By Brian Pierce*
At what point does a corporation cross the line between engaging in a legal, arms-length commercial transaction with a known human rights violator and becoming complicit in that human rights violator’s acts? This question has been presented again and again by various suits filed under the Alien Tort Statute (also sometimes referred to as the “Alien Tort Claims Act”). Victims of human rights abuses in Iraq, Cote D’Ivoire, South Africa, and elsewhere have pursued claims under the ATS.
The Human Rights Law Foundation (HRLF), where I work, is proud to participate in this movement to develop the ATS as a practical mechanism for holding accountable in U.S. courts those who are complicit in the most grave human rights violations carried out around the world. HRLF is representing a group of plaintiffs who were the victims of torture and other serious human rights abuses in China as a result of their status as adherents of Falun Gong, a peaceful spiritual practice common in China, which the Chinese Communist Party has targeted for persecution since the late 1990s. These plaintiffs are pursuing claims against the American network technology company Cisco Systems, Inc., as well as some of its executives, for its role in designing, implementing, and servicing key components and features of China’s “Golden Shield,” a gargantuan system of high-tech Internet surveillance and crime control. In 2008, a set of internal Cisco documents was leaked which explicitly identified the targeting of Falun Gong as a commercial opportunity for Cisco and a primary objective of the Golden Shield.
The text of the ATS is concise enough to be quoted here in full: “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.” Passed into law as part of the Judiciary Act of 1789, the ATS was rarely applied until human rights and environmental groups began using it in the 1980s to pursue claims of violations of international law. In 2003, the Supreme Court handed down a landmark decision in Sosa v. Alvarez-Machain which opened the door for certain claims under the ATS to go forward, subject, in the words of Justice Souter, “to vigilant doorkeeping.”
The specific issues presented by HRLF’s suit against Cisco are sure to continue to vex courts and legislative bodies for years to come. As the New York Times has recently reported, the U.S. government is growing more and more concerned about the export of Internet surveillance technology to governments engaged in widespread censorship, surveillance, and hacking. HRLF’s case against Cisco, currently on appeal before the Ninth Circuit, will be an important test of how courts will handle situations where an American technology corporation is alleged to have knowingly facilitated widespread human rights abuses abroad through the sale of its products and services.
*Human Rights Law Foundation, Litigation Coordinator