decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
The Amended Complaint in the Yahoo! China Case
Tuesday, June 12 2007 @ 10:46 AM EDT

I thought you might like to read the Amended Complaint [PDF] just filed against Yahoo! and its partners by the mother of a reporter, Shi Tao, in China sentenced to 10 years in jail for reporting on media restrictions there, ironically enough. He was convicted of leaking state secrets. Actually, he has been added as an additional plaintiff to a lawsuit filed earlier by the World Organization for Human Rights USA.

I found it interesting because it seeks to tip the equation, legally. Yahoo! and others have said they have no choice but to obey Chinese law and turn over information about customers to authorities. But the Amended Complaint in the case Wang Xiaoning, Yu Ling, Shi Tao et al v. Yahoo Inc., Yahoo Holdings, and Alibaba.com charges Yahoo! with violating US, California and international law. Now which law does Yahoo! have to obey? That will be the question.

The Amended Complaint for Tort Damages reads in part like this:

1. Plaintiffs have been subjected to grave violations of some of the most universally recognized standards of international law, including prohibitions against torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor, for exercising their right of freedom of speech, association, and assembly, at the hands of Defendants through Chinese officials acting under color of law in the People's Republic of China...

2. To commit these violations of specific, universal, and obligatory standards of international law, Defendants willingly provided Chinese officials with access to private e-mail records, copies of email messages, e-mail addresses, under ID numbers, and other identifying information about the Plaintiffs and the nature and content of their use of electronic communications. This information, available only to the Defendants, was voluntarily provided to Chinese officials by Defendants Yahoo! Inc., its agents, wholly-owned subsidiaries Yahoo! HK and Yahoo! China, and its strategic partner Alibaba.com, and served as the basis for the acts of persecution and torture that followed as a direct result of the Defendant's activities. By providing this information to the PRC, Defendants knowingly and willfully aided and abetted in the commission of torture and other major abuses violating international law that caused Plaintiffs' severe physical and mental suffering.

3. Plaintiffs' claims are actionable under the Alien Tort Statute (ATS), 28 U.S.C. 1350, and the Torture Victim Protection Act (TVPA), 28 U.S.C. 1350, because their injuries resulted from violations of specific, universal, and obligatory standards of international law as embodied in a number of treaty obligations binding on the United States and implemented domestically here in the United States by a number of statutes including the TVPA.

4. Defendants' conduct also violates California state laws, including prohibitions against battery, false imprisonment, assault, intentional infliction of emotional distress, negligence, negligent supervision, and the California Business & Professions Code 17200.

5. Defendants' conduct also breaches United States law under the Electronic Communications Privacy Act by exceeding their authorization to access and control highly private and potentially damaging information concerning Plaintiffs' electronic communication, in violation of 18 U.S.C. 2701, by unlawfully and knowingly divulging Plaintiffs' electronic communications contents and user information, in violation of 18 U.S.C. 2702, and by intentionally acquiring and/or intercepting the contents of electronic communications sent by and/or received by Plaintiffs through their use of computers and other electronic devices which were part of, and utilized in, Defendants' electronic communications systems, in violation of 18 U.S.C. 2511.

6. Plaintiffs seek general, compensatory, and punitive damages for their injuries, as well as declaratory and injunctive relief to hold Defendants accountable for their unlawful actions, to secure their assistance in obtaining the Plaintiffs' release from prison, and to prevent them from similarly harming others in the future.

The full list of statutes and treaties allegedly violated is on page 18 of the PDF. The document goes on to allege that Yahoo! in 2002 signed "an official, voluntary agreement that had the effect of directly involving Yahoo! in the censoring and monitoring of on-line content and communication by its Chinese users" by which pledge, Yahoo! agreed not only to monitor but to report to authorities any offending communications that could "jeopardize state security" or "disrupt social stability". Shi Tao, the complaint continues, sent information by an anonymous Yahoo! email to Democracy Forum, and Yahoo! provided information that tied the email to him. The court sentencing him referenced that specific information as evidence of his guilt.

The Prayer for Relief section begins on page 30, and it includes besides compensatory and punitive damages, a request for a determination "that the actions of the Defendants constituted violations of international law, specifically, that such violations included prohibited acts of torture, cruel, inhuman or degrading treatment, and arbitrary arrest and prolonged detention for the peaceful and exchange of ideas, views, and political beliefs in violation of the Convention Against Torture, numerous other international treaty obligations binding on the United States, and domestic laws and regulations implementing such standards, including the Torture Victim Protection Act, and other enumerated causes of action in this Complaint," as well an an injunction preventing Yahoo! from "similar actions to be taken in the future".


