Doe v. Cisco
Privacy International filed an amicus brief to the United States Court of Appeals for the Ninth Circuit in a case challenging the use of Cisco technology for the persecution of the Falun Gong minority in China.
Case name: Doe v. Cisco Systems Inc.
Court: United States Court of Appeals for the Ninth Circuit
Application no.: No.15-16909
On 11 January 2016, Privacy International, together with EFF and Article 19, filed an amicus urging the US 9th Circuit Court of Appeals to reinstate a lawsuit brought by Chinese Falun Gong members and their families against Cisco under the Alien Tort Statute for its complicit role in human rights abuses perpetrated by the Chinese government. The lawsuit had been previously dismissed by a US Federal Court in September 2014 on the grounds that the allegations did not have sufficient US ties for a US court to hear the claims under the Alien Tort Statute.
In the original lawsuit, the claimants alleged that the Cisco-developed “Golden Shield” system (also known as The Great Firewall), which was custom-built for China, was an essential component of the government’s persecution against the Falun Gong in that it enabled the Chinese government to identify, track and detain Falun Gong members. Among other features, the technology developed by Cisco included a library of analysed patterns of Falun Gong Internet activity geared towards identifying Falun Gong Internet users, and log/alert systems providing the Chinese government with real time monitoring and notification based on Falun Gong practitioners' internet traffic patterns.
The amicus brief argued that the Federal Court had erred in dismissing the lawsuit. In particular, the Federal Court's interpretation of the "touch and concern" test - which must be met in order to displace the presumption against extra-territorial application of the Statute - effectively foreclosed liability for aiding and abetting. The fact that the Cisco technology used by China to persecute Falun Gong practitioners was designed and customised for Chinese government use in the US was sufficient to meet the test. Furthermore, reasonable inferences could be drawn that Cisco knew the purpose for which its technology would be used based on the fact that it (i) knew the human rights abuses perpetrated by the Chinese government against the Falun Gong, (ii) knew that the Chinese government was seeking a surveillance tool to target the Falun Gong specifically and (iii) marketed its product accordingly.
In April 2017, the claimants in this case asked the 9th Circuit Court of Appeals to revive the allegations, to no avail.