID system that facilitated the South African government’s apartheid regime.
As the Ninth Circuit wrote, “The Second Circuit concluded that ‘designing particular technologies in the United States that would facilitate South African racial separation’ would be sufficient” to allow a case in the U.S. Just as we argued, the Ninth Circuit concluded: “The design and provision of hardware and software in Balintulo closely resembles what Plaintiffs here allege to have occurred in San Jose.” (p. 70)
Sending a Message
EFF is thrilled that, after 12 years, the plaintiffs are finally able to move forward with their ATS claims against Cisco Systems. They will now have the chance to conduct discovery and collect more evidence to ensure that Cisco is held accountable for building the tool that was so integral to their suffering.
More importantly, we hope this decision sends a message to the other companies who have been building and providing surveillance, spying, and other equipment and services to foreign governments that are being used to assist in human rights abuses. No company should be able to escape accountability for putting profits over people.