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Doe v. Cisco Systems, Inc.

Detailed Case Summary and Documents

Doe v. Cisco Systems, Inc. is a case currently being litigated in the Northern District of California against Cisco Systems, Inc., a major American network technology corporation. Falun Gong believers filed the case based on their subjection to serious human rights abuses in China through the use of the “Golden Shield” and especially its anti-Falun Gong systems. The Golden Shield is an unprecedented network security system used for the widespread censorship, surveillance, identification, tracking, apprehension, and torture of Chinese dissidents. Cisco has been the major provider of network security “solutions” in China since the late 1990’s.

In the mid to late 1990s, Communist Party and officials of China’s Ministry of Public Security proposed a “Golden Shield” project to include technological capabilities for China’s security forces. At the same time, the Chinese Communist Party desired to upgrade the technological capabilities of Chinese security to single our various dissident groups for persecution, including Falun Gong, then well known as its “number one” enemy. The design of the Golden Shield, prepared by Cisco in San Jose, reflects these goals in two major platforms: the “Targeting Criminal Activities Platform” that covers all systems intended for ordinary criminal justice activity; and the “Maintenance of Social Stability Platform” that includes a subsystem for Tibetans, Uyghurs, democracy activities and human rights lawyers, et cetera. Most prominent among these systems are the anti-Falun Gong systems.

Plaintiffs allege that the anti-Falun Gong systems designed, serviced and implemented by Cisco were used by Chinese security and Communist Party officers to wrongfully detain, torture and harm them to force them to relinquish their practice of their religion in China. They further allege that these crimes could not have occurred without the design of the Golden Shield by Cisco and the assistance Cisco provided through its services, upgrades, and implementation.

Complaints that Cisco is complicit in these abuses have repeatedly fallen on deaf ears, and Cisco continues to work with Chinese security officials to this day. Litigation under the Alien Tort Statute is one of the few remaining tools to ensure Cisco is held accountable for its conduct.

Proceedings

After briefings and a March 21, 2014 hearing, the district court granted the Defendants’ Motion to Dismiss on September 5, 2014. Plaintiffs filed Notice of Appeal. On January 4, 2016, Plaintiffs-Appellants filed their Opening Brief and an Excerpted Record (ER), arguing that the Defendant has mischaracterized the pleading standard and Plaintiffs’ allegations; that Plaintiff-Appellants had adequately alleged aiding and abetting liability under the Alien Tort Statute (ATS); that Plaintiff-Appellants’ claims were not barred by the Kiobel presumption against extraterritoriality. Amicus curiae briefs were filed by Ambassador David Scheffer (see Amicus Curiae Brief of Ambassador David Scheffer), the Electronic Frontier (see Amicus Curiae Brief of Electronic Frontier); and Earth Rights and the Center for Constitutional Rights (see Amicus Curiae Brief of Earthrights and the Center for Constitutional Rights). The 9^th Circuit Court heard oral arguments of the case on April 18, 2017. Before issuing their decision, the court ordered the suspension of the case pending the resolution the Supreme Court of the case Jesner v. Arab Bank, PLC, No. 16-499, 2018 WL 1914663 (Apr. 28, 2018), and then the possible Supreme Court proceedings in Doe v. Nestle, No. 17-55435.

Following the Supreme Court’s decision in Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), the 9th Circuit requested supplemental briefing from the parties. On July 22, 2021, Plaintiffs-Appellants filed a supplemental brief explaining that unlike in Nestlé, their case can proceed because their complaint contains detailed allegations as to how Cisco employees in the United States knowingly designed, developed, and customized the system used to facilitate their abuse. On August 12, 2021, Defendants-Appellees filed their supplemental brief.

The 9th Circuit held a second oral argument on October 20, 2021.

On July 7, 2023, the Ninth Circuit reversed the district court on nearly all arguments in a major victory for Falun Gong practitioners subjected to torture and other human rights abuses in China.  As the court summarized, the Plaintiffs plausibly alleged “that Cisco provided essential technical assistance to the douzheng [crackdown] of Falun Gong with awareness that the international law violations of torture, arbitrary detention, disappearance, and extrajudicial killing were substantially likely to take place.”

