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
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