EFF: don't let Cisco off the hook for participating in Chinese repression

The Electronic Frontier Foundation has filed an amicus brief in a lawsuit against Cisco, which seeks to call the company to account for actively participating in human rights abuses in China through its participation in China's network surveillance. In 2008, a leaked PowerPoint presentation showed that Cisco was participating in initiatives like "Combat Falun Gong Evil Religion and Other Hostilities." The case's plaintiff has been detained and harassed in China since filing his suit. EFF's amicus brief carefully lays out the case against Cisco and explains how they actively collaborated in programs of surveillance and repression.

Cisco is seeking to have the case dismissed at the outset. EFF’s brief, written with the assistance of our crack legal intern Colin Farlow, argues that, based upon the troubling facts asserted in the Complaint, the case should survive to discovery. First, EFF notes that the Complaint asserts sufficient activity by the American company, Cisco to survive as a case in the U.S. courts. Second, EFF points out that four key facts taken together would support a finding that Cisco aided and abetted or engaged in a conspiracy to violate international law. Specifically:

1) Marketing: The Complaint offers detailed allegations regarding the marketing, sale and support of the product for the facilitation of human rights violations by China against political dissidents. Most dramatically is the marketing presentation that asserts that the Golden Shield technology can help the Chinese government to “combat ‘Falun Gong’ evil religion and other hostilities.”

2) Customization: The Complaint alleges that Cisco customized its technologies for the purpose of facilitating human rights violations by China against dissidents,

3) Specific Knowledge: The Complaint highlights China’s well-documented practice of engaging in gross human rights violations against democracy activists, including Plaintiffs, and Cisco’s specific knowledge of China’s use of the technologies for those purposes,.

4) Ongoing Support: The Complaint offers detailed factual allegations confirming Defendants’ ongoing relationship with the Chinese government and ongoing support of the customized products.

The brief carefully notes that EFF does not believe that international human rights liability should attach simply for a company making a general purpose or dual purpose technology available to the public. What Cisco allegedly did here much more. Additionally, the brief notes that international human rights law is also limited in ways that will generally prevent growth of liability beyond sales to governmental entities and involvement with gross human rights violations.

EFF Supports Human Rights Case Against Cisco for Selling Surveillance Technologies to China

Notable Replies

  1. What about taking to task companies (like Cisco) complicit in the NSA's illegal spying? I mean, clean your own house before getting started on your neighbor's.

  2. So, as someone who works at EFF on international issues, I hope I can help a little with this. Firstly, this is an amicus in another litigant's case -- specifically, a group of Chinese activists who are using the US courts to sue Cisco for their involvement in human rights abuses in China. The activists are using the United States' Alien Tort Act, which allows the US courts to hear human rights cases brought by foreign citizens against US persons (including companies) for violations outside the US. The Alien Tort Act dates back to 1789.

    EFF isn't conducting the litigation, we're merely advising the court on our opinion. We do this a fair bit, both to make help the court include the wider ramifications of a decision on technology, both good or bad. We're supporting the activists' case, but also carefully defining some reasons to do so that would mean that, for instance, other technologists whose dual-use tools get used for repressive acts don't get caught up in the same precedent. A law that punished a company like Cisco for designing systems specifically to target dissidents, for instance, shouldn't also end up throwing Richard Stallman in jail because that software was compiled using his C compiler.

    As someone else mentioned, EFF is also the organization responsible for suing both the government and companies for complicity in the unconstitutional and illegal NSA projects. Supporting Chinese citizens suing Cisco for their involvement in the Golden Shield; US citizens suing the US government for its involvement in mass surveillance. These are two actions we can conduct in parallel, and I hope you will be able to support us as we do so.

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