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Shi Tao, Yahoo!, and the lessons for corporate social responsibility A working paper (Version 1.0 – December 30, 2007) by Rebecca MacKinnon Assistant Professor, Journalism & Media Studies Centre, University of Hong Kong e-mail: email@example.com weblog: http://rconversation.blogs.com Corrections and comments welcome. Future revisions will be posted at: http://rconversation.blogs.com/about.html This work is licensed under the Creative Commons Attribution-Noncommercial 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA. (In other words: you are welcome to distribute this document to your students, friends, colleagues, whoever, as long as you attribute me as the author and don’t publish it for profit.) ABSTRACT: In 2005, Chinese journalist Shi Tao was convicted and sentenced to ten years in prison for leaking state secrets abroad. Key evidence cited in Chinese court documents included information about Shi’s account supplied by Yahoo! to the Chinese State Security Bureau. Condemnation by human rights groups and investors, U.S. congressional hearings, a Hong Kong government investigation, and a U.S. lawsuit followed. This paper documents the core facts, events, issues and debates involved. The Shi Tao case highlights the complex challenges of corporate social responsibility for Internet and telecommunications companies: They are caught between demands of governments on one hand and rights of users on the other – not only in authoritarian countries such as China but in virtually all countries around the world. While there are no simple or quick solutions, Internet and telecoms companies seeking to establish trustworthy reputations across a global customer base cannot afford to ignore the human rights implications of their business practices. Users and investors have a right to demand that user rights be respected. If companies fail to respect user rights, the need to develop non-commercial, grassroots alternatives will become increasingly important if privacy and free expression are to be possible anywhere. Introduction In November 2007, Yahoo!'s top executives finally did what they could have done more than two years previously after Chinese journalist Shi Tao was sentenced to ten years in prison on charges of revealing state secrets. In a legal settlement, Yahoo pledged to provide an undisclosed amount of "financial, humanitarian and legal support" to the families of Shi Tao and Wang Xiaoning, another dissident jailed for ten years on the basis of evidence including e-mail data supplied by Yahoo! to Chinese authorities. At a Congressional hearing, Yahoo! founder and CEO Jerry Yang made a dramatic public apology to Shi Tao's mother, Gao Qinsheng, bowing solemnly to her three times as tears rolled down her cheeks. "I want to say we are committed to doing what we can to secure their freedom," Yang said, referring to2Shi and Wang. “And I want to personally apologize for what they are going through." The pledge of support to the jailed dissidents' families and Yang's public apology did not come easily to Yahoo!: the company first had to spend two years getting raked over the coals in the international media. Corporate acts of remorse and contrition came only after two Congressional hearings, a U.S. lawsuit by the families, a shareholder resolution, the featuring of Yahoo! on the covers of two major human rights reports, and widespread condemnation by free speech and human rights groups across the globe. Why didn't Yahoo! executives save themselves and their company a lot of grief by apologizing and pledging support for the victims' families, and vowing to work for the release of the jailed dissidents right from the start? More importantly, how might Yahoo! have avoided complicity in the conviction of Chinese political dissidents in the first place? The answers to these questions bring sobering lessons, not only for Yahoo! but for all Internet and telecoms companies when it comes to the human rights implications of their business decisions and practices. The Yahoo! case has also served as a wake-up call for investors, civil society, and users of telecommunications technology around the globe about the extent to which companies are used by governments to infringe upon their users' rights to privacy and freedom of expression. While Yahoo! is known to have been complicit in the conviction of four Chinese dissidents, this paper focuses primarily on the Shi Tao case for several reasons: It was the publication in September 2005 of the official court judgment against Shi Tao, citing e- mail account information provided by Yahoo!, which first brought Yahoo!'s complicity in 1 Associated Press, "Yahoo settles lawsuit by families of Chinese journalists," The International Herald Tribune, November 14, 2007, at: http://www.iht.com/articles/2007/11/14/business/yahoo.php (accessed December 5, 2007). 