Supreme Court mulls liability of tech firms in overseas rights abuses
A member of the Bulgarian Falun Dafa association attends a protest in front of the Chinese embassy in Sofia, Bulgaria, in July 2023. The protest marked the 24th anniversary of the start of a massive campaign against Falun Dafa in July 1999, when the Chinese Communist regime began the repression and persecution of Falun Gong and its followers in China. File Photo by Vassil Donev/EPA
WASHINGTON, April 28 (UPI) — Supreme Court justices appeared divided Tuesday morning about whether a U.S. tech company can be held liable for aiding the Chinese government’s alleged torture of a spiritual minority.
The case is centers on whether practitioners in China of the Falun Gong religion — also called Falun Dafa — can sue California-based tech company Cisco Systems for aiding and abetting violations of the 18th-century Alien Tort Statute and the Torture Victim Protection Act, which was enacted in 1992.
Cisco attorney Kannon Shanmugam called for barring aiding and abetting liability. He argued that allowing liability to be implied would harm the government’s separation of power.
Much of Tuesday’s debate hinged on whether the statute’s 200-year-old “law of nations” wording was applicable to the relatively more modern concept of human rights abuses, as well as whether the first Congress meant for the victim protection act to include second liability for aiding and abetting torture.
The case marks the latest attempt to define the scope of the statue, which for over two centuries has allowed foreigners to bring lawsuits in U.S. courts for serious violations of international law.
More than 20 years ago, Cisco developed and sold to the Chinese government a surveillance system, which the government used to find, interrogate and allegedly torture Falun Gong practitioners.
During arguments for Cisco Systems Inc. vs. Doe I, some justices emphasized Cisco’s awareness of their technology’s role in persecution, while others said that including liability for aiding torture in the alien tort statue contradicted with historical precedent and had foreign policy risks.
But no clear majority converged around either position in the conservative majority court.
“We’ve maybe misled Congress into thinking, ‘Oh, we don’t need to do anything about these human rights things, the courts are taking care of it,'” Justice Brett Kavanaugh said.
“I’m concerned at a separation of powers level that we’re not really allowing suits to go forward, but Congress thinks we are because of a lack of clarity in our case law.”
Justices Ketanji Brown Jackson and Sotomayor appeared more supportive of those who brought forward the original lawsuit — several Chinese nationals and one U.S. citizen.
Addressing the wording of the Torture Victim Protection Act, Sotomayor told Shanmugam: “I’m not sure how you get to your position that ‘subjects to’ can’t mean aiding and abetting because command liability doesn’t necessarily require subjecting someone to the torture.”
“It makes someone who’s in a command position who knows of the torture and permits it to happen … aiding and abetting. We’ve defined aiding and abetting as an active step in permitting and encouraging the substantive act.”
The Alien Tort Statute grants federal district courts original jurisdiction over any civil action in which an alien sues for a tort “committed in violation of the law of nations or of a treaty of the United States.”
“What’s the point of previous [Supreme Court] decisions that determined U.S. corporations could be defendants?” said Sophia Cope, senior staff attorney at Electronic Frontier Foundation, who helped write an amicus brief in support of the Falun Gong members.
“Excluding second liability from the ATS would be a huge loophole for companies to sell services which are used for human rights violations.”
By rejecting judicially created aiding and abetting liability, the court would close the last major loophole that the plaintiffs’ lawyers have “exploited” to keep cases with such claims under the ATS and TVPA alive, said Cory Andrews, vice-president of litigation at the Washington Legal Foundation. The foundation submitted a brief in support of Cisco in February.
“It would reaffirm that the ATS is a narrow 1789 statute, not a modern vehicle for global human-rights enforcement,” Andrews said.
The case had its origins 15 years ago. In 2011, the plaintiffs — 13 Chinese nationals and one U.S. citizen — filed the original suit in the District Court for the Northern District of California, claiming they were targeted using Cisco’s technology and then detained and tortured.
The district court dismissed the claims, but it was brought to the Supreme Court after a panel of federal judges on the U.S. Court of Appeals for the Ninth Circuit agreed in 2023 that the plaintiffs had met a legal threshold to continue with the lawsuit.
A decision is expected by the end of June.
