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April 19, 2007

Yahoo! Sued Over China Disclosures

Yahoo! is being sued in federal district court in San Francisco by the wife of a Chinese dissident who was tried and convicted on the basis of evidence supplied to Chinese authorities by Yahoo.  Wang Xiaoning used email accounts to post information to online forums and other public areas of the web that called for democratic reforms in the People's Republic.  Yahoo!'s agreement with the Chinese government is to turn over information upon request in order to do business in that country. 

Google and Microsoft have similar understandings with China as a condition of participating in the Internet market there.  All three companies came under fire by congress for cooperating with the Chinese government rather than resisting in suppressing free speech.  A hearing was held in the House on February 15th, 2006 entitled "The Internet in China:  A Tool for Freedom or Suppression?"  Links to the hearing transcripts, including a document from Yahoo! responding to specific questions by the committee are available on this page.  Here is an excerpt that is relevant to the current lawsuit:

2.  Describe the legal process by which Yahoo! receives a request to censor or provide electronic information. What documents does the government of China present and how specific are the documents?

• The procedure that Yahoo! China utilized when Yahoo! Inc. had operational control of the China business prior to October 2005, was that Yahoo! China responded only to officers authorized by their respective law enforcement agencies to submit a law enforcement demand. Yahoo! China required the information demand to be in writing on official law enforcement letterhead with official agency seal. Yahoo! China only provided information as legally required to comply with government demands and construed demands in the narrowest way possible to avoid revealing any unnecessary information about our users while still complying with the legal demand. A demand was always for specific information relating to an exact user ID.

3. Describe the established procedures for handling Chinese requests for censorship and Yahoo user personal information? Are there requests for clarification? Are there automatic referrals to U.S. headquarters/legal counsel? Are there legal appeals?

• When Yahoo! China had operational control of the China business prior to October 2005, Yahoo! China employed a rigorous process for responding to such demands. Yahoo! China responded only to officers authorized by their respective law enforcement agencies to submit a law enforcement demand.  Yahoo! China required the information demand to be in writing on official law enforcement letterhead with official agency seal. Yahoo! China only provided information as legally required to comply with government demands and construed demands in the narrowest way possible to avoid revealing any unnecessary information about our users while still complying with the legal demand. Unfortunately, to our knowledge, there is no process for appealing such a demand in China. PRC law gives law enforcement authorities the right to demand and receive user information in the exercise of their investigative powers. These matters were dealt with by legal counsel in the Beijing office and were not referred to U.S. headquarters.

4. In what circumstances would you refuse a Chinese request?

• When Yahoo! China had operational control of the China business prior to October 2005, Yahoo! China’s process required that law enforcement provide such demands in writing from specific, authorized officers. Arbitrary and extra-legal demands were not complied with by Yahoo! China.

Yahoo! China has in October, 2005 merged its business in China with Alibaba.com, their original Chinese partner.  Google, Microsoft, and other Internet services have similar partnership agreements with local providers per Chinese law.

The complaint was issued on behalf of Yu Ling, wife of Wang Xiaoning, by the World Organization for Human Rights USA. Claims are based on provisions of the Alien Tort Statute, the Torture Victim Protection Act, the Electronic Communications Privacy Act, and a number of California statutes.  A PDF copy of the complaint is available from links on the main page of the organization. 

The complaint reads as much as a diatribe on Chinese human rights practices as it does a legal document requesting relief and damages.  Some of the language is conclusory, but there is probably enough there to keep it in court for a while, at least until the proofs are developed.  The proofs will be the interesting part as much of the evidence for the alleged torture of Wang is in China and may not be available for presentation to a court in San Francisco.  Yahoo! is certainly complicit in the prosecution of Wang according to the complaint.  The complaint alleges that the turnover was voluntary rather than through a subpoena process as occurs here in the United States.  Some of the alleged evidence comes from documents developed at Wang's trial identifying Yahoo! as the source of information tying Wang to the email address used to spread anti-government information.

When congress held hearings on U.S. Internet providers as working with the Chinese to suppress political speech, there was a lot of thunder about creating legislative solutions to how these businesses should operate.  No legislation ever did come out of these hearings in the 109th congress nor is there anything of note in the current congress.  The lawsuit may focus attention on the issue again, but unless Yu and the World Organization for Human Rights USA can get past the allegations, all the suit will be is more publicity for a problem with no foreseeable solution. 

The Conundrum with China is that it is a huge developing market with a government that is not designed in the image of western democratic principles.  We want access to the masses for the money, and look the other way relative to human rights practices in order to get that access.  That alternative look gets uncomfortable sometimes, and Wang's case is a perfect example.  It's too soon to expect the Bush administration to get involved, if it does at all.  There are extensive western business activities in China that are jeopardized if human rights are pushed too far.  That's the practical problem the administration faces:  how to remake the bad parts of this relationship while keeping the good.  An absolute stand on principle doesn't seem to be the obvious solution.  Google, Microsoft, and other businesses will be watching how this develops.

Stories are in PC World, Ars Technica, ZDNet, and for fun, here's the report in Aljazeera.

April 19, 2007 | Permalink

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