Yahoo’s defense: It obeyed China law
Yahoo Inc. on Monday asked a federal judge to dismiss a lawsuit brought against the Internet company by civil rights advocates, arguing that it had become unfairly ensnared in a political debate over free speech in China.
The Sunnyvale, Calif.-based company is fighting efforts to hold it accountable for the imprisonment and alleged torture of two Chinese citizens after it disclosed their identities to government officials. Yahoo says its Chinese subsidiaries did so to comply with the Chinese government’s rules.
Yahoo’s predicament illustrates the difficulty many Internet companies face in expanding to China. Essentially, they are information brokers in a country that tightly limits the spread of information.
“China is going to go from being a low-cost producer to being a demand engine for the global economy,” said Geoffrey Garrett, president of the Pacific Council on International Policy in Los Angeles. “American firms are finding that to sell in China, you need to be in China. . . . The Chinese government still controls the economy, [so] you have to play by the government’s rules.”
In a 40-page defense filed in Oakland on Monday, Yahoo argued that American courts were not the place to air political grievances against the Chinese government.
“This is a political and diplomatic issue, not a legal one,” Yahoo spokeswoman Kelley Benander said. “The real issue here is the plaintiffs’ outrage at the behavior and laws of the Chinese government. The U.S. court system is not the forum for addressing these political concerns.”
The World Organization for Human Rights USA filed the lawsuit in April on behalf of Wang Xiaoning, who was apprehended in 2002, and his wife, Yu Ling. Wang is serving a 10-year prison sentence, the group said, for advocating democratic reform in articles circulated on the Internet. It later added journalist Shi Tao, who is serving a 10-year sentence after being detained in 2004. The suit said he had detailed government restrictions imposed on journalists in connection with the 15-year anniversary of the Tiananmen Square crackdown.
The suit alleges that these people -- and others who have yet to be identified -- were tortured or subjected to inhumane treatment at the hands of Chinese authorities because of information that Yahoo Hong Kong and Yahoo China provided to the government. In 2005, a Chinese company, Alibaba.com, acquired most of Yahoo China. Yahoo retains a minority stake.
Yahoo didn’t dispute turning over information in response to Chinese government requests but contended that there was no evidence of a connection between that information and the ensuing arrest, prosecution and conviction of political prisoners.
In its court filings, Yahoo says it “deeply sympathizes” with the plaintiffs and their families and does not condone the suppression of their liberties. But it also argues that the company has no control over Chinese laws or their enforcement.
The filing outlines a series of legal reasons the case should be thrown out, which boil down to a central claim: U.S. courts can’t be called upon to second-guess rules created by a sovereign nation.
Although it’s clear that American corporations are obliged to follow foreign laws, they also must abide by U.S. and international law, said Morton H. Sklar, executive director of the Washington-based World Organization for Human Rights.
“Congress recognized this problem when they passed the Torture Victim Protection Act,” Sklar said. “They said explicitly, victims of torture should have access to U.S. courts to remedy the abuses they suffered. Where torture has taken place, there’s no question the U.S. has jurisdiction.”
Baizhu Chen, a professor at the Marshall School of Business at USC, says Yahoo and other media organizations in China are required by law to turn over information pertaining to “state secrets.”
“The problem here is that ‘the state secret’ is not very well defined,” he said.
Jonathan Zittrain, professor of Internet governance and regulation at Oxford University, says companies have to walk a fine line when they operate under governments that do not wholly embrace the rule of law.
“If the government lodges a generic request for identifying data, it’s awfully hard for the company to say, ‘Why do you want this?’ and then decide whether to answer,” Zittrain said. “But this doesn’t mean there aren’t things companies can do.”
For example, Zittrain says Yahoo could store the relevant data in a country that forbids its release under circumstances such as these -- or it could tell its users very clearly what data are collected and empower them to expunge it.
None of these approaches is a guarantee against abuse, he says, but they show how companies can minimize the risk that their activities will be used to support undesirable ends.
In a separate filing, Yahoo sought protection under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, which protects free speech rights.
“It is extraordinarily ironic that they would seek to invoke a free speech protection as the basis for getting rid of this case when this case is based on a violation of free speech rights of Yahoo’s own Internet users,” Sklar said.
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