In a thorough analysis, the court held that the Plaintiffs had sufficiently stated their claims against Cisco under the Alien Tort Statute (ATS).  First, the court rejected Cisco’s argument that corporations cannot be liable under the ATS, noting that five Justices of the Supreme Court disagree.  Second, the panel held, “in agreement with every circuit to have considered the issue, that aiding and abetting liability” is a definite and universal norm under customary international law and that claims based on aiding and abetting liability do not raise “separation-of-powers or foreign policy concerns.”  In doing so, the court flatly rejected Cisco’s argument that the case would interfere with congressional and presidential policies, reasoning that the decision not to generally prohibit the export of computer networking technology does not absolve a corporation from “designing and selling certain” technological tools under conditions where the sale aids and abets grave violations of international law.

Third, the court determined that persons are liable for aiding and abetting when they knowingly provide “assistance, encouragement, or moral support that has a substantial effect on the crimes.”  And the panel found that the Plaintiffs’ allegations meet this standard.  Specifically, the Plaintiffs alleged that Cisco designed customized features of the Golden Shield that “greatly enhanced the capacity of Party and Chinese security officers to coordinate their monitoring and forced conversion — torture — of Falun Gong practitioners.”  And as to Cisco’s awareness of the crimes, the panel noted, among other things, the Plaintiffs alleged Cisco’s own marketing materials referred to China’s goal of using the technology to “douzheng” or crackdown on Falun Gong and other Cisco materials “described Falun Gong practitioners as ‘viruses’ and ‘pestilence,’ mirroring Party propaganda.”  The panel also clarified that if it were applying a purpose standard under international law, its conclusion would likely be the same.

Fourth, the panel held that the presumption against extraterritoriality did not bar the Plaintiffs’ claims against Cisco.  Unlike other cases where much of the conduct occurred abroad, the court held that this case involved a domestic application of the ATS because “Plaintiffs allege that Cisco designed, developed, and optimized important aspects of the Golden Shield surveillance system in California; that Cisco manufactured hardware for the Golden Shield in California; that Cisco employees in California provided ongoing maintenance and support; and that Cisco in California acted with knowledge of the likelihood of the alleged violations of international law.”  By contrast, the panel affirmed the dismissal of the Plaintiffs’ ATS claims against Cisco executives John Chambers and Fredy Cheung because they did not sufficiently concern unique conduct in the United States.

Finally, the court reversed the district court’s dismissal of Plaintiff Charles Lee’s claims against John Chambers and Fredy Cheung under the Torture Victim Protection Act.  The panel looked to the text and legislative history of the law to determine that it permits claims for aiding and abetting torture and further found that Plaintiff Lee had plausibly alleged Chambers and Cheung aided and abetted torture.

Current Status

On September 3, 2024, the Ninth Circuit denied Cisco’s petition for rehearing and rehearing en banc.  Co-counsel for Plaintiffs hailed the decision and stated “Although the [Supreme] Court has narrowed Alien Tort Statute jurisdiction over the years, we believe the allegations in our case overcome the Court’s restrictions on extraterritorial cases and our claims are at the core of human rights claims found actionable under the ATS.”  With the denial of rehearing, the panel’s decision remains intact.

Documents

Media Coverage

•”Suit Claims Cisco Helped China Pursue Falun Gong,” by John Markoff

•”Enabling China,” in the New York Times

• Huffington Post by Katrina Lantos

• ‘The Hijacked Potential of China’s Internet’ by He Qinglian (PDF format)

• ‘China’s Golden Shield: Corporations and the Development of Surveillance Technology’ by Greg Walton (PDF Format)

• ‘Helping Big Brother Go High Tech’ from Business Week

• ‘The Net Effect’ by Steven Cherry

• ‘Cool Tools for Tyrants’ by Derek Bambauer

• ‘China: E-Repression leads to dramatic rise in those imprisoned for expressing opinions online’ from Amnesty International

• ‘The Connection Has Been Reset’ by James Fallows

• “Lawsuit Alleging California Tech Giant Aided Chinese Torture May Proceed, 9th Circuit Says” by Kevin Rector

•”Ninth Circuit Revives Suit Accusing Cisco of Aiding and Abetting Torture in China” by Michael Gennaro

•”US Appeals Court Revives Lawsuit Accusing Cisco of Aiding Beijing in Persecuting Falun Gong” by Eva Fu

•”Ninth Circuit Allows Human Rights Claims Against Cisco to Proceed” by William Dodge

•”Cisco Must Face Suit Linking Its Tech to Chinese Human Rights Abuse, Court Rules,” by Joel Rosenblatt

•”China Analyst: Cisco ‘Made a Deal with Satan’,” by Zhen Ni and Wang Ying

•”Suit Against Tech Giant Shines Light on U.S. Complicity in Chinese Torture,” by Susan Crabtree

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