Insight: Cisco suits on China rights abuses to test legal reach

Insight: Cisco suits on China rights abuses to test legal reach

 

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The Cisco logo is displayed at the technology company's campus in San Jose, California February 3, 2010. REUTERS/Robert Galbraith

The Cisco logo is displayed at the technology company’s campus in San Jose,
California February 3, 2010.

Credit: Reuters/Robert Galbraith

By Sui-Lee
Wee

BEIJING | Thu Sep 8, 2011
8:36pm EDT

BEIJING (Reuters) – Two lawsuits by three
Chinese dissidents and a human rights group accusing Cisco Systems Inc. of
abetting imprisonment and torture could have far-reaching impact on how U.S.
technology companies conduct business in authoritarian regimes.

The lawsuits filed in May and June target a second technology company for
complicity in human rights abuses in China after Yahoo Inc. in 2007
paid to settle a case in which it was accused of aiding the prosecution of
dissidents.

Both cases could provide answers to an evolving legal question: Can U.S.
companies be held liable if foreign governments use their products for
repression?

The first lawsuit, filed in May by the Human Rights Law Foundation in
Washington in the Federal District Court in San Jose, California, accuses Cisco
of designing products to help the Chinese government persecute members of
China’s banned spiritual group, Falun Gong.

Last Friday, the rights group amended its original complaint, saying it had
new evidence that Cisco customized its products specifically to enable the
authorities to persecute members of Falun Gong, some of whom were alleged to
have been tortured and killed by the Chinese authorities.

The second suit, filed in June in the U.S. District Court in Maryland, says
the company was complicit in the arrests and detentions of political writers Du
Daobin, Zhou Yuanzhi and Liu Xianbin.

The lawsuits are drawing broad attention from U.S. companies because these
are important test cases of the Alien Tort Claims Act, a law dating back to 1789
that accommodates actions in U.S. courts to uphold international law.

“Undoubtedly this is going to be a big case because I think everyone is
waiting for the Supreme Court to make a decision," said Farzana Aslam, a law
professor who teaches a course on business and human rights at the University of
Hong Kong.

“The reason you’ve got the NGOs engaged is they want to push this issue on a
broader platform — the issue of whether corporations should be held accountable
for human rights violations."

Marco Simons, legal director for environmental rights group Earth Rights
International who has spent 10 years litigating cases against corporations under
the Alien Tort Claims Act, said the lawsuits could test the courts on the
standards for liability in aiding and abetting human rights abuses.

“These cases present what will likely be a fairly clear case of Cisco knowing
that it is designing systems that would be used to persecute people," Simons
said. “But where the plaintiffs might have a harder time is showing that Cisco
really intended to persecute people.

“That wouldn’t really be impossible to show," he said. “But it’s much easier
to show knowledge rather than purpose. These cases could be important for
testing that distinction and standard."

INTERNET TIANANMEN SQUARE

Cisco is the world’s biggest maker of Internet networking equipment. Both
lawsuits name several Cisco executives, including Chief Executive John
Chambers.

David Cook, Cisco’s communications director for Asia-Pacific, said the
company “builds equipment to global standards which facilitate free exchange of
information, and we sell the same equipment in China that we sell in other
nations worldwide in strict compliance with US government regulations."

“Cisco does not operate networks in China or elsewhere, nor does Cisco
customize our products in any way that would facilitate censorship or
repression," Cook said in emailed comments.

But Daniel Ward, the lawyer representing the three dissidents, said that
Cisco “built the entire backbone" of China’s Golden Shield Project, also known
as the Great Firewall — the cloak of Internet security authorities use to
censor the Internet and track opponents of the Chinese government.

He called the project the 21st-century version of the deadly crackdown on the
Tiananmen Square democracy movement in 1989.

“You don’t have to drive tanks to fend away protesters, you just need to pick
them off one by one before they have a chance to work on it," Ward told Reuters.
“And they are doing that with technology and software and infrastructure
designed and created by Cisco."

The lawsuit said Cisco “willingly and knowingly provided Chinese officials
with technology and training to access private Internet communications, identify
anonymous web log authors, prevent the broadcast and dissemination of peaceful
speech, and otherwise aid and abet in the violation of…fundamental human
rights."

Both Du and Zhou told Reuters that Chinese security agents had told them
during interrogations that they had monitored all their emails.

Du served a three-year prison term starting in June 2004 for “inciting
subversion of state power" — a broad charge that China often uses to punish
dissidents — while Liu is serving a 10-year sentence on the same charge
starting late March. Zhou was detained in 2008 on the pretext of “revealing
state secrets."

