Will Kiobel Grant the Privilege to Commit Human Rights Violations?

Kiobel v. Royal Dutch Petroleum, 132 S.Ct. 472 (2011), has presented the United States Supreme Court with a number of questions regarding the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). The U.S. Court of Appeals for the Second Circuit refused to apply the ATS to Royal Dutch Petroleum. In Kiobel, the facts involved a foreign company acting in a foreign land against foreign plaintiffs – commonly referred to as a “foreign cubed” situation. The Solicitor General, in an Amicus brief, indicated that while the foreign cubed situation (such as is found in Kiobel) causes problems, there are certainly cases where a corporation should be liable under the ATS. In that Amicus brief, the Department of Justice argued that the Second Circuit’s 2-1 ruling is a proper application of the ATS in this particular case, but “insofar as the court addresses whether a corporation can be a proper defendant in a suit under the ATS, the judgment of the court of appeals should be reversed.” The Department of Justice argues that a liberal application of the Second Circuit’s ruling would be in error. In Du v. Cisco, the foreign cubed problem is not an issue. The Solicitor General’s warning regarding the overbreadth of the Second Circuit’s ruling should be heeded. Cisco is a U.S. corporation headquartered in California, which implicates issues irrelevant to the Dutch-based Royal Dutch Petroleum.

All interested parties are awaiting rehearing in the Kiobel case. On February 28, 2012, oral arguments were held in front of the Supreme Court.  A week later, the Supreme Court stated that it would hold additional arguments as to “[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

The Obama Administration has urged the courts to use caution in ATS cases, while also acknowledging that the Second Circuit’s position is too broad. The present issue of “extraterritorial application” to foreign corporations has put the Executive Branch on alert, fearing that Kiobel, as well as future cases, could have ramifications throughout the political and foreign policy spectrums of the United States. While President Obama has repeatedly supported ATS application to corporations, his administration has asked “to close the U.S. courts to most lawsuits involving claims that a foreign corporation helped a foreign government engage in human rights abuses in that country.”

Given its recent opinions, it would be inconsistent for the Supreme Court to grant corporations the privilege to avoid ATS liability. Just one month ago, in American Tradition Partnership Inc. v. Bullock, 567 U. S. ____ (2012) (reaffirming Citizens United v. FEC, 130 S.Ct. 876 (2010)), the Supreme Court held that corporations have the same legal status as people under the First Amendment. If corporations are to be afforded legal benefits as individuals, they should be saddled with the same legal burdens.

As an American corporation, Cisco should have no special privilege to commit human rights violations under the ATS when a private citizen would be liable for the same action. Cisco, as a corporation operating under and availing itself of the laws and protections of the United States, should be accountable to U.S. courts for its actions.

If you have any information regarding Cisco’s ongoing support for the Chinese Communist Party’s continued oppression of its citizens, please do not hesitate to contact Daniel Ward. Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated. Contact your elected representatives — let them know how you feel. Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!.

China’s Latest Internet Crackdown

The news spread rapidly this weekend: China was conducting a massive internet crackdown to suppress online “rumors” of political unrest within China’s Communist Party, including posts that military vehicles had entered the streets of Beijing.  As described by the New York Times, Wall Street Journal, Washington Post, and the BBC, to name a few, China’s latest censorship attempt involved temporarily preventing the nation’s hundreds of millions of internet users from being able to post comments on the nation’s two largest “Twitter-like” microblogging operators, Sina Corp. and Tencent Holdings Ltd.  In addition, a reported six people were detained and sixteen websites were shutdown as part of the crackdown effort.

Why such a drastic move? As the Director of a Chinese media website told the Detroit Free Press, the crackdown was intended to “send[] a signal to the Internet companies and users that the government is watching you.”  More specifically, the censorship and detentions apparently intended to quell rumors of a coup, sparked by the sudden removal of Bo Xilai, a high-profile Chinese official who was, until recently, favored to join the top echelon of Chinese political power. As reported by Time, however, “Bo’s rise was derailed last month when a key deputy, former police chief and Chongqing vice mayor Wang Lijun, made a surprise visit to a U.S. consulate. Wang spent an evening at the consulate and was then detained by state security officers upon leaving. Wang has also been removed from his official post.”

The bigger question is whether the crackdown was successful.  Not exactly, according to many who have suggested that it may have resulted in exactly the opposite intended result due to the intense media coverage.  After all, “What is the best way to stop ‘rumors’?, Zhang Xin, one of China’s most prominent real estate developers, asked the 3-million-plus followers of her Sina blog.  It is transparency and openness.  The more you don’t allow speech, the more rumors there will be.”

As is seen in Du v. Cisco, Cisco supports and profits from the Chinese Communist Party’s oppressive censorship of its citizens.  If you have additional information regarding this ongoing support by Cisco, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated. Contact your elected representatives— let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!

