The End of the “Off-the-Shelf” Defense

March 26, 2015

On the Just Security blog yesterday, Beth Van Schaack provides a legal analysis of a case against Cisco Systems pending in the Northern District of California. Brought on behalf of Falun Gong practitioners, Doe v. Cisco argues that the company helped the Chinese government with technology to construct, operate, and maintain the “Golden Shield,” a surveillance system allegedly used to target this religious minority for persecution.

When this story made headlines ten years ago, Cisco’s general counsel was hauled before Congress, the company faced a maelstrom of bad press, and the lawsuits followed. One of Cisco’s arguments at the time was that the company did not customize the technology for the Chinese government. 

That defense is increasingly hard for Cisco and peer companies to make. Technologically, the industry has moved beyond off-the-shelf hardware. As Forrester Research analyst Andre Kindness says, the networking technology world is now in the “Age of the Customer,” where “customers are defining network characteristics before the technology exists or has been developed by the vendor community.”

Enabling compliance has also become a selling point. Cisco’s new “Intercloud” product is marketed specifically for its utility in catering data management to local law. While post-Snowden privacy fears may be the driver, Cisco’s president of development and sales acknowledged that the product “allowed better control of “the ways customers can dial up and down” flows of information.” Sounds like censorship to me. 

Networking companies have avoided media scrutiny on human rights in recent years – and been absent from multistakeholder efforts like the Global Network Initiative. It’s time for them to join the conversation and work collectively to navigate human rights risks in tough markets.


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