Yahoo! and Lawful Interception

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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?

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10 Comments

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10 responses to “Yahoo! and Lawful Interception

  1. It isn’t just a matter of these particular violations by the Chinese government, their laundry list is long and insidious.

    I know quite a few Chinese nationals here in the U.S., and their government’s operating mode, is beyond anything anyone can claim about the U.S. or E.U. Well beyond.

    This isn’t a matter of simple fallible moralities, this is an example of the global outcry against China, and although unfair in a certain context, the behavior of that socialist dictatorship with regards to infrastructure, pollution, production liabilities, worker’s rights, children’s rights has drawn criticism from any “civilised” nation.

    I think too, the treatment of the Taiwanese is still fresh in the memories of many in politics, which only adds to the conflagration.

    Yahoo’s actions would be acceptable and unquestionable if China was in line with international regulations and laws in the same spheres as the E.U. and U.S., but in fact, China flips the international community the middle finger on virtually all such regulations and laws. Effectively, making Yahoo, and Google as well, look like the shameless corporate, money grubbing whores that they are … Yahoo couldn’t care less as long as China keeps dropping coin in their pocket.

    Money talks, bullshit walks.

  2. eric

    The problem is that for any internet company to operate in any market, they must adhere to the lawful interception laws. It is too much of a burden to expect companies to be able to make a pre-evaluation each time the government asks it information. Furthermore, the governments are not required to explain the exact purpose behind their investigations.

    Yes, China is not the prettiest boy on the block, but the only other option would be to effectively have a total embargo against China, ala Cuba, and not allow any foreign companies operate their.

    The problem with China is that we tend to forgive them everything because of the size of their market. Thus they get away with everything.

  3. The problem is that for any internet company to operate in any market, they must adhere to the lawful interception laws. It is too much of a burden to expect companies to be able to make a pre-evaluation each time the government asks it information. Furthermore, the governments are not required to explain the exact purpose behind their investigations.

    Except that your assertion is fallible. An entity such as Yahoo has in its employ a large contingent of attorneys, or has paid to retain a large law firm. In either case, they have individuals who would know how to forestall government action, and last I checked, there isn’t an American who can’t find a media outlet to listen to outrage at unlawful government action, especially under Bushco’s sodomising policies.

    They refuse to stand against information interception laws, as a matter of what is best for their blackline. I can’t speak for the E.U., but any U.S. company is still afforded Constitutional protections against any unlawful instance of government intervention. Our government should not have the “liberty” of deciding whether or not to disclose on the nature of inquiry, that in and of itself is unconstitutional.

    The problem with China is that we tend to forgive them everything because of the size of their market. Thus they get away with everything.

    Aye, money talks … Welcome to the simulated reality of human existence.

    Jean Baudrillard; “Simulacra and Simulation”, you should get to know it.

  4. eric

    Actually, you are not entirely accurate. When the government asks for information from a company pertaining to third party information, the company has two options: it can consent to the search and (ii) it can wait for the government’s search warrant or subpeona. A search warrant only has to be as specific as it needs to be. It can be limited to the area it is searching, but not to the underlying charges. Remember that in the war on terror, the US government has gone so far as denying the defense the evidence and sources of the evidence that it has against the defendant.

    That was the big joke in the Padilla case as I understand it. The government spent four years trying to prosecute the guy but ended up not being able to get the evidence admitted because they wanted to keep it secret (besides some of it was procured through blatantly unconstitutional means). Or take for example the prisoners in Guantanamo, no one knows exactly who they, where they were originally detained before being taken to Guantanamo, what evidence is against them, and they have not been afforded lawyers. What difference is there here between the US government and China? For all we know, the US government could have received information on these prisoners through the Patriot Act’s liberties, through wire taps, or from subpeoning your telephone records.

    Do you think that the government tells the phone company when they want to see a list of a suspect’s recent phone calls why they want to do so? Or when the police are investigating a suspect, they check the suspect’s credit card activity, visits to gas pumps to find their most recent location, and no, they do not tell the companies who give them the information anything about the crime in question because they don’t want to “compromise the investigation.” It’s the great thing about technology, we are always leaving a little electronic trail behind us, and guess what, the government is looking.

  5. I won’t bother arguing with you on the finer points of legislative morality or laws, your hand is far better than mine.

    On the other side, this “they the government” and “we the public” mentality, (which I’m not criticising you for, it is an indoctrinated habituation which I understand), is part and parcel of the problem.

    That reasonable doubt about the legitimacy of activity leads to subpoena is under no contention. That the “right” of the government to take “liberty” with individual’s information as a foregone conclusion, is a direct trampling of the authority of the Constitution.

    We should, at some point, remind the government, that this is our country, and they are there to serve us, or face certain penalties, (I find execution with malice and prejudice preferable).

    The Patriot Act is nothing short of subjugating or supplanting Constitutional rights/authority, and should be removed. It is also part of the status quo historical behavior of any Empire engaged in strategies and tactics of imperialism. SSDD.

    Individuals should also learn that there are certain softwares that remove said trails, leaving only binary phantoms. There are five I know of just for Windows Recycle Bin … LMAO.

  6. ReWrite formerly known asTheCommentKiller

    I agree w/ James’ last three paragraphs.

    Eric,

    How about how AT&T gives the NSA access to all of its information and even has allowed the NSA to set up an office which has access to live feeds right at AT&T.

    http://www.eff.org/news/archives/2006_04.php
    NSA still has their office up and running at AT&T.

  7. Mmmmmm, big brother, out for another school day, bullying the dumb kids in the school yard, taking their lunch money and making them do his homework.

    The part that really pushes the mentality to borderline rage is that these corporations who willing submit to this sort of dictatorial interference, are just like the low level street whore who’ll do it all for a nice, shiny nickel.

    Funny though, at the end of the Niccolo wins another one; those who prefer gold to strength, lose not only their gold, but the conviction of others to come to their defense.

    It’s only a matter of time.

  8. ReWrite formerly known asTheCommentKiller

    Nice.

    That is what Marx said too. Kind of a weird thing about Marx, he wrote that society shouldn’t force communism on history, but that history would naturally allow for communism. Unfortunately, society forced a false version of communism on history.

  9. The one glaring problem with communism that was never addressed by Marx or any of his contemporaries or proponents:

    Communism stands against the prime directive of all genetic programming; “I, for myself”.

    That is why it is interesting and enjoyable in theory, (quasi-utopian), but in application, it will remain an abysmal failure. It will always fall into tyranny.

  10. TheCommentKiller

    Marx (like Carmelo Anthony) would say: “We shall see.”

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