Terri Marsh, a lawyer for the Human Rights Law Foundation, told Reuters that
its new evidence includes a PowerPoint presentation from Cisco that describes a
specific line of products “as the only product on the market capable of
recognizing over 90 percent of Falun Gong pictures."

“This directly implies that Cisco was involved in the final step of the
customization — configuring its product to recognize and inspect for Falun Gong
information," Marsh said in emailed comments.

Marsh also said two Cisco employees were quoted as saying in an online Cisco
Q&A in 2006 that a person should “use Cisco’s equipment" in response to a
question on how a city-wide network can “guard against Falun Gong."

Cisco’s Cook said that the company was currently reviewing the amended
complaint.

“As we said in May when the lawsuit was filed, there is no basis for these
allegations against Cisco, and we intend to vigorously defend against them," he
said.

In 2008, at a Senate Judiciary Committee hearing, Cisco denied allegations by
a human rights activist who said the company had given Chinese authorities
technical help in their efforts to censor the Internet.

U.S.-CHINA RELATIONS

While civil litigation cases under the act could take up to an average of 10
years, the suit against Cisco could be a major flashpoint in relations between
Washington and Beijing, which have tussled on trade, Internet censorship, human
rights and U.S. arms sales to Taiwan.

“It will be interesting to see politically what the U.S. does in relation to
these cases," Simons said. “Issues involving human rights abuses in China are
very politically sensitive with the U.S. government.

“In many of the past cases, the U.S. government has intervened to tell the
courts to dismiss the case or to express concerns about potential foreign policy
problems with China," he said, adding that most of these were under the Bush
administration.

In 2002, the U.S. State Department urged dismissal of a lawsuit against Liu
Qi, the Beijing mayor, for human rights abuses committed by Beijing police
against Falun Gong practitioners, asking the courts to “be cautious when asked
to sit in judgment on the acts of foreign officials taken within their own
countries."

“The Obama administration to my knowledge has not intervened in any Alien
Tort cases to suggest that they should be dismissed," Simons said. “A case like
this could test that."

The suits against Cisco raise a set of tough issues for Western technology
companies that want to do business in China, which has the world’s largest
number of Internet users.

Ward said his firm was lobbying the U.S. Congress about re-evaluating how American companies conduct their business in China. In February 2006, U.S. lawmakers lashed out at Google Inc., Yahoo Inc., Cisco and Microsoft Corp., because of the companies’ alleged complicity in human rights abuses by the Chinese government.

China treats political dissent as a crime and heavily filters the Internet to
suppress it. Since February, it has waged a crackdown on dissent, detaining
dozens of dissidents, including famed artist Ai Weiwei, mostly for writing
articles critical of the government.

Microsoft’s search engine Bing filters out results in China relating to
controversial subjects, such as political dissidents and Taiwan, to be able to
operate in the country.

The Alien Tort Claims Act — passed to combat piracy not long after the
United States was founded — has been used as the basis of litigation mostly
against oil companies and mining firms. Only in recent years has the act been
used to target technology firms by human rights groups, who say the companies
are complicit in abuses when they help regimes intercept emails and block
websites.

In 2009, a U.S. judge ruled that lawsuits seeking monetary damages can
continue against five large companies including IBM, which is accused of aiding
South Africa’s former apartheid system of racial segregation.

In 2007, Yahoo Inc settled a lawsuit alleging it aided China’s prosecution of
several dissidents in a case that prompted criticism of the company for
cooperating with an authoritarian government.

Yahoo was criticized by the U.S. Congress when it released to Chinese
authorities information relating to the email account of Shi Tao, a Chinese
journalist who was arrested in 2004. Shi was sentenced to 10 years in jail for
revealing state secrets.

Du, 48, who was jailed for posting articles under a pseudonym on the Internet
criticizing the Chinese Communist Party’s rule, said Western technology
companies should not cooperate with a government that violates civil
rights.

“This kind of cooperation hurts us as well as the companies’ business," he
said. “The publication of our articles are closely monitored and once they’re
published, we will end up in jail."

Du said he was interrogated by police in early August about the lawsuit, but
added that the case was “not only for myself, but also for the freedom of every
individual in China, to put an end forever to China’s ‘literary jail.'"

(Reporting by Sui-Lee Wee; Editing by Ken
Wills
and Jonathan
Thatcher
)

http://www.reuters.com/article/2011/09/09/us-china-cisco-idUSTRE78809E20110909

 

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