Cisco and the Machinery of Chinese Repression
Contrary to Cisco’s claim that they “strongly support free expression and open communication on the Internet,” the networking giant helped design and aggressively marketed arguably the most oppressive censorship tool in existence. More than just restricting access to information, technology Cisco created for the Chinese government has been used to track dissidents who were later tortured and imprisoned by authorities.
Du Daobin, a prominent Chinese activist, understands the brutal effectiveness of Cisco’s creation, the so-called “Golden Shield.” In 2003, Chinese authorities arrested Du for posting pro-democracy articles online. Du was subsequently placed under house arrest for four years and then sent to prison for an additional three years. Authorities repeatedly tortured Du during his confinement. Without Cisco’s Golden Shield, the Chinese government would have lacked the ability to track and persecute Du.
Du filed a lawsuit in US federal court against Cisco under the Alien Tort Statute (ATS), a law that permits US courts to hear lawsuits alleging violations of a narrow list of universally recognized international laws. Actionable offenses under the ATS include aiding and abetting torture and prolonged arbitrary detention, both of which are allegations at issue in Du v. Cisco. Unfortunately, the US Supreme Court is considering limiting the jurisdictional reach of the statute, a move that would make it more difficult for victims of human rights abuses to obtain compensation for their suffering. In order to deter future misconduct and provide redress for Du and his family, the Court must uphold the ATS as means for victims to seek justice for atrocities perpetrated by US corporations in foreign countries.
Who is Du Daobin?
Du Daobin, the named plaintiff in Cisco, is a former Chinese government employee turned dissident writer. Originally a staunch communist, Du grew disillusioned with the Communist Party after witnessing the wanton massacre of civilians during the 1989 Tiananmen Square Protests. He channeled his newfound fervent desire for reform into writings critical of unjust Party policies. Hardly a radical, Du endured torture and prolonged arbitrary detention for daring to publicly address official corruption, growing inequalities, and restrictions on expression that fall far short of international standards.
The cruel retribution inflicted on Du in response to his unwavering commitment to social justice has caused him immense harm. By the time of his release in 2010, he suffered from “extreme malnutrition and cardiac issues.” Now a destitute single father, Du nevertheless remains a champion of free expression and a tireless advocate for the disadvantaged. Although prevailing in the pending lawsuit would not undo past harms, a legal remedy would provide needed financial resources and the dignity of recognition.
Cisco and the Golden Shield
More than a mere firewall, the “Golden Shield Project” is a sophisticated surveillance system that enables the government to censor specific search requests, monitor the activities of Internet users, and track dissidents offline. Establishing such extensive controls a decade ago in a country as vast and populous as China would have been unimaginable without assistance from a leading Western network equipment manufacturer.
Advanced technology developed by Cisco and the basic layout of China’s Internet infrastructure made the Golden Shield possible. The physical structure of Chinese cyberspace forces virtually all Internet contact between China and the outside world to flow through three chokepoints. Authorities use “tappers’ or “network sniffers” to monitor all information flowing through these portals. Although Chinese companies have since learned how to build this technology, the government originally hired Cisco to manufacture these devices.
Cisco also provided the government with a system of cutting-edge databases known as Policenet. Cisco’s Policenet connects the various agencies and levels of command within the Public Security Bureau and stores a wealth of information on countless Chinese citizens. This system enables authorities to identify citizens on the street through facial recognition technology and then instantaneously obtain an array of personal information. Such information includes political behavior, familial relationships, and Internet browsing history. This technology has played an integral role in official campaigns to capture and subsequently torture dissidents, including Du Daobin.
Although Cisco claims that they did not produce or market such technologies specifically for the Chinese government, leaked internal documents suggest otherwise. For example, Cisco used marketing materials to reassure the Chinese government that the goal of the Golden Shield is to “douzheng the evil falun gong cult and other hostile elements.” For those unfamiliar with Cultural Revolution era rhetoric, the verb “douzheng” in this context is laden with inflammatory implications invoking the practice of purging “class enemies.” In other words, Cisco used language from the Cultural Revolution to convince the Communist Party that the purpose of their product is to effectively persecute dissidents. Cisco also explicitly recognized that the Chinese government routinely sends political dissidents to slave labor camps. Moreover, contrary to the claim that the company merely provided standard equipment and services to the Chinese government, Cisco touted its commitment to providing ongoing training and support to Chinese officials on how to effectively identify and track individuals.
