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 the international law violations of torture, arbitrary detention, disappearance, and extrajudicial killing were substantially likely to take place.
The plaintiffs sued Cisco for the company’s role in building and deploying the “Golden Shield,” also referred to as “The Great Firewall of China”—a vast surveillance system that Cisco began building in the late 1990s and that the company customized to enable the Chinese government to target disfavored minorities, including members of the Falun Gong religion.
The thirteen plaintiffs—Falun Gong practitioners—alleged arrest, detention, and torture, including of themselves and family members, at least one of whom died by beating while being detained. The allegations were horrific: the plaintiffs were placed in forced labor camps, beaten with steel rods, shocked with electric batons, and endured sleep deprivation and violent force-feeding.
Importantly, the plaintiffs also alleged that their private emails, text messages, and other information—intercepted by the Golden Shield—were shown to them and used as part of their torture and forced conversion sessions, which included threats to their family members and others who had communicated with them.
And now, Cisco is off the hook for all of this.
Congress Must Act to Hold American Tech Companies Accountable for Aiding and Abetting Human Rights Abuses
As we argued in our amicus brief to the Supreme Court, a robust federal statute is necessary given that voluntary and informal mechanisms of corporate human rights accountability are inadequate.
The plaintiffs filed their lawsuit in 2011. The following year, in 2012, Cisco first published its Global Human Rights Policy. Since then, the company has never provided redress to the plaintiffs, despite its currently operative human rights policy stating:
Where we have identified that we have caused or contributed to an adverse human rights impact, we are committed to providing access to and cooperating in remediation for affected individuals, workers, and communities through legitimate processes.
What’s more, the Associated Press conducted an extensive 2025 investigation, which recently won the Pulitzer Prize, further mapping Cisco’s and other American tech companies’ involvement in creating China’s surveillance state over the past three decades. When questioned by the AP reporters, the companies dismissed any notion of human rights obligations and simply “said they adhere to relevant export controls, laws and regulations where they operate.”
In short, Cisco’s commitment to human rights is a fiction.
Given that the U.S. Supreme Court has effectively read the ATS into non-existence, Congress must now step up. While there might be other avenues for redress including under state law, there must also be a comprehensive federal human rights law allowing any plaintiff to hold American companies—especially technology companies—accountable for aiding and abetting human rights abuses, with knowledge or intent that those abuses would occur, and whether the victims suffered those abuses in the U.S. or in foreign countries.
The implications of this gap in U.S. human rights law are significant. As Prof. Harold Koh considered:
[T]he 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.
American companies should not have a free pass to build out surveillance states (or other technologically sophisticated systems) that not only violate personal privacy or facilitate censorship, but that can also lead to real-world physical violence and even death.