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!

 

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!.

Excellent Electronic Frontier Foundation Post on Du v. Cisco

The EFF continues its active interest in Du v. Cisco.  The EFF’s recent post, “Cisco and Abuses of Human Rights in China: Part 1” provides a comprehensive background on Du v. Cisco and addresses the ethical issues corporations face when dealing with oppressive regimes.  It is an excellent read for any and all interested in these important issues.

Most important to this of us involved in Du v. Cisco was the EFF’s call for action (directed at Cisco) to preserve the safety of our clients.  In the post, the EFF writes:

“To clarify, we are asking Cisco to contact their customers and business partners in the Chinese government and tell them not to target the plaintiffs in Du v. Cisco or Doe v. Cisco. We hope Cisco will prove that they don’t condone bullying tactics used to repress free speech and that they believe these disputes should be settled under the rule of law, not the iron fist. We’d be particularly pleased if Cisco would make a public statement about their stance on the continued safety of the plaintiffs – and it would certainly go a long way to improving their public image at this time when the world is watching. But above all, we urge Cisco to use every method at their disposal to ensure that Du Daobin and all of the plaintiffs in both cases make it through the court process, and beyond, unharmed by Chinese officials.”

We couldn’t agree more.  Hopefully Cisco does as well, and will let the Chinese Communist Party know that their harassment of the Du Plaintiffs (and those in Doe v. Cisco) is neither wanted nor helpful.  Time will tell.  I am looking forward to reading “Part II” of this series.

Daniel Ward interviewed tonight at 9:00 PM re: Du v. Cisco

Daniel Ward will be interviewed this evening at 9:00 PM on the Asia Pacific Forum about Du v. Cisco in a segment titled “Partners in the Police State?  US Tech Giant Cisco Sued for Aiding China.”  If you are in the New York City listening area, tune in to WBAI, 99.5.  Otherwise, listen on the web.

Again, the safety of our clients in Du v. Cisco is dependent, in no small part, on the fact that the world is watching.  Keep watching, and let Cisco know you are are watching by signing the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!  We also ask that you contact your elected representatives in Congress and let them know that complicity in the abuse of human rights by American corporations should no longer be tolerated.

Who is Du Daobin?

Du Daobin is one of the earliest cyber dissident writers in China.  By the time of his detention in October 2003, he had published tens of articles on the internet at home and abroad. In June 2004, he was charged with “inciting to subvert state power” and sentenced to three years’ imprisonment. Instead of serving his prison sentence immediately, it was postponed while he spent four years under probation.

In June of 2008, on the eve of the Summer Olympics to be held in China, the authorities accused Du of disobeying the rules of probation, as he had continued to write articles critical of the regime. Thus, after four years of probation, Mr. Du was sent to serve his 3-year prison term. While in prison, he was subjected to physical and psychological torture and was held under the most stringent control.  He was forced to sit on a low bench for two months, which led to cardiac prolapse. After this incident, due to malnutrition and potassium deficiency, he lost his ability to walk and for a long time he was dependent on a wheelchair. Although today he is free and able to walk, Du remains under close watch. Who is this man that China views as such a threat, and what is it about his writings that has the government so nervous?

Du Daobin was born in Wuhan, Hubei Province in 1964. Formerly an employee of the district government, Du was a firm believer of communism. He read the works of Marx, Lenin, and Mao Zedong and took up writing poetry. After the tragic events of the 1989 Tiananmen Square protests, Du sympathized with the students and strongly opposed the killing that occurred. This marked an ideological and political turning point for Mr. Du.  Before officially becoming a Communist Party member, he retracted his application. He began to write works in support of the democracy movement and since 1997 he has been exploring the ideas of liberalism and promoting China’s path to democracy.

Originally just a supporter of the movement, as Du became more outspoken, he too became a victim of the government’s crackdown on freedom of speech. Starting in 2001, Du published articles on a number of Chinese websites, calling for fair treatment of city and rural dwellers, social security and fair wages for farmers, and for the abolishment of the discriminatory policies of usury towards farmers. He also published articles on foreign websites, severely criticizing Chinese Communist Party ideals and the one-party dictatorship system and policy.

Despite his sentencing in 2003, Du continued to write under a pseudonym and from January 2005 to June 2008, he wrote over 100 articles for Laogai Research Foundation’s Observe China website. His most influential writings from this period are those advocating for the installation of an election system in China, including: Chinese People Should Try by Every Means to Be Elected As Representatives, We Simply Can’t Do Without People’s Representatives, Indirect Democracy and Deputy Representatives: Shortcomings and Questions, Various Nonsense That Attempts to Prevent the Installation of Election in China, Peoples’ Sovereignty Dwells in Just and Fair Election, Direct Election and Social Stability: Are They In Sharp Contradiction? When Can China Kick Off Direct Election? These articles approach many aspects of the possible establishment of direct election in China or the modification of the existing People’s Representative system. They have been widely reposted after they were first published on Observe China. He continues to be an outspoken critic of China’s internet surveillance, oppression of freedom of speech, and the government’s handling of many social issues.

Du Daobin is no criminal, yet he has been continually persecuted by the Chinese Communist Party for expressing his ideas and encouraging public discussion about democratic reform. Even though Du was released in 2010, he is not really free. He is not able to use his real name to publish articles domestically or internationally; he is not allowed to leave China and he must report to the police department if he wishes to leave his city. Du’s guests are tightly regulated, questioned, and placed under surveillance.  The Public Security Bureau has threatened many times that they “may hinder his child’s educational advancement,” and on many occasions they have intercepted Du’s mail and royalty checks. His internet is constantly monitored, the speed of which is so slow that it sometimes takes an hour to load one page, and he constantly gets redirected to other webpages. He has not had a job since he was set free and thus does not have a stable income. As a result of this harassment and hardship, Du’s wife has moved out and left him solely responsible for raising their child.

This is why Du Daobin has taken part in the lawsuit against Cisco Systems, Inc. currently pending in Federal Court in Maryland. Through “Golden Shield” network and internet surveillance technology provided by Cisco, China’s Ministry of Public Security has been able to monitor and track down dissidents like Du who dare to exercise freedom of speech against the Chinese Communist Party’s wishes. Since filing the lawsuit, he has come under even closer scrutiny- Du was interrogated earlier this month by officials from the Ministry of Public Security about his involvement in the Du v. Cisco.

As I have said before, Du Daobin’s safety depends, in no small part, on the fact that the world is watching.  Keep watching, and let Cisco know you are are watching by signing the Electronic Frontier Foundation’s petition– Tell Cisco: Stop helping China abuse human rights!

This post was written by the Laogai Research Foundation.