The Supreme Court in a 6-3 decision granted American corporations legal immunity for engineering the surveillance states that persecute their customers.
The plaintiffs are practitioners of Falun Gong, a meditation practice the Chinese Communist Party has spent two decades trying to destroy through detention, forced labor, and torture. They sued Cisco Systems under the Alien Tort Statute of 1789—a law that grants federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” They alleged that Cisco did not merely sell off-the-shelf routers. They alleged that Cisco engineers sat alongside Chinese authorities configuring the systems that identified Falun Gong practitioners, tracked their movements, and sent them to camps. According to the allegations in the case, the surveillance architecture was specifically calibrated to identify, track, and facilitate the persecution of their religious community.
The Ninth Circuit allowed those claims to proceed. Justice Amy Coney Barrett, writing for the Court, reversed.
The strongest form of Barrett’s opinion rests on the statute’s original public meaning. The First Congress, the slip opinion notes, intended the statute to cover three specific offenses against the law of nations: violation of safe passage, infringement of ambassadors’ rights, and piracy. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), opened the door to modern human-rights claims after two centuries of dormancy. Barrett’s holding returns the statute to that original meaning, restricts it to state-actor offenses, and reassigns the creation of new causes of action to Congress.
The departure from this originalist framework begins at the point of application. Barrett’s framing omits that the mercantile corporations of the eighteenth century—the East India Company, the Royal African Company—were the primary subjects of the law of nations, including its prohibitions on piracy and the slave trade. The corporations of 1789 were not peripheral actors in the law of nations; they were its principal subjects. The “original meaning” the Court invokes did not exclude corporate defendants; it centered them. An originalist framework applied faithfully would have supported the Falun Gong claims, not foreclosed them.
The decision completes a sequence. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), installed the extraterritoriality presumption. Jesner v. Arab Bank foreclosed suits against foreign corporations. Nestlé USA v. Doe raised the aiding-and-abetting pleading standard. Cisco Systems v. Doe, slip op. at 12, now bars domestic corporations too. A corporate defendant can design a surveillance system for a genocidal regime, sell it across borders, and face no federal civil liability, because the Court has declared that Congress has not specifically authorized a cause of action for that exact technology.
The Court offers a separation-of-powers justification: federal judges should not adjudicate foreign torts when the political branches can provide redress. The political branches have provided no redress. The executive has not prohibited the export of totalitarian surveillance architecture. Congress has not amended the statute to clarify its application to corporate technology transfers. The same majority that disarmed the Voting Rights Act in Shelby County v. Holder, 570 U.S. 529 (2013), on the premise that Congress should update its formulas, now closes the federal courthouse to victims of foreign persecution on the premise that Congress can act in the future. Deferring to a political branch that has chosen silence is not separation of powers; it is the judicial construction of an impunity shield.
The right being rejected here is the right of a Falun Gong practitioner who was tortured to have her day in an American courtroom. The right being rejected is the right of a foreign worker beaten on an American-owned supply chain to seek redress in the country where the corporation is headquartered. The same Justices who manufacture expansive new rights for corporations close the courthouse door to the victims of corporate complicity in foreign atrocity. They are at least consistent in this much: they are not in the business of protecting the politically powerless. They are in the business of protecting the politically powerful.
The Court calls this restraint. The practitioners call it complicity.