Back in 2011 we noted how a group of Falun Gong members filed suit against Cisco in San Francisco, alleging that Cisco held some culpability for the Chinese government’s crackdown on dissidents, critics, and others. According to the lawsuit at the time, Cisco “competed aggressively” for the contracts to design China’s Golden Shield system, “with full knowledge that it was to be used for the suppression of the Falun Gong religion.” The full, amended complaint (pdf) accused Cisco CEO John Chambers and two other senior executives of working with the CCP to find, eavesdrop on and track Falun Gong members.

The class action lawsuit leaned on a law known as the Alien Tort Statute, which allows non-US citizens to file human rights abuse claims in Federal court. But in 2014 a California court cited the U.S. Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., — stating that the Falun Gong members failed to cleanly show evidence that Cisco or its directors were directly tied to the human rights abuses and “interrogation.” The court again upheld that point in 2015:

“[T]here are insufficient allegations that defendants obtained a direct benefit from the persecution of Falun Gong practitioners,” Judge Davila said. “While plaintiffs allege that anti-Falun Gong features in the Golden Shield are lucrative to defendants and appealing to the Chinese government, there is no indication that defendants would earn a reduced profit if those features were absent from the Golden Shield system.”

Throughout this fight, the Electronic Frontier Foundation has consistently tried to argue that Cisco didn’t need to be physically present in China to aid in human rights violations via the use of its systems, designed and constructed in Cisco’s offices in San Jose, California. The group has also pointed repeatedly to marketing material and internal documents that show Cisco knew its systems would be used for surveillance and torture, though the EFF’s consistently had its amicus briefs (pdf) rejected by the court. In one, the EFF details Cisco acknowledges the construction of:

  • “A library of carefully analyzed patterns of Falun Gong Internet activity (or “signatures”) that enable the Chinese government to uniquely identify Falun Gong Internet users;
  • Highly advanced video and image analyzers that Cisco marketed as the “only product capable of recognizing over 90% of Falun Gong pictorial information;”
  • Several log/alert systems that provide the Chinese government with real time monitoring and notification based on Falun Gong Internet traffic patterns;
  • Applications for storing data profiles on individual Falun Gong practitioners for use during interrogation and “forced conversion” (i.e., torture);

This week the EFF filed yet another amicus brief (pdf) in which it urges the federal appeals court to reinstate the lawsuit:

“Cisco’s conduct is part of a growing trend of U.S. and European technology companies helping repressive governments become highly efficient at committing human rights violations,” said Cope. “We are asking the Ninth Circuit to recognize that victims of such abuses can seek to hold accomplices like Cisco accountable for their role in brutal persecutions.”

Attempting to hold Cisco accountable for violating U.S. law while doing business in China is obviously a pretty steep uphill climb. And while many would love to see companies like Cisco held responsible for willfully aiding in the surveillance and torture of a group of people whose biggest crime was compassion, others rightly worry that trying to dictate who companies can and can’t do business with is a troubling and ultimately fruitless affair. Still, the case continues to generate an interesting discussion on just where the lines of culpability and liability truly lie.

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