The Cyber Resilience Act, an Accidental European Alien Torts Statute?

Published by The Lawfare Institute in Cooperation With

What if someone is harmed by their own government, but the technology used against them was created by a company based in the United States? Should that person be able to hold the American company responsible? The United States may soon have an answer, as this very question continues to wind its way through the American court system. Europe may have one soon too, though as an unintended result of recent legislative decisions, rather than through deliberations in the courts. 

In the United States, the Court of Appeals for the Ninth Circuit recently overturned an earlier decision in Doe v. Cisco Systems, which had prevented members of Falun Gong, a religious group from China, from bringing a claim against Cisco Systems. This claim was based on allegations that Cisco aided and abetted the Chinese government in carrying out torture by designing and providing the surveillance system used by the Chinese government. The basis for the claim is the Alien Torts Statute (ATS), which enables private parties to bring a claim for breaches of public international law.

The ATS does not provide carte blanche for disgruntled aliens to mount claims against American companies. In Kiobel, the Court applied a presumption against extraterritorial application of the ATS, which it reinforced in the Nestle case by confirming that the relevant actions of the company must have taken place within the United States. The recent decision in Doe, however, is based on the fact that the alleged work by Cisco in designing and improving the systems used by the Chinese government took place within the United States. 

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