Saturday, January 16, 2010
The Procuratorial Daily (检察日报) has published a list of the top ten "constitutional events" (十大影响性宪法事例) of 2009. This doesn't exactly mean "cases", and it doesn't exactly mean "constitutional"; they mean something more like "top ten events that implicated constitutional-type issues".
Interestingly, however, the on-line article has only nine events. The third is numbered but left blank. What event made it on the list and then caught the attention of the censors and had to be deleted because it was too sensitive? The forced nationalization of coal mines in Shanxi, that's what. Fortunately, the original text is still available in the PDF version of the article that's available at the PD's web site (I'm linking to a copy I downloaded just in case it disappears from the PD's web site).
Just to save you some time, here's the text that was too sensitive to print:
清华大学教授林来梵：政府强制国有企业兼并小煤矿，是否构成了征收？ 如果不构成征收，是否违反公民合法的私有财产不受侵犯的精神？为何不通过加强对小煤矿的管理解决现实问题，兼并是否违反了比例原则（即行政手段所造成的损害与产出的社会利益成比例原则）？ 非公有制经济是社会主义市场经济的重要组成部分，一方面我们要鼓励和促进非公有制经济发展#另一方面国家也有必要让国有经济在关系到国计民生和国家安全的领域中处于主导作用#问题是这里的边界何在？ 仍然没有明确的分界。
There are some other interesting events in this top ten list about which I'll blog later.
Thursday, January 14, 2010
That's what happened to the lawyers for Cybersitter, the California software developer that's suing the PRC government (among others) on charges they pirated Cybersitter's software in developing Green Dam. Here's the report.
Rich Kuzlan's AsiaBizBlog has also posted the complaints in the case. Here are the links:
Tuesday, January 12, 2010
Google responds to suspected Chinese cyber-attack: Will uncensor Google.cn, reconsider China operations
This is pretty big news. Google has posted an announcement saying that it will uncensor Google.cn and reconsider its China operations. (Here's the New York Times story.) It recognizes that uncensoring Google.cn may mean it will have to shut down the site and its China offices. The announcement is worth reading in full, but here's the reason for this extraordinary development:
Like many other well-known organizations, we face cyber attacks of varying degrees on a regular basis. In mid-December, we detected a highly sophisticated and targeted attack on our corporate infrastructure originating from China that resulted in the theft of intellectual property from Google. However, it soon became clear that what at first appeared to be solely a security incident--albeit a significant one--was something quite different.
First, this attack was not just on Google. As part of our investigation we have discovered that at least twenty other large companies from a wide range of businesses--including the Internet, finance, technology, media and chemical sectors--have been similarly targeted. We are currently in the process of notifying those companies, and we are also working with the relevant U.S. authorities.
Second, we have evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists. Based on our investigation to date we believe their attack did not achieve that objective. Only two Gmail accounts appear to have been accessed, and that activity was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.
Third, as part of this investigation but independent of the attack on Google, we have discovered that the accounts of dozens of U.S.-, China- and Europe-based Gmail users who are advocates of human rights in China appear to have been routinely accessed by third parties. These accounts have not been accessed through any security breach at Google, but most likely via phishing scams or malware placed on the users' computers.
The reasons for Google's response are set forth in the announcement, but the import is clear: Google will probably end up leaving China, since it is hard to believe the Chinese government will accept an uncensored Google.cn. Just for the historical record, here's what censoring does now: I ran searches today for pictures with the term "Tiananmen" on Google.com and Google.cn. The results are below (Google.com first and Google.cn after; click to see full picture).
That was Google.com. Now for Google.cn's results:
Looks like there's something somebody would rather you didn't see, doesn't it?
I think Google has gotten something of a bad rap for doing this kind of censorship. They haven't censored Google.com, and Google.com is still accessible in China. I use it all the time there. It seems to me that Yahoo and Microsoft are far more deserving of opprobrium. (Microsoft, at the request of the Chinese government, shut down the blog of someone the latter didn't like even though the blog was hosted by Microsoft on a server outside of China, and now censors results from simplified-character searches on Bing; you can follow my trail of Yahoo-related posts here. See also this piece by Nick Kristof in the New York Times.)
In any case, it seems that Google has had enough. I will leave the praise and criticism of this particular move to others. But as a tangential matter, the corporate law professor in me can't help but wonder whether, assuming this move hurts Google financially, Google's management hasn't violated its fiduciary duties. It's very hard for shareholders to bring these kinds of claims in practice (it would have to be a derivative suit) because management can always claim that the move in question is in their judgment good for the company's bottom line, and a court will be very reluctant to second-guess that in the absence of some obvious conflict of interest. The interesting thing here is that management has openly stated that they are doing this for non-business-related reasons:
We launched Google.cn in January 2006 in the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results. At the time we made clear that "we will carefully monitor conditions in China, including new laws and other restrictions on our services. If we determine that we are unable to achieve the objectives outlined we will not hesitate to reconsider our approach to China."
These attacks and the surveillance they have uncovered--combined with the attempts over the past year to further limit free speech on the web--have led us to conclude that we should review the feasibility of our business operations in China.
(I know some of you lawyer readers are already thinking, "Wait a minute; we can read a business-related justification into that!" Well, a skilled lawyer can read anything into anything, but I'm going to stick with my claim that this is reasonably interpreted as non-business-related.) Despite the tenor of this statement, though, business-judgment-rule deference plus political realities make it hard for me to imagine a court finding the directors liable for any resulting loss of business. Take a look at Shlensky v. Wrigley and Kamin v. American Express.
Monday, January 11, 2010