Today on the radio, I heard that Yahoo! is being sued in connection with certain human rights violations against Chinese bloggers who had been arrested and tortured by the Chinese government. Apparently, the international human rights community and others are enraged with Yahoo!’s actions, but are Yahoo!’s actions or those of the Chinese government so different from what is happening elsewhere in Europe and the United States in their fight against terrorism or child pornography?
The facts of the case, as I understand them, are basically these: The Chinese government was suspicious of certain bloggers who had criticized the Chinese government calling for an end to one party rule and for an increase in democracy. The Chinese government asked Yahoo! for its records to ascertain the identity of the bloggers, and Yahoo! complied. Now, the bloggers are suing Yahoo! for human rights violations based on the Alien Torts Statute that gives jurisdiction to the US courts to hear tort cases where the plaintiff is a foreign national and the defendant’s actions have violated the “Law of Nations”.
In other words, the bloggers are claiming that by handing over their identities to the Chinese government, Yahoo! was a de facto state actor, and that any torture that they subsequently suffered can be thus be attributed to Yahoo! as a violation of their civl and human rights and can be judged by a US court.
Yahoo!’s defense is that it was merely complying with Chinese law; it must comply with all local laws in every jurisdiction where it operates. On the other hand, the human rights community, like Amnesty Internation, claims that Yahoo! should not have complied with Chinese law because China does not adhere to all of the international treaties on human and civil rights.
Nevertheless, were the same scenario to have occured elsewhere, would Amnesty International or other Yahoo! critics feel the same way? In Europe, the EU and its member states all have strict rules pertaining to lawful interception, requiring companies to keep an inventory on their users’ activities, and when the proper authorities believe a crime has been committed, the companies must turn over such user data to the authorities.
For example, an Internet Service Provider (like Telefónica, British Telecom, or even to a certain extent FON) are required by law to keep records of each users’ internet traffic and cyber whereabouts. If the government, say Spain or UK, believes that a user has been trafficking in child pornography or is a terrorist, then it may require the internet company to turn over the user’s data to further the investigation. The company must comply, and as a matter of fact, the company must be able to prove that it stores these records in order to be granted a permit to operate.
Even in the US with its war on terrorism, the government gathers and subpeonas user information. Once the US gets the evidence, who knows whether or not they are torturing the suspects? The US government has already admitted to its secret prisons throughout Eastern Europe, the Middle East, and Asia. Were Yahoo! to comply with a subpeona or a request from the US government for information regarding a suspected terrorist, would people be as outraged? Even now when almost any criticism of the US government’s war on terror can be considered a crime against its interests in Iraq, what is so different from what China has just done with the bloggers?
To date, very few of the cases over the past few years that have attempted to use the Aliens Tort Statute have been successful, especially in getting corporations held responsible for the human rights violations perpetrated by the governments with whom the corporations have dealt. If this case were successful, and I really doubt that it will be, it would open the door for very many interesting lawsuits that would not favor the US or European governments. For one, corporations would be put in a very uncomfortable position when deciding whether to comply with law interceptions legislation or to second guess a government on its potential for violating civil rights. Also, it could have the affect of allowing Iraqi citizens to sue all of the US military’s subcontractors in Iraq for human rights violations, torture, and other personal injury caused in the Iraqi war.
I think it would be rather ironic if the case did prevail and the actions of the Chinese government had such a revolutionary affect on human rights laws as they pertain to information technology; hence overturning all of the EU lawful interception legislation and even the US’s precious Patriot Act as civil rights violations. Aren’t we so much better when it comes to human rights than the Chinese?