  


The Amended Complaint in the Yahoo! China Case | 73 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here
Authored by: ilde on Tuesday, June 12 2007 @ 11:05 AM EDT
Please make links clickable, if possible. Thanks

[ Reply to This | # ]

Corrections Here
Authored by: jplatt39 on Tuesday, June 12 2007 @ 11:22 AM EDT
Please put your correction in the Title line.

[ Reply to This | # ]

  • Corrections Here - Authored by: Anonymous on Tuesday, June 12 2007 @ 11:56 AM EDT
The Amended Complaint in the Yahoo! China Case
Authored by: Groklaw Lurker on Tuesday, June 12 2007 @ 11:33 AM EDT
Hmmm... Accountability at last.



---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

yahoo!
Authored by: skuggi on Tuesday, June 12 2007 @ 11:39 AM EDT
They ofcourse should obey to the law of the country where the law was broken and
the act was done and they are doing the business in
otherwise they could just pick the law they like from the country they like,
isn't it?
It seems so obvious.

---
-Skuggi.

[ Reply to This | # ]

Wider implications?
Authored by: Anonymous on Tuesday, June 12 2007 @ 11:43 AM EDT
If Yahoo were to lose this, would that mean that all these operators (Yahoo,
Microsoft, Google etc) would have to pull out of China until the law was
changed?

[ Reply to This | # ]

Makes me nervous
Authored by: Anonymous on Tuesday, June 12 2007 @ 11:57 AM EDT
Of course it's good to see someone held accountable for the way this stuff has been handled.

But the general principle of applying US law to actions undertaken in the rest of the world makes me nervous. Even if I ignore my feelings about the current US administration and just stick to topics that Groklaw readers are likely to be familiar with, I have no particular desire to see companies getting in trouble under the DMCA for selling region-free DVD players in other countries. Or violating US software patents while operating in Europe.

The idea of using US law to hold companies to doing what's "right" is a tempting one. But how do you prevent it setting a precedent for cases when the US law is wrong?

[ Reply to This | # ]

It would seem!
Authored by: Anonymous on Tuesday, June 12 2007 @ 12:40 PM EDT
It would seen a multinational corporation would be bound by international law
when operating outside their country of origin.

[ Reply to This | # ]

"Obey the law" or "voluntary"
Authored by: crs17 on Tuesday, June 12 2007 @ 01:15 PM EDT
Yahoo seems to say that Chinese law forced it to do what it did. But the
complaint says that Yahoo entered into a "voluntary agreement" causing
the censorship. The complaint then hedges this term by noting that "...the
Public Pledge is described as being voluntary, not required by government
regulation, but pressures to sign the Pledge and to abide by its requirements as
a prerequisite for doing business in China are considerable."

Which was it? If it was a voluntary commitment then Yahoo can't use the
argument that the Chinese law forced them to do it. If it wasn't voluntary,
then the case is more nuanced - they can try to plead ignorance, we tried...,
etc. But if it was voluntary, Yahoo has a terrible position to defend.

[ Reply to This | # ]

not only a moral issue?
Authored by: Humphry on Wednesday, June 13 2007 @ 08:48 AM EDT

MUI: international trade rules acknowledge that a product / service created more
cheaply in another country by taking advantage of a lower standard of human
rights can "legally" (meaning: the WTO won't complain) have tarriffs
attached to compensate. If it can be shown that Yahoo! gain an unfair
competitive advantage by, for example, lowering their domestic cost of doing
business by speading those costs across the Chinese operation, then competitors
have a legitimate complaint and can ask for Yahoo!'s service to be incur extra
duty

[ Reply to This | # ]

It's about time ...
Authored by: Anonymous on Wednesday, June 13 2007 @ 02:26 PM EDT

It's about time someone went after these conscienceless companies who constantly choose to put shareholder's returns before ethics. The "we had no choice" cry is just as bogus now as it has been in infamous defenses against war crimes in the past. Will any luck some executives will be strung up for this. But I'm not holding my breath.

[ Reply to This | # ]

The Amended Complaint in the Yahoo! China Case
Authored by: Anonymous on Thursday, June 14 2007 @ 08:03 PM EDT
Yahoo didn't commit torture. Handing over identity information to a legal
authority is not immoral. Torture is also against Chinese law so there is no
basis to believe that Yahoo should anticipate torture. Indeed Yahoo is the
conveniently wrong target.

If, OTOH, you want to argue that it is immoral for the likes of Yahoo and Google
to operate in China at all, you may have a very good point. Once they decide to
operate there they have no choice but to follow local laws.

[ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )