The Federal District Court in Maryland this week dismissed Du Daobin v. Cisco Systems, a case brought by Chinese dissidents alleging that Cisco knowingly customized, marketed, sold, and provided continued support and service for technologies as part of China's Golden Shield, a digital censorship and surveillance system used by the Chinese government to facilitate human rights abuses. EFF filed an amicus brief urging the court to let the case go forward and we also launched an activism campaign calling on Cisco to stand up for writer Du Daobin and human rights in China. We’re deeply disappointed by the court’s decision to dismiss the case.

While a tech company could not (and should not) be held accountable when governments misuse general use products for nefarious purposes, early evidence indicates that Cisco did much more. This included actively customizing, marketing and providing support for its monitoring and censorship technologies even as it knew that they would be used to identify, locate, and surveil Chinese democracy and religious freedom activists. The complaint also alleged that Cisco knew (as the State Department reports confirm) of China’s practice of unlawful detention, torture, and even killing of these activists. In EFF’s amicus brief, we argued that this initial evidence should be sufficient to allow the case to move forward.

The court decision was based mainly on issues not addressed by EFF in our amicus brief. Many of the issues we are most concerned with—namely, whether and how tech companies can be held to account for facilitating human rights violations—remain unresolved.

Are Corporations Really “People” Under the Law?

There have been a number of Supreme Court rulings that found corporations have similar Constitutional rights and protections as people. In particular, Citizens United v. Federal Election Commission, decided in 2010, reaffirmed the First Amendment protections for corporations, associations, and labor unions.

But even as corporations are treated as "people" under the law in many ways, companies are often not being held to account for their actions the way a person would be. We saw a striking example of this when the Supreme Court let Chevron off the hook for its role in killing peaceful protesters in Nigeria under the Torture Victim Protection Act.

Largely Sidestepping the Issues of Corporate Accountability

In the Du v. Cisco case, the Federal District Court in Maryland largely side-stepped the specific issue of when corporations can be held to account for building special technologies that are customized for repressive governments for the explicit purpose of tracking activists who then face human rights abuses like torture. The court's rulings on other legal arguments, however, are troubling for those would like to see basic accountability for those building the tools of repression. 

The court first ruled that that the question of Cisco's involvement in human rights abuses in China was a "political question" that should not be addressed by the courts and pointed to the fact that the export laws and regulations allowed Cisco to export these technologies as somehow precluding a court from providing a remedy to those who are harmed by them. This is incorrect—nothing about the claims raised by the plaintiffs challenged the export decisions made by the executive branch or the export laws passed by the legislature.

Next, the court ruled that the "act of state" doctrine forbid it from ruling on whether China had abused the human rights of the plaintiffs. This doctrine states that, in general, one country should not sit judgment on another government’s official acts within its own territory. But "act of state" doctrine only applies to public, official policies of another country. Since the Chinese government has repeatedly denied that human rights abuses like the detention and torture that the plaintiffs suffered here are its official policies, the court was wrong to dismiss this case under "act of state" doctrine.

Overall, the court’s decision fails to take into account that the U.S. government on all levels, and especially the State Department, has openly and repeatedly criticized China for the very abuses at issue in this case.  Moreover, neither the U.S. nor the Chinese government objected to the case going forward, something that usually happens when a case has actual political or foreign policy implications. For example, the most recent State Department report on human rights in China discusses the abuse and detainment of political prisoners like the plaintiffs:

Numerous former prisoners and detainees reported that they were beaten, subjected to electric shock, forced to sit on stools for hours on end, deprived of sleep, and otherwise subjected to physical and psychological abuse. Although ordinary prisoners were subjects of abuse, political and religious dissidents were singled out for particularly harsh treatment.

With regard to Internet surveillance and censorship, the same report stated that,

The CCP continued to increase efforts to monitor Internet use, control content, restrict information, block access to foreign and domestic Web sites, encourage self-censorship, and punish those who ran afoul of political sensitivities.

The report also noted that “Official monitoring focused on such tools as social networking, microblogging, and video-sharing sites.”

Cisco’s Assistance to China

The court also determined that the plaintiffs had not sufficiently alleged that Cisco created the Golden Shield technologies with the purpose of facilitating the abuses and gave "practical assistance" to the officials in those abuses. The court said, "the technology Cisco has allegedly customized and sold to China to assist them with these purported human rights violations is inherently neutral technology that can clearly be used in a variety of non-offensive ways."

On this point, EFF strongly disagrees and it seems that the court is willfully ignoring the allegations of the complaint. The complaint alleges both Cisco’s role in creating technology and providing assistance in ways sufficient to support the case proceeding to the discovery phase, where the extent of Cisco's knowledge and assistance could have been determined. For example, in one of the documents submitted as evidence, a marketing presentation created by Cisco to describe the benefits of its technology to the Chinese government noted that one of the goals was to "Combat Falun Gong evil religion and other hostilities." It is difficult to imagine a more direct acknowledgement and promotion of the use of a product for repression.

The Role of Tech in Upholding Human Rights

Technologies are being created and customized with the explicit purpose of helping repressive regimes track down, detain, torture and murder people. It’s time for Western companies and American officials to stop pretending this isn’t true.

Earlier this month, John Kerry met with a group of Chinese bloggers who urged him to speak out against Internet monitoring and censorship in China. According to the New York Times, Mr. Kerry, "said he had not heard the charges that American companies had helped the Chinese authorities maintain control over Internet access, but promised to look into the matter."

The protestations of ignorance from American officials and corporations like Cisco ring false to us. But we're happy to provide information to the Secretary of State should he need it.

It’s time for companies and the government to acknowledge how technology is being customized for the abuse of human rights. Let’s stop ignoring the problems and work on policies to prevent and reverse this dangerous trend.  

To that end, EFF has developed "Know Your Customer" standards that can help companies avoid participating in human rights abuses. 

We don’t need to wait for the courts to get this right; forward-thinking companies can adopt these standards right away, and users of technology everywhere can call on companies with which they do business to adhere to these standards of respecting human rights.