EFF Wants Cisco Held Responsible For Helping China Track, Torture Falun Gong Members

from the uphill-battle dept

Back in 2011 we noted how a group of Falun Gong members filed suit against Cisco in San Francisco, alleging that Cisco held some culpability for the Chinese government's crackdown on dissidents, critics, and others. According to the lawsuit at the time, Cisco "competed aggressively" for the contracts to design China's Golden Shield system, "with full knowledge that it was to be used for the suppression of the Falun Gong religion." The full, amended complaint (pdf) accused Cisco CEO John Chambers and two other senior executives of working with the CCP to find, eavesdrop on and track Falun Gong members.

The class action lawsuit leaned on a law known as the Alien Tort Statute, which allows non-US citizens to file human rights abuse claims in Federal court. But in 2014 a California court cited the U.S. Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co., -- stating that the Falun Gong members failed to cleanly show evidence that Cisco or its directors were directly tied to the human rights abuses and "interrogation." The court again upheld that point in 2015:
"[T]here are insufficient allegations that defendants obtained a direct benefit from the persecution of Falun Gong practitioners,” Judge Davila said. “While plaintiffs allege that anti-Falun Gong features in the Golden Shield are lucrative to defendants and appealing to the Chinese government, there is no indication that defendants would earn a reduced profit if those features were absent from the Golden Shield system."
Throughout this fight, the Electronic Frontier Foundation has consistently tried to argue that Cisco didn't need to be physically present in China to aid in human rights violations via the use of its systems, designed and constructed in Cisco's offices in San Jose, California. The group has also pointed repeatedly to marketing material and internal documents that show Cisco knew its systems would be used for surveillance and torture, though the EFF's consistently had its amicus briefs (pdf) rejected by the court. In one, the EFF details Cisco acknowledges the construction of:
  • "A library of carefully analyzed patterns of Falun Gong Internet activity (or “signatures”) that enable the Chinese government to uniquely identify Falun Gong Internet users;

  • Highly advanced video and image analyzers that Cisco marketed as the “only product capable of recognizing over 90% of Falun Gong pictorial information;”

  • Several log/alert systems that provide the Chinese government with real time monitoring and notification based on Falun Gong Internet traffic patterns;

  • Applications for storing data profiles on individual Falun Gong practitioners for use during interrogation and “forced conversion” (i.e., torture);
  • This week the EFF filed yet another amicus brief (pdf) in which it urges the federal appeals court to reinstate the lawsuit:
    "Cisco’s conduct is part of a growing trend of U.S. and European technology companies helping repressive governments become highly efficient at committing human rights violations,” said Cope. “We are asking the Ninth Circuit to recognize that victims of such abuses can seek to hold accomplices like Cisco accountable for their role in brutal persecutions."
    Attempting to hold Cisco accountable for violating U.S. law while doing business in China is obviously a pretty steep uphill climb. And while many would love to see companies like Cisco held responsible for willfully aiding in the surveillance and torture of a group of people whose biggest crime was compassion, others rightly worry that trying to dictate who companies can and can't do business with is a troubling and ultimately fruitless affair. Still, the case continues to generate an interesting discussion on just where the lines of culpability and liability truly lie.

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    • identicon
      Anonymous Coward, 14 Jan 2016 @ 9:48am

      this also raises the question of how instrumental Cisco is in aiding US surveillance efforts and if we can trust their denials regarding their role in the NSA's Tailored Access Operations (TAO).

      reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 14 Jan 2016 @ 10:04am

      EFF Who Are You?

      EFF, who are you? Who pays you? And why are you trying to cause trouble?

      :-)

      reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 14 Jan 2016 @ 10:27am

      others rightly worry that trying to dictate who companies can and can't do business with is a troubling and ultimately fruitless affair.

