Web Corporation Executives Lambasted by Congress
Censorship of the Internet in China continues to stir controversy and provoke legal challenges from free speech advocates.
On Nov. 13, 2007, Yahoo! Inc. and three Chinese dissidents settled a suit filed in U.S. district court in California which claimed that the Internet company turned over the plaintiffs to Chinese authorities who arrested and detained them arbitrarily and tortured them before jailing them for speaking out against the government.
Wang Xiaoning and his wife Yu Ling filed suit against Yahoo! on April 18, 2007 in Wang Xiaoning v. Yahoo!, Inc., Case No. C07-02151 (N.D. Cal. 2007). Wang was sentenced to 10 years in prison in China in 2003 for “incitement to subvert state power” because he allegedly distributed pro-democracy articles through a Yahoo! e-mail account and subscriber list.
Shi Tao, a former editor with the Dandai Shang Bao (Contemporary Business News), joined the suit on May 29, 2007. Shi was convicted for “divulging state secrets abroad” on April 30, 2005, and also sentenced to 10 years in prison for sharing with overseas colleagues an internal government message which recommended media restrictions during the 15th anniversary of the 1989 Tiananmen Square protests and massacre. (See “Update: Jailed Chinese Reporter Joins Suit Against Yahoo! Inc.” in the Summer 2007 issue of the Silha Bulletin. See also “Chinese Journalists Battle Censorship, Yahoo!” in the Winter 2006 issue, and “Endangered Journalists: Yahoo! Assists China in Arresting Journalists” in the Fall 2005 issue.)
The suit was filed under a number of statutes, including the Alien Tort Claims Act of 1789 and the Torture Victims Protection Act of 1991, both at 28 U.S.C. section 1350, which allow non-U.S. citizens to file civil suits in U.S. district courts for “violation of the law of nations or a treaty of the United States.” They also sued under provisions of the Electronic Communications Privacy Act, 18 U.S.C. section 2701 et seq.
Plaintiffs Wang, Yu, and Shi claimed that Yahoo! Inc., along with subsidiary Yahoo! Hong Kong and partner Alibaba.com, Inc. voluntarily provided e-mail content, e-mail addresses, and user account information to Chinese authorities, thus “knowingly and willfully aid[ing] and abet[ting] … the commission of torture and other major abuses violating international law that caused Plaintiffs’ severe physical and mental suffering.”
Full details of the November 13 settlement were not made public. However, according to the parties’ joint stipulation of dismissal, Yahoo! agreed to pay the plaintiffs’ costs and legal fees. The Los Angeles Times reported on November 14 that Yahoo! also agreed to create a fund to “provide support to other political dissidents and their families.”
The settlement came one week after Yahoo! chief executive Jerry Yang and lead counsel Michael Callahan faced strong criticism in a hearing before the House Foreign Affairs Committee. The Yahoo! executives were called before the committee on Nov. 6, 2007 to answer questions about Callahan’s Feb. 15, 2006 testimony before the House Subcommittee on Africa, Global Human Rights and International Operations, testimony which turned out to be misleading. According to The Associated Press (AP) on Nov. 13, 2007, although Callahan said in the 2006 hearing that Yahoo! had “no information” about the Chinese investigation when it handed over information about Yahoo! subscriber Shi, officials at Yahoo! actually knew more details about the investigation than Callahan had then acknowledged.
At the Nov. 6, 2007 hearing, Committee Chairman Tom Lantos (D-Calif.) scolded the Yahoo executives, telling them, “While technologically and financially you are giants, morally you are pygmies.”
According to the Los Angeles Times, Lantos encouraged Yang and Callahan to turn to Wang’s wife, Yu Ling, and Shi’s mother, Gao Qinsheng, who were seated directly behind them, and ask for forgiveness. When Yang turned in his seat and bowed three times, the 61-year-old Gao quietly began to weep.
Committee member Chris Smith (R-N.J.) asked Yang and Callahan whether Yahoo! would be willing to support his Global Online Freedom Act of 2007 (GOFA), H.R. 275, which was approved by the committee in October 2007.
Under GOFA, companies could be fined as much as $2 million and individuals as much as $100,000 for disclosing information that identifies an individual Internet user to officials from a designated “Internet-restricting country,” except for legitimate law enforcement purposes. In order to establish which countries are to be designated “Internet-restricting countries,” the bill would establish an “Office of Global Internet Freedom,” within the Department of State, which would monitor and report on the Internet censorship practices of countries around the world, as well as the filtering and blocking practices of American Internet companies like Yahoo!, Google, and MSN.
The two executives declined to support the specific legislation. Yang said that he “support[s] the goals of the bill” but that “I don’t think I understand the details of how to operationalize a bill for companies like ours.” Callahan added that although he had not seen the most recent version of GOFA and did not know enough about the bill’s details, Yahoo! “look[s] forward to engaging with the committee on the bill.”
GOFA was referred to the House Committee on the Judiciary on Jan. 16, 2008. Details and the bill’s full text can be found at http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.00275:. A full transcript of the Nov. 6, 2007 hearing can be found at http://www.foreignaffairs.house.gov/110/38820.pdf.
Rather than challenging American companies working in China, one nonprofit free speech advocacy group is trying to take on the government of China itself. The California First Amendment Coalition (CFAC) reported Jan. 4, 2008 that it initiated a proceeding to ask the Office of the U.S. Trade Representative to file a complaint with the World Trade Organization (WTO) over Chinese censorship of the Internet. China became a member of the WTO in 2001.
CFAC said its complaint is based on the theory “that China’s censorship of the Internet, the most pervasive and systematic system of censorship in the world, violates China’s obligations under treaties it signed” upon joining the WTO, namely the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS).
In order for the complaint to be successful, the Office of the U.S. Trade Representative must agree with CFAC’s position and agree to file a complaint with the WTO, and then the WTO must decide to rule against China. Although the matter is only in the beginning stages, CFAC reported that a ruling against China could result in all of China’s 1.2 billion citizens having unfettered access to the Internet for the first time ever.
CFAC reported that it is represented by the national law firm King & Spalding in Washington D.C. The initiative is supported by a consortium of organizations, including the UC Berkeley Graduate School of Journalism, the Center for Internet and Society at Stanford Law School, the National Freedom of Information Coalition, and the China Internet Project at UC Berkeley, among others. The CFAC press release is available at http://www.cfac.org/content/index.php/cfac-news/report/.
– Patrick File
Silha Fellow and Bulletin Editor