The following item was posted recently on Foley Hoag’s Corporate Social Responsibility and the Law blog, and we thought it would be of interest to our readers. Companies seeking to develop privacy policies that both comply with national laws and respect internationally recognized human rights often face difficult challenges, especially when confronted with specific host government requests. All companies concerned with the human rights implications of their activities are advised to assess the sufficiency of existing policies as well as the company’s capacity to identify and manage potentially challenging scenarios.
Isa Saharkhiz, an Iranian journalist who has been in detention in Iran since June 2009, and his son, a resident of New Jersey, recently filed suit against Nokia Siemens Networks (“NSN”), a joint venture of Nokia Corporation and Siemens Corporation. The lawsuit, filed on August 16 in the District Court for the Eastern District of Virginia, includes claims under the Alien Tort Statute (“ATS”) and the Torture Victim Protection Act and alleges that NSN aided and abetted the Iranian Government in detaining and torturing Mr. Saharkhiz.
Plaintiffs specifically allege that the Iranian Government used technology supplied by NSN to monitor the mobile communications of, and locate, Mr. Saharkhiz prior to his arrest. Both Nokia and Siemens were also individually named in the lawsuit.
NSN has admitted that it sold mobile networks to Irancell as well as Mobile Communications Company of Iran (“MCI”), which is Iran’s largest cellular operator and is owned by the state-controlled Telecommunication Company of Iran (“TCI”). These networks included lawful intercept capability, as is required by law in most countries and by the global standards developed by the European Telecommunications Standards Institute. More controversially, NSN provided a monitoring facility to MCI/TCI which allowed Iranian authorities to utilize the intercept capability to monitor local calls made within Iran. NSN subsequently halted all work related to the monitoring facility in Iran in 2009.
NSN’s provision of telecommunications monitoring capabilities to Iran has brought the company under significant levels of international scrutiny and criticism. In a June 2010 statement to the European Parliament Subcommittee on Human Rights, Barry French, Head of Marketing and Corporate Affairs for NSN, conceded that monitoring facilities are “problematic and have a risk of raising issues related to human rights that we are not adequately suited to address.” Mr. French also observed that ”we believe that we should have understood the issues in Iran better in advance and addressed them more proactively.”
In his June 2010 remarks, Mr. French also emphasized that NSN provides “technology that is intended to be used in ways that support human rights. When that technology is misused, the accountability must sit with those who misuse it.”
NSN and the other defendants in the lawsuit brought by Mr. Saharkhiz will likely challenge both the forum of the suit as well as the ability of the court to properly assert jurisdiction over the defendants. If the case proceeds, it could bring to the forefront the question of what standard courts should use in evaluating “aiding and abetting” claims in ATS cases. If the Court reaches this issue, it may decide to endorse the Second Circuit’s standard, as set forth in Presbyterian Church of Sudan v. Talisman Energy, Inc. 582 F.3d 244 (2d Cir. 2009), which held that defendants may only be found liable under an aiding and abetting theory of liability if they provide substantial assistance to the primary violator with the purpose of furthering the human rights violation. This a high barrier to plaintiffs’ claims.
Under a less strict “knowledge” standard for aiding and abetting liability, plaintiffs may have an easier time surviving a motion to dismiss. In In Re South African Apartheid Litigation, 617 F. Supp. 2d 228 (S.D.N.Y. 2009) (decided before the Second Circuit’s decision in Presbyterian Church of Sudan), the Court held that a defendant could be held liable if it knew that its actions would substantially assist a perpetrator in the commission of a crime or tort in violation of the law of nations. By that standard, the Court said “[o]ne who substantially assists a violator of the law of nations is equally liable if he or she desires the crime to occur or if he or she knows it will occur and simply does not care.”
In thinking through the implications of a lower “knowledge” standard for the NSN case, it is notable that the Court in the South Africa case denied defendants’ motion to dismiss plaintiffs’ claims that International Business Machines (“IBM”) aided and abetted the South African Government in carrying out acts of apartheid. The Court relied upon plaintiffs’ allegations that IBM provided the South Africa Government with computers, software, training and technical support that was specifically used to produce identity documents and administer a denationalization program. The Court found that “given that IBM provided the programming expertise as well as the hardware, there is a plausible inference that the company understood the nature of the projects it assisted.” With the standard for aiding and abetting liability unsettled, litigation in the case against NSN will likely involve in-depth inquiry into the nature of the company’s assistance to Iranian officials, particularly with regard to the monitoring facility.