The Supreme Court’s Cisco Ruling Clears the Way for U.S. Tech to Aid Repression Abroad

David J. Scheffer focuses on international law and international criminal justice, and served as the first U.S. ambassador-at-large for war crimes issues. He joined an amicus brief of former U.S. ambassadors-at-large for war crimes issues/global criminal justice and prosecutors of international crimes in support of the respondents in Cisco Systems, Inc., et al. v. Doe I, et al. at the Supreme Court. 

On June 23, the U.S. Supreme Court ruled [PDF] in favor of Cisco Systems, a major U.S. multinational technology corporation, in a civil suit brought by victimized members of the Falun Gong spiritual movement. These members alleged in 2011 that Cisco aided and abetted the Chinese Communist Party (CCP) by developing customized software dubbed “Golden Shield” at its California offices and selling it to Chinese authorities, who used it to identify, arrest, torture, and otherwise commit international crimes against thousands of Falun Gong practitioners. The Court could have remanded the case to the lower courts to examine the proffered evidence of Cisco aiding and abetting the actual commission of such crimes. Instead, the Court’s majority chose to eliminate any such inquiry by denying the possibility under law of corporate liability, even if the evidence were to prove the nefarious character of Cisco’s involvement.  

The Court’s judgment in Cisco Systems, Inc., et al. v. Doe I, et al. will join earlier ones [PDF] that have made it far more difficult to hold U.S. corporations accountable under federal law for committing or being complicit in atrocity crimes or other human rights violations overseas. The implications are particularly significant given the vast global footprint of U.S. technology companies. In plain language, the Supreme Court effectively cleared the way for U.S. corporations to enable foreign governments, particularly repressive regimes, that would surveil individuals and violate their human rights.

The violations of international law at stake

Falun Gong members—practitioners of a spiritual movement banned by the Chinese government and who have been subjected to violent persecution—allegedly suffered six additional violations of international law beyond torture: cruel, inhuman, or degrading treatment; forced labor; prolonged and arbitrary detention; crimes against humanity; extrajudicial killing; and forced disappearance. These are long-standing violations of customary international law and are also codified in international treaties.  

In their brief [PDF] before the U.S. Court of Appeals of the Ninth Circuit in 2023, thirteen Chinese nationals and one U.S. citizen (all Falun Gong adherents) described what personally happened to them:

Respondents or their associates were each identified, apprehended, and tortured after the Golden Shield captured their online religious activity . . . . Officers referred to Golden Shield-derived information during sessions where they beat Doe I with an electric baton, leaving her bloody and swollen. And when officials tortured Doe IV, including by pouring ice water on his body, they brought up traces of his Falun Gong internet activities, including his emails and his anonymous creation of a Falun Gong website. Officers likewise used Golden Shield-derived information about Respondents’ family members during torture sessions, as when officers made threats against Mr. Wang’s wife and questioned Mr. Wang about her whereabouts and messages to other Falun Gong believers. Respondents estimate that thousands of Falun Gong believers were identified, apprehended, and tortured by the CCP using Cisco’s technology. None of this could have occurred without Cisco’s essential contributions. (citations omitted)

Both the State Department and Congress have condemned China’s treatment of the Falun Gong.  

The Ninth Circuit concluded [PDF] that aiding and abetting liability could be pursued against Cisco. But the Supreme Court reversed the lower court and nullified any effective examination under federal law of claims that Cisco’s operations aided and abetted Chinese policies of violent repression against the Falun Gong. The majority speculated, “The political branches or other international actors may well provide redress.” But not U.S. courts. 

The Supreme Court overturned its major precedent for corporate liability 

One of the first laws adopted by a young United States, the Alien Tort Statute of 1789 (ATS) ensured that violations of “the law of nations or a treaty of the United States” against an alien could be litigated as a civil tort action in federal district courts. While there were several ATS cases in the early republic, the law lay relatively dormant until it was revived in a torture case in 1980. By 2022, only 300 ATS suits [PDF] had been filed in federal courts, with 52 cases succeeding and 248 being dismissed.  

