Suit over Cisco’s role in China’s ‘Great Firewall’ must proceed, advocacy group says

A Maryland federal court should hear a lawsuit accusing U.S.-based Cisco Systems of selling surveillance technology to China that it allegedly knew would be used to commit human rights abuses, an Internet rights advocacy group says.

The Electronic Frontier Foundation filed an amicus curiae brief in the U.S. District Court for the District of Maryland lawsuit lodged by Du Daobin and other pro-democracy Chinese activists.

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People use computers in an internet cafe in Xichang, southwest China's Sichuan province November 24, 2007.

The activists say they were arrested, unlawfully detained and prosecuted for publishing Internet articles criticizing the Chinese Communist Party and supporting human rights and democratic reform.

They say the Chinese government targeted them for their dissenting political views and published articles by using the surveillance and Internet tracking technology that Cisco provided to the country for this purpose.

The plaintiffs seek to hold Cisco responsible for its sale, marketing and ongoing support of Internet routers and other hardware used in China’s so-called Golden Shield Project, also known as the Great Firewall of China.

Cisco asked the federal court in July to dismiss the suit for lack of jurisdiction, saying it involves conduct that allegedly occurred outside the United States.

(Click here to read the motion to dismiss on Westlaw.)

EFF, however, says it has been studying “the use of Western surveillance technologies to facilitate human rights abuses in repressive regimes” and argues that the District Court has jurisdiction to hear the activists’ claims.

(Click here to read the amicus brief on Westlaw.)

The lawsuit charges Cisco and its officials with violating the Alien Tort Statute, 28 U.S.C. § 1350, which gives U.S. federal courts jurisdiction to hear cases about international law violations.

The activists said in an amended complaint, filed in June, that Cisco and its officials knew the surveillance technology it sold to the Chinese government would be used to track political dissidents’ Internet activity and persecute them in violation of international law.

Additionally, the company marketed its Internet products for this specific purpose, the amended complaint says.

In its dismissal motion, Cisco pointed to an April U.S. Supreme Court ruling that limited the Alien Tort Statute’s reach.  In Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), the high court ruled that federal courts may only hear claims under the statute that “touch and concern” this nation.

EFF argues that the activists’ suit sufficiently meets this “touch and concern” test because it alleges that Cisco and not its Chinese subsidiary:

•             Sold and marketed products that it knew would be used to commit human rights violations.

•             Customized the Internet networking products it sold to China to help commit human rights violations.

•             Provided ongoing support for a product that it knew the Chinese government used to commit human rights violations.

“American law, including the Alien Tort Statute and ordinary tort law, is available to help ensure that Americans, including American companies, are not actively involved in developing and selling high-technology products that facilitate gross human rights violations by repressive regimes,” the brief says.

Therefore, the Chinese activists have sufficiently alleged facts that support a claim against the company and its officials, EFF argues.

“EFF does not support ATS liability for vendors who merely sell technologies that are misused later,” the brief says.  “The complaint plausibly alleges something different: an ongoing and intertwined relationship between defendants and the Chinese government, involving support, customization and development of the technologies to facilitate human rights abuses.”

Rather than dismiss the complaint, the District Court must allow the parties to conduct discovery to reveal the extent of this involvement by Cisco and its officials, the advocacy group says.

Du et al. v. Cisco Systems Inc. et al., No. 8:11-cv-01538, amicus brief filed (D. Md., Greenbelt Div. Aug. 15, 2013).