Cisco continues to profit handsomely from participating in China’s Golden Shield Project. In fact, the company generates an estimated annual profit of $500 million from operations in China and holds a 60% share of the Chinese market for routers, switches, and other sophisticated networking gear. Permitting Cisco to benefit from knowingly facilitating repression without accounting for foreseeable atrocities will only encourage other corporations to disregard human rights considerations when conducting business abroad.
The ATS and the Supreme Court
Du, along with 12 other plaintiffs, sought legal relief against Cisco in American federal court. In addition to state law causes of action, the plaintiffs in Cisco have invoked the ATS in alleging that Cisco aided and abetted the Chinese government in torturing and subjecting the plaintiffs to prolonged arbitrary detention in violation of international law. Enacted by many of the Founding Fathers during the First US Congress in 1789, the ATS provides American courts with the authority to hear lawsuits alleging a narrow list of violations of international law that occurred beyond US borders. Despite the statute’s noble history, the Supreme Court is considering limiting its applicability. The Court, however, should uphold the ATS as a means to seek justice against US corporations that commit or assist in the commission of human rights abuses in foreign countries. Failing to do so would leave many victims without legal recourse and eliminate a primary deterrent against abhorrent corporate behavior abroad.
The Supreme Court will decide two major issues related to the ATS during the current term: 1) whether US courts have jurisdiction to adjudicate cases alleging the violation of international law when the conduct at issue occurred in a foreign country; and 2) whether corporations are immune from liability for violations of international law.
Regarding the first issue, American courts already have jurisdiction in certain circumstances to hear cases involving allegations of misconduct that occurred outside the US when the defendant is an American. It seems incongruous to permit lawsuits for petty offenses that occur abroad while prohibiting lawsuits alleging egregious human rights violations; if an American could potentially face liability over a fender bender that happened in a foreign country, why should he avoid liability for committing torture?
Advocates of limiting the scope of the ATS argue that permitting American courts to hear lawsuits arising from conduct that occurred in a foreign country would damage US standing abroad. However, far from bolstering our image, allowing Americans to commit atrocities with impunity would almost certainly damage US foreign relations. Moreover, the US Department of State, Department of Commerce, and the Solicitor General all signed a legal brief in support of the plaintiff class in Kiobel v. Dutch Royal Shell, the ATS case currently before the Supreme Court. As such, chief foreign affairs policy-making bodies have indicated that the ATS serves US strategic interests.
It is also imperative that the Supreme Court continues to allow US courts to hear ATS claims involving US corporate defendants. Contrary to the claim of a lone federal circuit court, corporate tort liability has developed into a widely accepted international norm. Countries around the world have appropriately decided that the increasingly important role corporations have assumed in the global economy should entail attendant rights and obligations. Echoing the US Court of Appeals for the Seventh Federal Circuit, immunizing corporations from liability for violations of international law would make the US the true global outlier. Moreover, failing to recognize corporate liability under the ATS would signal that the American judicial system values the interests of corporations over the dignity of human beings.
Permitting corporate immunity would also create arbitrary distinctions among corporate and non-corporate defendants. Why should a group of individuals escape liability for committing torture merely because they filed documents of incorporation? Allowing a hypothetical “Torture, Inc.” to commit atrocities with impunity would make a mockery of human rights law.
Cisco needs to face the consequences of directly assisting the Chinese government in persecuting activists. Far from selling only standardized products without knowledge of their intended use, Cisco used Cultural Revolution era rhetoric to reassure the Chinese government that the Golden Shield’s purpose is to target dissidents.
Du Daobin deserves compensation and recognition for the suffering he endured. The Supreme Court, however, might issue a ruling that could make it more difficult for him and other similarly situated dissidents to obtain relief. In order to vindicate the rights of victims and uphold foundational American ideals, it is imperative that the Supreme Court preserves the ATS as means to seek justice against US corporations that commit human rights offenses abroad.