Falun Gong v. Cisco – Aiding the Golden Shield

This case brings to question similar issues of ambiguity brought against U.S. Code Title 18 §2512 in U.S.A. v. Spy Factory. While the plaintiffs are accusing Cisco Systems of “purposefully provid[ing] the Golden Shield technology to the Chinese authorities as the only or primary means by which Plaintiffs could be identified as Falun Gong” (Doe v. Cisco Systems, pg. 44), did Cisco intentionally make and sell the devices (routers and firewalls) knowing that they would be “primarily useful” for the “surreptitious interception” of the Plaintiff’s “electronic, wire,  and/or oral communications”?  The Plaintiff could possibly use a slide containing the words “Combat ‘Falun Gong’ evil religion and other hostiles” found in a Cisco Systems presentation regarding the goals of the Chinese government for the Golden Shield project as evidence of this (Cisco Presentation, slide 57).  While this might be used to suggest that Cisco had knowledge of the government’s intent to use their equipment against Falun Gong, this does not prove that the primary use of the devices is for wiretapping and might fail in a claim against USC18§2512(1)(b).

Similarly, another question is whether or not Cisco falls under advertisement portion of USC18§2512(1)(c). Did Cisco intentionally advertise to the Chinese Government that they would be able to wiretap the Falun Gong using their devices? This claim might fail in the same manner as above. The scienter requirement (i.e. including “intentionally” in the statute) of Section 2512 is quite powerful and helps save against vagueness claims regarding the statute (U.S.A. v. Spy Factory).

We must also ask, is Cisco exempt under U.S. Code Title 18 §2512(2a)? This begs the question of whether or not Cisco Systems is considered a provider of wire or electronic communication service. Even if Cisco Systems is considered a such a provider, do their actions qualify within the normal course of business of providing such wire or electronic communication service? Typically network systems do not necessarily work out of the box; configuration is usually required and is not unlikely that customer support would assist in setting up such communication devices to fit the client’s needs. Cisco’s actions seems to fall well within the normal course of business.

This statute (§2512) creates an interesting barrier of entry into the field of such interception devices. It unfairly biases companies that have existing government contracts to build and test such products. There is also ambiguity in where liability lies for educational use.

We also feel that there could be parallels to the origins of our right to bear arms. Our right to bear arms was provided as a means to add self protection from the government. In this modern age, how do we protect ourselves from unwarranted surreptitious interception of communications? However, there is a departure in parallels in that possession of said devices does not equate to defense against the same devices. Do U.S. citizens have a legal means to protect themselves from such recording by the government or a “domestic provider of wire or electronic communication service” and others authorized to do so? As history has shown, we can’t expect to rely on the government to “do the right thing”.

Finally, what are the legal parameters for liability in situations of business overseas? It seems unlikely that United States legal system would apply to actions that occur overseas. Should Cisco be found guilty of violating U.S. Code Title 18 §2512(1), this brings the question of how far does the United States jurisdiction extend? What should companies do in situations where compliance with local laws are at odds with United States’ Law? Such a decision would implicate far more than just the manufacturing and selling of communication intercepting devices.