Yahoo! Inc. in China: Pirates and Emperors

By: Collin | Thursday, April 19, 2007 at 11:23 PM

Unrestricted global capitalism is facing a renewed threat, and it could be to the benefit of human rights worldwide. Before the explanation, perhaps a little background:

In 1980, a landmark case visited the United States Supreme Court, the political fallout of which has sparked the ire of huge U.S.-based corporations operating everywhere. Filartiga v. Pena-Irala called upon a centuries-old statute, one passed in 1789 and originally intended to prosecute pirates on the high seas. The Alien Tort Claims Act (ATCA, also known as Alien Tort Statute) allows foreign nationals, victims of violations of the "law of nations" (read: international law), to bring suit against their assailants in U.S. courts. The crime needn't be committed in the United States, and neither the plaintiff nor the defendant need be U.S. citizens. In Filartiga, the sister and father of a man who had been tortured and killed in Paraguay brought suit against his torturer and won.

This was the first time the ATCA had been used to prosecute human rights abuses as prohibited by international law. Later, this precedent was used against the California-based oil corporation Unocal, just before it became a subsidiary of Chevron, for its role in vicious human rights abuses in Burma/Myanmar, including rape, torture and forced labor. When Unocal settled the case in April 2005 (overshadowed by its merger), it was the first time an American corporation had been held legally accountable for its participation and complicity in human rights abuses, and it set a solid legal precedent.

Now, Chinese nationals are using the statute to sue Yahoo! Inc. for providing information to the government that lead to the arrest and subsequent beating and torture of political dissidents.

Technology companies like Yahoo!, Microsoft and Google have been chided for their individual and collective role in assisting China's overbearing government in monitoring and censoring the internet. But the companies suggest that they are opening up new avenues to information for citizens while complying with Chinese law.

It's a question that morally-minded businesspeople have struggled with since the advent of international trade. If a country's (or a government's) values don't fit with those of the company in question, would it be better for the company to: a) abstain from doing business in that country at all, tempting the country with its business once policies change? or b) bring business to that country and participate in an active process to "modernize" or "Westernize" or "develop" that country's goals and values? Choice a prevents the company from profiting from the country's markets, but choice b makes the company look like an accomplice in supporting an oppressive regime.

After the cost-benefit analysis, Yahoo! has chosen b, as have the other techno-giants, in deciding to bring more technology to China but agreeing to abide by its laws. And, as one Yahoo! spokesman put it:

“Companies doing business in China are forced to comply with Chinese law,” said Jim Cullinan, a Yahoo spokesman. When government officials present the company with a lawful request for information about a Yahoo user, he said, “Yahoo China will not know whether the demand for information is for a legitimate criminal investigation or is going to be used to prosecute political dissidents.” (link)

It doesn't sound like Yahoo! is making much progress in steering China in any positive direction. This is despite Cullinan's beliefs, as mentioned in the AP story cited above, that "the Internet can promote change and transform lives in that country," and that is why Yahoo! will continue to offer its services to consumers in China.

Well, it's certainly transformed the life of Wang Xiaoning, who is currently serving a 10-year prison sentence for "incitement to subvert state power" after using a Yahoo! group to email electronic journals that called for democratic reform and an end to single-party rule in China. And it transformed the life of his wife, Yu Ling. Both are named defendants in the case against Yahoo!, who turned over Mr. Wang's records to China in 2002.

The internet giant will hide behind the defense that it was simply complying with China's national law and cooperating with requests made legally by the government there (as Mr. Cullinan has made clear, there is something of a dont-ask-don't-tell policy when China asks Yahoo! to hand over a person's internet records). They'll also say that the human rights abuses--from censorship to torture--were perpetrated by state agents on the order of government officials, and that Yahoo! had nothing to do with them.

The bad news is that Yahoo! will probably get off with maybe a bruise and a finger-wagging. Much more than that seems unlikely, as the defendants have perhaps too much going against them. The good news, though, is that Alien Tort Statute is alive and well, not forgotten, and that it's being wielded as a mechanism of the people to fight the seemingly untouchable corporate juggernauts who consistently work toward profit at the expense of human rights and basic principles of dignity.

Even if Yahoo! wins or the case is dismissed, the fact that this has made it to court at all means the fight continues. While the Bush administration fights the ATCA and its application to corporations, it remains a tool of the formerly defenseless victims of global capitalism who have been relentlessly chewed up and unceremoniously spit out.

Pirates and CEOs beware. Alien Tort lives on.

Labels: China, Collin, corporations, human rights, law, technology, U.S. Supreme Court