Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Tuesday, November 6, 2007

Yahoo executives grilled by House Foreign Affairs Committee

The House Foreign Affairs Committee held hearings today on Yahoo's role in the prosecution of Shi Tao, a topic on which I've blogged before (most recently, here). Testifying before the Committee were Jerry Yang and general counsel Michael Callahan. Specifically relevant to this hearing, Chairman Tom Lantos has accused Yahoo of providing false information to Congress in earlier testimony by Michael Callahan (see Lantos' statement here). According to a Yahoo-sympathetic report of the proceedings by CNET's correspondent, Yahoo admits that the information Callahan provided - that Yahoo did not know of the nature of the investigation - was inaccurate: as Lantos' statement points out, "[T]he document provided to Yahoo! China on April 22, 2004 by the Beijing State Security Bureau stated, 'Your office is in possession of the following items relating to a case of suspected illegal provision of state secrets to foreign entities…'" Lantos is not prepared to say that Callahan in fact knew this and was actually committing perjury, but expresses astonishment that a translation of this key document was never provided to Callahan as he prepared for his earlier testimony. Lantos also states:

Six months after his testimony, Mr. Callahan became aware that some officials of Yahoo! did know the nature of the investigation against Shi Tao at the time it complied with the Chinese request for information. Despite Mr. Callahan’s explicit recognition that his previous testimony was inconsistent with the facts, neither Mr. Callahan nor anybody at Yahoo contacted the Committee, orally or in writing, to advise us that Yahoo had provided false information to the Committee.

I don't yet have a transcript of the hearing, so I don't what Yang and Callahan had to say in response to this; much of the time seems to have been spent in statements by Committee members.

If I may be forgiven for quoting myself, I think an important issue is being overlooked:

Once again, it seems, the complex structure of Yahoo's East Asian operations is confusing people and diverting attention from an important issue. Forget about the debatable issue of how much information the search warrant really provided. What the CFA's press release does not notice, and what the Yahoo spokesman does not deny, is that the documents (again, if genuine) appear to refute conclusively Yahoo's explicit contention, made elsewhere in general counsel Callahan's testimony, that the Yahoo entity named Yahoo Holdings (Hong Kong), Ltd. (Yahoo HK) had nothing to do with any of this, and that the information demand was made to (and the information supplied by) Yahoo's Chinese-incorporated entity. The documents show that the demands were addressed in one case to Yahoo HK's Beijing representative office, and in another case simply to Yahoo HK generally. They also show that in at least one case, information was supplied by Yahoo HK (or at least the document has a Yahoo HK stamp on it).

This is more than just a technical issue. If Yahoo HK released the information, it may have violated Hong Kong privacy laws. And as I argued in my post yesterday, Yahoo HK is really in no different position vis-a-vis the PRC authorities than the US parent, where many people (including me) have e-mail accounts.

There are important issues involved here; among other things, in some cases simply doing business in China involves some distasteful choices. Are we really prepared to say that US companies should simply stop doing any business in China? That seems a bit extreme; I think reasonable people of good conscience could reach a different conclusion, and it's never been my intention in my posts on this topic to engage in intemperate Yahoo-bashing. At the same time, it's impossible even to discuss these issues intelligently if the factual background of who knew what when is not well understood.

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