      Sounds more like a strawman than a "rightful worry" to me. It's not about who you can and can't do business with, but rather about what business you can and can't do (with anyone). Cisco should not be in the human-rights-violation business, not with China, not with any other country, not with any corporation or private entity.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jan 2016 @ 11:33am

        Re:

        ...It's not about who you can and can't do business with, but rather about what business you can and can't do (with anyone)...

        Two caveats:

        1) The US (and other countries) already has licensing requirements for many business activities, so one could argue that the government already has a say in what business you can and cannot do. Many of these license requirements are at the state, county, and/or local level, but the principle is the same.

        2) Said argument can apply to who you do business with. An example would be an under-18 can be in a gun store even though that store cannot sell to them whereas same under-18 cannot step foot into an adult novelty store; that store would lose it's license to do business.

        reply to this | link to this | view in chronology ]

    • identicon
      John Chambers, 14 Jan 2016 @ 10:37am

      Who the fuck are you, EFF!?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2016 @ 10:41am

      Big Surprise

      This is what businesses learn early in regards to government.

      Do everything the government asks of you, get immunity from just about everything.

      It is more likely that the US has known about this for quite some time and does/did not care one fucking bit guys!

      reply to this | link to this | view in chronology ]

    • identicon
      Dave, 14 Jan 2016 @ 10:58am

      IBM

      It brings to mind IBM providing products to help Nazi Germany with the Holocaust.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2016 @ 12:04pm

      How is this different than the lawsuit against Twitter that says Twitter helped ISIS grow?

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 14 Jan 2016 @ 12:31pm

        Re:

        They were paid to find a group by people who meant to harm them. Their work allowed people to be tortured/disappeared.

        Twitter is a platform where people say stuff. Twitter wasn't paid to shoot people or place bombs.

        reply to this | link to this | view in chronology ]

        • identicon
          Mark, 14 Jan 2016 @ 9:42pm

          Re: Re:

          Falun Dafa does no harm to anyone. What is happening is that the Chinese Communist Party is pursuing an illegal, immoral and inhuman persecution of Chinese citizens who have not broken any laws and only want to improve themselves physically and mentally through the self cultivation of Truthfulness, Compassion, Forbearance.

          And, by the way, they used Cisco to help them do that.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 14 Jan 2016 @ 10:22pm

            Re: Re: Re:

            ...through the self cultivation of Truthfulness, Compassion, Forbearance.

            Hardly a wonder the Chinese government has it out for them, given they're hardly big fans of any of those things.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jan 2016 @ 4:09pm

        Re:

        One is hired to assist in wrongdoing by making custom wrongdoing tools and one made a general tool that is not impossible to use for wrongdoing.

        It would be like if twitter was hired by ISIS to build a special "terrorism version".

        reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 14 Jan 2016 @ 12:29pm

      Corporations exist to make money, doing this work makes them money. The unseen benefit is everyone is focused on this and it provides cover to others... well we had them help us do stuff but it wasn't as bad as what China did.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2016 @ 2:15pm

      Cisco was paid to build a product that did things. How it was used is on the user (China)

      If China used Google to track down people, should Google be responsible for their deaths?

      reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 14 Jan 2016 @ 3:40pm

        Re:

        That's not actually what the complaint is about.

        It's not just about Cisco providing bog-standard, stock, generic network equipment with bog-standard firmware and O/S that the Chinese were then free to use/configure at will.

        Apparently, Cisco did more than just sell some products to the Chinese. The suits are alleging that Cisco took an active role in configuring, tuning, and customizing the devices specifically for tracking and hunting down Falun Gong members. It is being alleged that Cisco KNEW the customizations they were creating for the Chinese were for hunting down dissidents. That Cisco went beyond being a mere supplier of kit.

        reply to this | link to this | view in chronology ]

        • icon
          Eldakka (profile), 14 Jan 2016 @ 3:45pm

          Re: Re:

          Need an edit!