 

Kiobel v. Royal Dutch Petroleum: Supreme Court Oral Argument Recap

As has been widely reported, the Supreme Court recently heard oral argument in the case of Kiobel, et al. v. Royal Dutch Petroleum, et al. (10-1491), to determine whether liability under the Alien Tort Statute (ATS) extends to corporations that have allegedly committed grave human rights abuses.  Petitioners argued that it does, on the ground that international law forbids specific acts, not actors, and even if it did not, domestic law governs when international law is silent.  Respondents disagree, asserting that international law simply does not recognize corporate responsibility; thus, corporations cannot be liable under the ATS.

Post-argument analysis has been far-reaching, with many commentators speculating that the Justices seemed most interested in the extraterritoriality issue, i.e., whether US courts even have the authority to decide cases with absolutely no connection to the US.  To name a few, SCOTUSblog describes how Justice Kennedy’s questions on that very topic were devastating to Petitioners’ case.  Similarly, NPR features a piece that describes the human rights abuses at issue, along with the perspective of John B. Bellinger III, former State Department counsel who also filed an amicus brief in the case on behalf of a half-dozen multinational corporations.  In the NPR piece, and in a Washington Post op-ed, Bellinger contends “that international law binds nations and individuals, but not corporations,” and that neither the ATS nor international law allows American judges to adjudicate actions that have occurred in other countries and “that have absolutely nothing to do with the United States.”

As it turns out, the legal speculators were correct.  Last week, the Supreme Court ordered re-argument in Kiobel to answer the following narrow question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”  As described by SCOTUSblog, while the Justices did not elaborate on the decision in the order itself, reports from a private conference last week reveal that they found themselves faced with the option of either granting cert in Rio Tinto PLC, et al., v. Sarei, et al. (11-649), a case that directly raised the issue of extraterritoriality, or expanding the review of the Kiobel case.  Based on the order that came down, they apparently chose the latter.

Notwithstanding the recent development, the New York Times last week featured a post-argument op-ed that serves to take us back to the heart of the case.  Susan Farbstein and Tyler Giannini, Harvard Law Professors who filed amicus briefs in support of the Petitioners in Kiobel assert: “In exchange for rights, corporations accept certain responsibilities, including liability for harms committed by their agents. Corporations should not receive greater legal protections than people. Relief from suffering, and accountability for human rights violations, should not depend on whether an individual or a corporation is responsible for the abuse.”  Also focused on the merits, Marco Simmons, Legal Director at Earth Rights International, writes that during oral argument the Justices, especially Justice Alito, “asked difficult questions that suggested skepticism about using the ATS for transnational human rights cases,” however, “they did not ask pointed questions that supported applying different rules to human beings and corporations.”   Finally, Georgetown Law features a post-argument roundtable , which featured Paul Hoffman, counsel for Petitioners, along with several prominent authorities in international and human rights law.

Kiobel and what it means to U.S. Corporations

Based on the developments in Kiobel v. Royal Dutch Petroleum, it is likely that the Supreme Court’s decision in the case may end up turning on the threshold issue of whether US courts are the proper vehicle in which to air extraterritorial grievances.  If this turns out to be the case, the fate of other ATS claims against corporations, particularly those with a US connection, remains unclear.

For example, Du v. Cisco – currently pending in the US District Court in Maryland (11-1538-PJM) – involves allegations by former and current citizens of the People’s Republic of China (PRC) that Cisco was involved in supporting torture and unlawful detention by the Chinese Communist Party based on speech against its government.  Notably, unlike Kiobel, the alleged human rights abuses at issue in Du have a direct connection to the US, in that Cisco, an American corporation, and its technologies are argued to have directly enabled the human rights abuses.

Unlike the murkier “foreign-cubed” scenario at issue in Kiobel, involving Nigerian nationals suing a Dutch company for acts that occurred in Nigeria, the line starts to become clearer in this circumstance.  That is, when US corporations knowingly decide and act to support oppressive and abusive regimes, they must be held accountable when those decisions result in torture and other grave human rights violations.  Further, US corporations in particular must not profit, but instead must be deterred, from such decisions.  Accordingly, in cases where a US connection is clear, the US and its courts should be a leader in upholding the rule of law relating to these blatant abuses of power.

Although the Court seemed skeptical of corporate liability in Kiobel last week, several of them were also uneasy declaring that corporations are not liable for any international law violations—especially those involving piracy and slavery.  Counsel for Royal Dutch Petroleum even admitted that individual corporate directors could be liable under the ATS.  It is, therefore, unlikely, that the Supreme Court’s decision, when it is ultimately issued, will end the Du case—a case against an American corporation and its directors.