2 Corey Boles, Don Clark, and Pui-Wing Tam, "Yahoo's Lashing Highlights Risks of China Market," The Wall Street Journal, November 7, 2007, Page A1, online at: http://online.wsj.com/article/SB119436469294284018.html (Accessed December 5, 2007) Chinese dissident cases to global attention. While three other cases came to light in early 2006, Shi Tao's case remained the focus of international activism. It was also the focus of legal action and an official investigation in Hong Kong over the role played by Yahoo! (Hong Kong) Holdings – under whose name Yahoo!'s China operations was registered in 2004 when Shi Tao was arrested – over whether user account data might have been moved by Yahoo! employees between the separate jurisdictions of Hong Kong and Mainland China. The Shi Tao case highlights the complex challenges of corporate social responsibility for Internet and telecommunications companies. Companies are caught between demands of governments on one hand and rights of users on the other – not only in authoritarian countries such as China but in virtually all countries around the world. Compliance with local laws or regulations in this sector often conflicts with international law and global human rights norms. While there are no simple or quick solutions, the Shi Tao case demonstrates how simply being in “legal compliance” in all jurisdictions where a company operates is not sufficient for an Internet or telecoms company seeking to establish a trustworthy reputation across a global customer base. Companies that choose to ignore the broader human rights implications of their business practices are gambling with their long-term global reputations as trustworthy conduits or repositories of people’s personal communications and information. This paper is divided into six parts. Part 1 overviews the cases of Shi Tao and others; Part 2 discusses the problem that while Yahoo! may have been legally "off the hook" in the Shi Tao case, no amount of good lawyering could save it from condemnation in the international "court of public opinion"; Part 3 examines the extent to which Internet companies doing business in China can in fact make choices about what they will and won't do, and how Google and Microsoft's MSN network have acted differently from Yahoo!; Part 4 examines an effort in the U.S. Congress to legislate ethical behavior in the communications industry; Part 5 discusses privacy and freedom of expression as new areas for Corporate Social Responsibility (CSR); and finally, Part 6 examines the lessons of the Shi Tao case for citizens and users of telecoms and Internet services around the world. Section 1: The cases of Shi Tao and others Shi Tao worked as an editor and reporter for Dangdai Shangbao (Contemporary Business News), based in Changsha, Hunan at the time of his arrest. On April 20, 2004, Shi attended an internal editorial meeting to discuss a classified internal document containing a series of instructions about how the media should work to prevent social unrest in the run-up to the anniversary of the 1989 June 4 crackdown. The deputy general editor who convened the meeting did not distribute copies of the document, and instead summarized its contents to meeting participants. Shi Tao took notes during the meeting. Later that night he wrote up his notes summarizing the document and sent them from his office computer via his Yahoo! China e-mail account (huoyan- firstname.lastname@example.org) to the e-mail address email@example.com which belonged to New York-based editor for the overseas pro-democracy publication and website, Minzhu Luntan (Democracy Forum), requesting that the contents of his e-mail be published immediately under the name “198964.” 3 Two days later, on April 22 , the Beijing State Security Bureau issued a “Notice of Evidence Collection” to Yahoo! China, which was at the time a subsidiary of Yahoo! Holdings (Hong Kong), Ltd. The order requested “email account registration information for firstname.lastname@example.org, all login times, corresponding IP addresses, and relevant email content from February 22, 2004.” Beijing-based employees of Yahoo! 4 China complied with the request on the same day. Shi was detained by the Changsha City State Security bureau on November 23, 2004, and formally arrested on December 14 of that same year, charged with “leaking state 5 secrets.” On March 11, 2005 he was tried for two hours. The guilty verdict and ten-year prison sentence was issued on April 27. In his unsuccessful appeal, Shi Tao claimed he was not aware at the time that the document that he had written about in his e-mail was classified as “top state secret,” and disputed the validity of the manner in which the document been declared classified. 