          If we are to use Google as a comparison, this would be more like Google, at the Chinese request, creating a custom portal for the Chinese government that was specifically designed to search down specific classes of dissidents. Not China being able to use the generic search engine with some clever search terms, but Google actively creating a custom portal that was easy to use, that optimized any searches entered into it to search for Falun Gong 'markers' and so-on without the user having to explicitly create the search themselves.

          reply to this | link to this | view in chronology ]

    • identicon
      Zonker, 14 Jan 2016 @ 2:40pm

      It's obvious why the Chinese government would feel threatened by the existence of Falun Gong (Falun Dafa): the three main tenets of the belief are Truthfulness, Compassion, and Forbearance. Exactly the opposite of the values held by those in government.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 14 Jan 2016 @ 5:40pm

      ATCA dead

      ATCA is effectively dead. From the article:
      In the Kiobel case, Roberts wrote, “all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”
      The Falun Gong members and the EFF are tilting at windmills. Since all of the filtering took place in China, where there is no US right to free speech, the appeals court (and SCOTUS, should it go that far) is simply going to rule this is an extraterritorial claim and that will be the end of it.

      reply to this | link to this | view in chronology ]

    • icon
      Whatever (profile), 14 Jan 2016 @ 6:07pm

      A couple of things here that are important and very relevant to the discussion.

      First off, as far as the Chinese are concerned, Falun Gong (or Falun Dafa if you prefer) is both a cult and a disruptive organization opposed to the government and public security. Essentially, they are religious terrorists, at least in the eyes of the Chinese government. While you may not agree with the Chinese government's opinion, I can say that from what I can see, they do seem to be against public order and opposed to the communist party, both of which are not tolerated under Chinese law.

      Second, Cisco isn't torturing anyone. They are helping to create products which are good at facial recognition. The Chinese government then uses these tools to identify and arrest Falun Gong members as well as other "disruptive" people in their society. It's a "gun maker" situation, even if you know the product is being used to kill people, are you really truly liable for it?

      Third, it's like very difficult if not impossible for EFF to show a direct relationship between the Cisco product and any specific bad act. It's also hard to EFF to prove that, under Chinese law, that the acts were "bad".

      Finally, there is the question of standing. The products are sold overseas, They are used overseas. They are not in the US. The actions don't happen in the US, and do not involve US citizens. A US court is NOT the place to hear these arguments. Moreover, the product itself is likely sold through Cisco Systems (China) Networking Technology Co., Ltd., which means that the North American office is even one more step away from any liability.

      EFF would be better off trying to push something to an international court. Dragging Cisco into court in the US just begs for Cisco to sue them back... SLAPP anyone?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jan 2016 @ 8:10pm

      Take Notice when Buying

      You can serve a bit of justice, even more so for my fellow network admins. Choose what brand of products to acquire.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jan 2016 @ 7:48am

      Re: where the lines of culpability and liability truly lie

      The line is the one that engineers (software or hardware) cross, when they are asked to do something that they have ethical problems with, and then do it in order to ensure their kids get fed.

      It usually happens this way:

      ___________

      Engineer in cubicle busily hacking away. Marketing guy walks up:

      "Hey Fred is -foo- possible?"

      Engineer thinks for a second.

      "Yep"

      Marketing guy:

      "Thanks!"

      8 hours later in a conference room Fred sits alone on one side of the table, and his five bosses, and the marketing guy sit on the other.

      Marketing guy:

      "Hey, Fred said we can do -foo- isn't that a great idea?"

      Engineer thinks to himself:

      "how badly do I want this job? I wonder what that guys spleen looks like?"

      the 5 bosses:

      "Why yes, that will create synergy, etc. etc. etc."

      Marketing guy gets a bonus. Engineer gets another boss and 10 more hours added to his work week.

      ____________

      The reality is that only a small percentage of the population has the chops to build things. All we have to do to change our environment, is stop empowering those who imprison us.

      It isn't about ideals anymore. It is about aristocracy.

      reply to this | link to this | view in chronology ]


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