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U.S. technology companies doing business abroad are discovering a new risk under a very old statute. Foreign plaintiffs have begun bringing lawsuits in U.S. courts under the Alien Tort Statute (ATS), alleging that technology companies and their executives are violating international law by facilitating human rights abuses through the use of their products and should be held accountable here. The ATS, enacted in 1789 to provide a weapon against piracy and affronts to U.S. diplomats abroad, has enjoyed a renaissance over the past 30 years as U.S. companies have expanded their global operations. Technology companies appear to be the target du jour. Recent cases present chilling tales of human rights violations by foreign governments, with U.S. companies and their executives alleged to be facilitators, through their products, of the illegal acts. ATS cases can impose a huge toll on defendants, subjecting them to years of costly litigation, to say nothing of the glare of media coverage. But some relief may be in sight. In October 2011, the U.S. Supreme Court agreed to hear on appeal Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), taking up the question of whether corporate defendants can ever face liability under the ATS. If the answer is “No,” as held by a divided panel of the Second Circuit, that would end the use of the ATS as a weapon against corporations accused of human rights violations. But corporate executives take note: The battleground will likely shift from corporate defendants to individual defendants, raising new legal issues that are presently working their way through the lower courts.

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