If you have any information regarding Cisco’s ongoing support for the Chinese Communist Party’s continued oppression of its citizens, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated.  Contact your elected representatives — let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!.

Christian Bale Becomes Latest Target of Chinese Crackdown

At first glance, Academy Award winner Christian Bale would appear to be a popular figure in the People’s Republic of China. Known internationally for his role as Batman in the blockbuster trilogy, he has also made a name for himself in China for his leading role in The Flowers of War, by acclaimed Chinese filmmaker Zhang Yimou. The film, which depicts Japan’s rape of Nanking in 1937, has become a box-office in smash in China, earning over $83 million, enough to make it the third-highest grossing Chinese film of all-time, and earned a Golden Globe Nomination for Best Foreign Film, according to the Hollywood Reporter.  Later this month, it hopes to earn an Academy Award nomination as the official Chinese entry to the prestigious award ceremony.

Nonetheless, Christian Bale did not receive a hero’s welcome during a recent visit to China to promote the film. Instead, he became the latest victim of the Chinese governments’ crackdown on voices of opposition and dissidence. While in China, Mr. Bale had hoped to meet with Chen Guangcheng, a blind activist living under house arrest for his work in opposition to China’s one-child policy. Instead, according to the Hollywood Reporter, Mr. Bale soon found himself in a shoving match with Chinese police:

Academy Award winner Christian Bale found himself in a shoving match with local police in a village near Beijing, as The Dark Knight star attempted to visit a Chinese activist that he regards as an “inspiration.”

Bale had invited CNN correspondent Stan Grant and a cameraman to join him on a visit to Chen Guangcheng, a blind activist living under house arrest after being released from prison in 2010. Chen was sentenced to four years in prison for damaging property and disrupting traffic during a protest, although supporters say his legal work on behalf of what Chen said are victim’s of China’s one-child policy, including forced abortions and sterilizations, led to his prosecution.

“Why can’t I visit this free man?” Bale asked repeatedly, with Grant translating. Local police, many dressed in plainclothes, pushed the group back as they approached Chen’s village, punched and damaged a camera Bale was holding, and threw rocks at their car.

“What I really wanted to do was to meet [Chen], shake his hand and say what an inspiration he is,” Bale told CNN.

Instead of apologizing to Mr. Bale for this embarrassing incident and trying to put the bad publicity behind, the Chinese government believes it is the American actor who should be embarrassed. Foreign Ministry spokesman Liu Weiman says Mr. Bale was invited to China to promote the film, “But he was not invited to create a story or shoot film in a certain village… I think if you want to make up news in China, you will not be welcome here.”

The “make up news” Mr. Liu refers to is the well-documented plight of Mr. Chen.

Chen documented forced late-term abortions and sterilizations and other abuses by overzealous authorities trying to meet population control goals in his rural community. He was imprisoned for allegedly instigating an attack on government offices and organizing a group of people to disrupt traffic, charges his supporters say were fabricated.

Although now officially free under the law, he has been confined to his home in the village eight hours’ drive from Beijing and subjected to periodic beatings and other abuse, activists say.

Chen’s case has been raised publicly by U.S. lawmakers and diplomats, including Secretary of State Hillary Rodham Clinton, all to no response from China.

Mr. Bale’s dustup with Chinese officials is just the latest example of the Chinese government’s attempt to silence any opposition and dissidence. It is the same policy that has led to the Chinese Community Party to pursue the Golden Shield Project, with the assistance of Cisco Systems.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated.  Contact your elected representatives — let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!.


Partner or Collaborator? Corporate Counsel Magazine on Cisco’s Relationship with China

The November issue of Corporate Counsel Magazine contains an interesting article on Cisco’s relationship with China, aptly titled “Partner or Collaborator?  Cisco discovers the perils of doing business in China.

The article addresses both the Du v. Cisco and Doe v. Cisco cases, and Cisco’s muted response to the accusations that have been made and substantial evidence support our clients’ claims.  Daniel Ward is quoted extensively about Cisco’s actions and Du v. Cisco:

The writers are represented by Daniel Ward, a partner at Ward & Ward in Washington, D.C., who filed the suit in federal district court in Greenbelt, Maryland. “This wasn’t just Cisco ignorantly selling routers to an oppressive regime and saying, ‘Gee, let’s hope for the best,’” says Ward. “This is them actively marketing themselves as an entity that could help in the Chinese Communist Party’s efforts to oppress dissidents.”

Attorney Ward’s goal is changing the way Cisco and other companies weigh market opportunities. China “is seeking American technological know-how to crush dissent, and those American technology companies know it, but the draw of profits is irresistible to them,” he says.

