Human Rights Claims Against Cisco Can Move Forward (Again)

Google and Amazon – You Should Take Note of Your Own Aiding and Abetting Risk 

EFF has long pushed companies that provide powerful surveillance tools to governments to take affirmative steps to avoid aiding and abetting human rights abuses. We have also worked to ensure they face consequences when they do not.

Last week, the U.S. Court of Appeals for the Ninth Circuit helped this cause, by affirming 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.  

We did a deep dive analysis of the Ninth Circuit panel decision when it came out in 2023. Last week, the Ninth Circuit rejected an attempt to have that initial decision reconsidered by the full court, called en banc review. While the case has now survived Ninth Circuit 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 Ninth Circuit’s 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. For instance, a company only needs to know that its assistance is helping in human rights abuses; it does not need to have a purpose to facilitate abuse. Similarly, the fact that a technology has legitimate law enforcement uses does not immunize the company from liability for knowingly facilitating human rights abuses.

EFF has participated in this case at every level of the courts, and we intend to continue to do so. But a better way forward for everyone would be if Cisco owned up to its actions and took steps to make amends to those injured and their families with an appropriate settlement offer, like Yahoo! did in 2007. It’s not too late to change course, Cisco.

And as EFF noted recently, 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. Unfortunately, it’s all too common for companies to ignore their own human rights policies, as we highlighted in a recent brief about notorious spyware company NSO Group.&a