Friday, March 07, 2008

Yahoo Sued for Aiding China’s Repression

Yahoo Inc. is in trouble again for its forced cooperation with authorities in Communist China. On February 29 three Chinese citizens filed a lawsuit in federal court in Northern California charging they had to endure torture, imprisonment, and other suffering after Yahoo handed over emails and other Internet information to Chinese authorities.

One of the plaintiffs, Li Zhi, 37, a civil servant, is still in prison, with more than three years left on an eight-year sentence for “inciting subversion of the state authority.” He claims that he was tortured and imprisoned after Yahoo gave the government Internet information about his work for a banned political group, the China Democratic Party.

An earlier lawsuit, also filed against Yahoo for allegedly aiding China’s Internet police, ended in November when Yahoo settled with the plaintiffs out of court for an undisclosed amount of money.

Both that lawsuit and the current one were filed under the Alien Tort Claims Act, which enables foreign citizens to sue for gross violations of human rights committed abroad by U.S. entities.

In a section on “Internet Giants Work With the Dictatorships” in its 2007 Annual Report, Reporters Without Border says this about “the predators of free expression”:

“China keeps a tight grip on what is written and downloaded by users, and spends an enormous amount on Internet surveillance equipment and hires armies of informants and cyber-police. It also has the political weight to force the companies in the sector – such as Yahoo, Google, Microsoft, and Cisco Systems – to do what it wants them to, and all have agreed to censor their search-engines to filter out websites overcritical of the authorities.

“This makes the regime’s job very much easier because these firms are the main entry-points to the Internet. If a website is not listed by these search engines, material posted on them has about much chance of being found as a message in a bottle thrown into the sea.”

Google is trying to get out of its awkward contradictory position as an information service complicit in suppressing information. It is urging the U.S. government to “make censorship a central element of our bilateral and multilateral [trade] agendas” and to “treat censorship as a barrier to trade,” as its vice president for global communications, Elliott Schrage, said in his testimony to the House committee on international relations two years ago.

In June last year, after AP ran a story on Google’s quiet lobbying at various cabinet agencies, Andrew McLaughlin, Google’s director of public policy and government affairs, posted a long statement on “Censorship as trade barrier” on its public policy blog.

There, he wrote, for example: “Just as the U.S. government has, in decades past, utilized its trade negotiation powers to advance the interests of other U.S. industries, we would like to see the federal government take to heart the interest of the information industries and treat the elimination of unwarranted censorship as a central object of our bilateral and multilateral trade agencies in the years to come.”

In the first part of that paragraph, McLaughlin was referring to the mercantillistic advantage won by some industries (pharmaceuticals come to my mind), but in truth Google has a stronger case for its position than old-fashioned protectionism, and McLaughlin had that in mind in another part of his statement:

“To industries that depend upon free flows of information to deliver their services across borders, censorship is a fundamental barrier to trade. For Google, it is fair to say that censorship constitutes the single greatest trade barrier we currently face.”

Google has support for its position from a scholar on telecommunications and trade law, Timothy Wu, associate professor of law at Columbia University. In a paper on “The World Trade Law of Internet Filtering,” he emphasized the cross-border nature of internet services: “Much internet can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet.”

Moreover: "As a condition to accession to the WTO, [China] agreed to what has been called a 'radical' reform of its service practices. Yet at the same time China is among the world's more active filterers of Internet services....These two positions are in tension, and while WTO law leaves much room for exceptions, some of China's restrictions may not be easily justifiable under the GATS [General Agreement on Trade in Services]."

Yet those restrictions keep expanding without WTO intervention. Dr. Wu points out: "Internet services have leapt beyond what was contemplated in GATS or subsequent telecommunications agreements," he noted in his paper. "The universalization of a network that is a platform for any type of service requires new thinking about how barriers may come about, and how sectoral commitments are interpreted."

New thinking. That is desperately needed about many of the international trade and investment policies patched together since the end of World War II. Those policies should be updated to the globalized 21st century. Blocking modernization are the vested interests of industries protecting the privileged status they acquired under 20th century rules.

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