U.S. Supreme Court Deals Final Blow to Corporate Human Rights Accountability

For the past two decades, the U.S. Supreme Court has been slowly weakening the Alien Tort Statute (ATS), a key human rights law that allows foreign nationals to sue persons or entities in civil court for harms resulting from violations of international law. The court’s recent ruling in Cisco Systems, Inc. v. Doe I dealt the law a final blow, foreclosing—absent new legislation by Congress—any future ability by plaintiffs to use the law to hold technology companies accountable for aiding and abetting human rights abuses. EFF filed multiple amicus briefs in the case, including most recently in the Supreme Court.

The Supreme Court Rejected New Causes of Action Under the ATS

The ATS was passed by the very first Congress in 1789 and in just a few words gives U.S. federal courts jurisdiction to hear civil claims brought by foreign nationals against defendants who violated “the law of nations or a treaty of the United States." There has been a longstanding question about what counts as a valid civil claim under “the law of nations.”

In Sosa v. Alvarez-Machain (2004), the Supreme Court had noted three historical international law claims that the First Congress likely had in mind: violation of safe conducts, infringement of the rights of ambassadors, and piracy, collectively known as the Blackstone Three.

The Sosa court also held that federal courts may recognize other substantive causes of action under the ATS if they reflect international norms that are “specific, universal, and obligatory,” stating that this “door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”

Thus, the Sosa court recognized that the ATS could be used to bring claims related to historical violations of international law as well as select newer claims reflecting modern concepts of human rights.

In Cisco, the Supreme Court overruled the second Sosa holding. The majority held that the current case, a technology company aiding and abetting torture and other human rights abuses, was beyond the scope of the original three ATS claims and it was not for the court to create new ways of enforcing international law. The court said:

[W]e close the door that Sosa cracked to judicially created ATS liability. We do not disturb Sosa’s holding that the ATS is a jurisdictional statute; nor do we revisit its assumption that causes of action are available for torts corresponding to the Blackstone three. We conclude only that Sosa was overly optimistic in its prediction that there might be a narrow class of cases in which courts may create ATS actions without infringing on the prerogatives of the political branches. In truth, this class is a null set.

What result for this case? Cisco argues that the Ninth Circuit erred in holding that aiding-and-abetting liability exists under the ATS for the torts alleged by the plaintiffs. Cisco is correct. Courts cannot create new rights of action to remedy violations of international law, so there is necessarily no liability for aiding and abetting such violations. Plaintiffs’ ATS claims against Cisco must be dismissed.

Cisco is Off the Hook for Aiding and Abetting Horrific Human Rights Abuses

The Supreme Court’s ending of the plaintiffs’ case against Cisco is hugely disappointing given that the case has been going on since 2011 and the Ninth Circuit in 2023 allowed the case to move forward in an excellent and well-reasoned opinion. The court held, in part:

We conclude that Plaintiffs’ allegations, accepted as true, are sufficient to state a plausible claim that Cisco provided essential technical assistance to the douzheng [violent struggle] of Falun Gong with awareness that th