In 2004, the Supreme Court delivered its judgment in Sosa v. Alvarez-Machain [PDF], firmly establishing the modern interpretation of the ATS. To succeed, the Supreme Court in Sosa required that the plaintiff had to prove an actionable violation of “any international law norm” that met the “historical paradigm familiar when [the ATS] was enacted [in 1789].” That did not mean enforcing only three well-known norms in 1789, namely violation of safe conduct over foreign territory, infringement of the rights of ambassadors, and piracy—together known as the “Blackstone three.” Rather, the Sosa judgment ruled that applying the necessary paradigm in the twenty-first century required identification of a norm of international law that has sufficiently “definite content” that has gained “acceptance among civilized nations.” International law evolves, and the Supreme Court concluded that the original intent of the Founders who crafted the ATS envisaged that the statute would operate under that reality going forward. Further, courts had to reach a “judgment about the practical consequences of making that cause available to litigants in the federal courts.” The latter point raised, for consideration, the prospect of how U.S. foreign policy might be affected by the court’s decision.  

While the Cisco majority did not explicitly overturn Sosa, the six majority justices limited the ATS only to the Blackstone three and essentially denied liability for aiding and abetting violations of international norms. They held, “Today, we close the door that Sosa cracked and hold that courts may not create new causes of action for violations of international norms.” They rendered the ATS a toothless relic that corporations may ignore in direct or complicit violation of universally accepted international norms, including prohibitions of genocide, crimes against humanity, torture, war crimes, and aggression. The ATS has now been radically limited to likely a very small class of random individuals who personally wage piracy, attack ambassadors, or impede safe conducts. It would be unsurprising if some corporations are now incentivized to profit from violating international human rights standards abroad.

Importantly, the majority further denied any corporate (or individual) aiding and abetting liability for torture or extrajudicial killings under the Torture Victim Protection Act of 1991, which the plaintiffs in Cisco had also sought to enforce.  

Justice Sotomayor’s dissenting opinion 

In her dissent, Associate Justice Sonia Sotomayor (joined in most part by Associate Justices Elena Kagan and Ketanji Brown Jackson) delivered several pointed remarks resting upon her support for the Sosa precedent. Among them, she wrote, “The Court…closes the courthouse doors not just to [the Falun Gong litigants], but to virtually every future litigant seeking redress for a violation of international law under the ATS. It thus overrules Sosa, without even acknowledging that it is doing so. Today’s decision marks yet another low point in this Court’s esteem for its precedents.” In a later footnote, she added, “The majority urges ‘judicial humility’ when it comes to matters of foreign affairs…True judicial humility, however, is following precedent and respecting the wisdom of the jurists.” While dissenting opinions lack the enforceable character of majority opinions, views expressed in these contrarian passages can shape public opinion, sway Congress to act, and influence future rulings.

Implications for the U.S. tech industry

The Cisco judgment opens new opportunities for corporate complicity in human rights violations and unlawful warfare through high-tech means, free of civil liability. Yale law professor Harold Hongju Koh wrote recently in Just Security of precisely this danger that the majority opinion has now enabled:  

As repressive regimes around the world increasingly apply digital surveillance to unlawfully arrest, detain, torture, disappear, and summarily execute victims, the Justices should wonder whether adopting Cisco’s bright-line exemption of even active aiders and abettors would turn the United States into a safe harbor for digital abusers.

No less urgently, the Justices should ask whether affording such immunity in Cisco would implicitly signal to U.S. companies that they could not be held liable for assisting the U.S. government in committing gross violations. Such violations could include constructing a mass surveillance system that may be used to surveil, persecute, retaliate against, and punish real and perceived opponents and constructing systems that autonomously commit war crimes.

Nonetheless, emerging opportunities exist to pursue multinational corporate liability claims—including aiding and abetting—in state and foreign courts. Attorneys representing either human rights victims or corporations would do well to understand this evolving legal landscape.

This work represents the views and opinions solely of the author. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher, and takes no institutional positions on matters of policy.