"Human Rights Claims Against Cisco Can Move Forward (Again)", 18 September 2024

Last week, the U.S. Court of Appeals ... affirmed its powerful 2023 decision that aiding and abetting liability in U.S. courts can apply to technology companies that provide sophisticated surveillance systems that are used to facilitate human rights abuses.

The specific case is against Cisco and arises out of allegations that Cisco custom-built tools as part of the Great Firewall of China to help the Chinese government target members of disfavored groups, including the Falun Gong religious minority.  The case claims that those tools were used to help identify individuals who then faced horrific consequences, including wrongful arrest, detention, torture, and death.  

Last week, the Court rejected an attempt to have that initial decision reconsidered by the full court, called en banc review. While the case has now survived Court... review and should otherwise be able to move forward in the trial court, Cisco has indicated that it intends to file a petition for U.S. Supreme Court review. That puts the case on pause again. 

Still, the Court... decision to uphold the 2023 panel opinion is excellent news for the critical, though slow moving, process of building accountability for companies that aid repressive governments. The 2023 opinion unequivocally rejected many of the arguments that companies use to justify their decision to provide tools and services that are later used to abuse people...

Cisco isn’t the only company that should take note of this development. Recent reports have revealed the use (and misuse) of Google and Amazon services by the Israeli government to facilitate surveillance and tracking of civilians in Gaza. These reports raise serious questions about whether Google and Amazon  are following their own published statements and standards about protecting against the use of their tools for human rights abuses...

The reports about Gaza also raise questions about whether there is potential liability against Google and Amazon for aiding and abetting human rights abuses against Palestinians... As the Court ... confirmed, aiding and abetting liability is possible even though these technologies are also useful for legitimate law enforcement purposes and even if the companies did not intend them to be used to facilitate human rights abuses...