He believes Yahoo made serious changes as a result of being sued. He hopes the suit against Cisco yields similar results. With Cisco, he says, “our goal is to make that cost-benefit analysis shift.”

As we have stated previously, there is no doubt there is more evidence out there regarding Cisco’s ongoing support of the Chinese Communist Party’s continued oppression of its citizens.  If you have any information, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated.  Contact your elected representatives — let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!.

Excellent Reuters article on Du v. Cisco and Doe v. Cisco

Sui-Lee Wee has written an excellent and comprehensive article, Insight: Cisco suits on China rights abuses to test legal reach, that provides substantial background and analysis of Cisco’s actions in China, and the legal issues surrounding the current litigation.  In addition to quotes from Daniel Ward (re: Du v. Cisco) and Terri Marsh (re: Doe v. Cisco), the article also quotes Du Daobin and Zhou Yuanzhi, two of the Plaintiffs in Du v. Cisco.  In the article Du states the following:

Du, 48, who was jailed for posting articles under a pseudonym on the Internet criticizing the Chinese Communist Party’s rule, said Western technology companies should not cooperate with a government that violates civil rights.

“This kind of cooperation hurts us as well as the companies’ business,” he said. “The publication of our articles are closely monitored and once they’re published, we will end up in jail.”

Du said he was interrogated by police in early August about the lawsuit, but added that the case was “not only for myself, but also for the freedom of every individual in China, to put an end forever to China’s ‘literary jail.’

As we have stated previously, there is no doubt there is more evidence out there regarding Cisco’s ongoing support of the Chinese Communist Party’s continued oppression of its citizens.  If you have any information, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated.  Contact your elected representatives — let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!.

NYT reports new evidence of Cisco’s knowing aid to China re: Golden Shield

A Friday evening New York Times article reported that new evidence has been discovered that Cisco Systems, Inc. specifically tailored its products for use by the Chinese Communist Party to monitor and apprehend its citizens.

The Human Rights Law Foundation, an advocacy group involved in Doe v. Cisco, an Alien Tort Statute lawsuit brought against Cisco on behalf of a number of Falun Gong practitioners, announced Friday that it has new evidence that Cisco Systems, Inc. specifically tailored its products for use by the Chinese Communist Party to monitor and apprehend Falun Gong practitioners.

This evidence, if authenticated, would eviscerate Cisco’s position (as stated by their General Counsel, Mark Chandler) that  “Cisco does not supply equipment to China that is customized in any way to facilitate blocking of access or surveillance of users.”  and that “We have never customized our equipment to help the Chinese government—or any government—censor content, track Internet use by individuals or intercept Internet communications.”

There is no doubt there is more evidence out there regarding Cisco’s ongoing support of the Chinese Communist Party’s continued oppression of its citizens.  If you have any information, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated.   Contact your elected representatives, let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!.

Who is Liu Xianbin?

The Laogai Research Foundation has authored an excellent blog post titled “Who is Liu Xianbin?” that puts a “human face” on Liu Xianbin, one of the named plaintiffs in Du v. Cisco.  I encourage all the readers of this blog to click over to the Laogai Research Foundation’s blog to learn more about Liu Xianbin.

Continued Media Attention on Du v. Cisco

Over the past week, there has been increased media attention on Du v. Cisco.

Last Monday, Daniel Ward was interviewed on Asia Pacific Forum, for a segment titled “Partners in the Police State? US Tech Giant Cisco Sued for Aiding China.”  Cindy Cohn, Legal Director of the Electronic Frontier Foundation was also interviewed for that segment.

Yesterday, Daniel Ward was interviewed on the Marketplace Tech Report, for a segment titled “Suit says Cisco is helping China commit Crimes.”  John Palfrey, co-director of Harvard University’s Berkman Center for Internet & Society and a professor at Harvard Law School, was also interviewed for that segment.

The Committee to Protect Journalists recently wrote about Du v. Cisco in a post titled “In lawsuit, Chinese writers allege Cisco aids government.”  That article observes that “The threat of legal action may encourage other businesses to examine any potential negative impact of their activities in China” and provides the following quote from EFF’s Cindy Cohn:

“It’s no longer acceptable for companies to plead ignorance about how technology they sell is used,” said Cohn of the Electronic Frontier Foundation. “It’s incumbent upon experts in the field to create standards to guide companies in making ethical business practices, so that companies like Cisco can’t delude themselves or their investors about the blood-stained profits they derived from their business deals with China or other authoritarian governments.”

The growing attention given to Cisco’s actions in China should give Cisco, and other American corporations working with the Chinese Communist Party, pause and concern over their continued willingness to accept “blood-stained profits” from the Chinese Communist Party.

Let Cisco Systems know that their support of the Chinese Communist Party, and its efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated by contacting your elected representatives and by signing the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!.