6 On September 6, 2005, a copy of the court verdict, obtained and translated by the Dui Hua Foundation, was published on the website of Reporters Without Borders. Among the evidence it listed: “Account holder information furnished by Yahoo Holdings (Hong 3 “Information supplied by Yahoo! helped journalist Shi Tao get 10 years in prison,” Reporters Without Borders, September 6, 2005 (including copy of verdict) at: http://www.rsf.org/article.php3?id_article=14884; Copy of appeal: http://peacehall.com/news/gb/china/2005/05/200505201033.shtml; “Abstract of the CCP Central Committee Document No. 11 (Provided by 198964)”, Minzhu Tongxun (Democracy Newsletter), 20 April 2004, at: http://www.asiademo.org/b5/news/2005/01/20050128.htm#art03 Translated by Roland Soong at: http://www.zonaeuropa.com/20050501_1.htm (all accessed December 7, 2007). 4 “Documents of the Chinese courts and state security bureaus regarding the cases of Shi Tao and Wang Xiaoning”, Boxun.com, 23 July 2007, at: http://news.boxun.com/news/gb/china/2007/07/200707231212.shtml (In Chinese) (accessed December 7, 2007); “Police document sheds additional light on Shi Tao Case”, The Dui Hua Foundation, 25 July 2007, at: http://www.duihua.org/2007/07/police- document-sheds-additional-light.html (accessed December 7, 2007). 5 "Shi Tao's Application for Appeal," China Rights Forum, No. 2, 2005, republished by Human Rights in China at: http://www.cpj.org/news/2005/China25aug05na.html (accessed December 10, 2007); "Imprisoned journalist Shi Tao's family files for review of appeal," Committee to Protect Journalists, August 25, 2005, at: 6ttp://www.cpj.org/news/2005/China25aug05na.html (accessed December 10, 2007). “Shi Tao’s Application for Appeal,” translation of original Chinese-language appeal by Human Rights In China, at: http://www.hrichina.org/public/highlight/hric/appeal- app.html (accessed December 7, 2007). Kong) Ltd., which confirms that for IP address 126.96.36.199 at 11:32:17 p.m. on April 20, 2004, the corresponding user information was as follows: user telephone number: 0731-4376362 located at the Contemporary Business News office in Hunan; address: 2F Building 88, Jianxiang New Village, Kaifu District, Changsha.” Other evidence listed in the court judment included: contents of the e-mail sent by Shi to email@example.com, the e-mail belonging to Minzhu Luntan editor Hong Zhesheng (who is identified in the court documents as an “overseas hostile element”); as well as copies of the same content as it appeared on overseas dissident websites; Shi Tao’s notebook from the meeting to discuss the official document as well as a7other notebook containing Hong Zhesheng’s e-mail; a check from Hong Zhesheng, etc. Media reports of about Yahoo!’s complicity in Shi Tao’s conviction, accompanied by wide-scale condemnation of Yahoo! by human rights groups, were quick to follow. Details about the nature of this criticism and Yahoo!’s response will be discussed in the next section. Other cases: In addition to Shi Tao, there are three other cases in which Yahoo! is known to have handed over information to Chinese authorities about people who used Yahoo China e-mail accounts to transmit political information: Wang Xiaoning, Li Zhi, and Jiang Lijun. All were tried and sentenced in 2003 – one year before Shi’s arrest. In all three cases, Chinese court documents cite Yahoo! Holdings (Hong Kong) as the source of information about the defendants’ Chinese Yahoo accounts. Yahoo’s role in these three cases did not come to light until the first half of 2006, after the media furor over Yahoo’s complicity in Shi Tao’s 2005 conviction had been underway for months. Wang Xiaoning: Yahoo!’s role in Wang’s case first came to light on April 27, 2006 when the U.S.-based group Human Rights in China obtained and published the original court judgment against Wang. Sentenced to 10 years in prison on September 12, 2003 for “inciting subversion,” Wang had been taken into custody by state security police exactly one year and eleven days previously. Evidence presented by the prosecution included account information and e-mail content provided by Yahoo! (Hong Kong) Holdings. Wang’s “crimes” included: editing an online journal called the “Free Forum for Political Reform” in which he is charged with attaching the Communist Party leadership and advocating a multi-party system; using a false name to disseminate political writings via Yahoo! email and Yahoo! Groups, and using email to communicate with an overseas dissident political party and to discuss the establishment of a new political party called the “Chinese Third Way Party.” 7 "Information supplied by Yahoo! helped journalist Shi Tao get 10 years in prison," Reporters Without Borders, September 6, 2005, at: http://www.rsf.org/article.php3?id_article=14884 (accessed December 10, 2007). 8 “Yahoo! Cited in Decision Sentencing Internet Dissident Wang Xiaoning to 10 Years,” Human Rights Watch website, April 27, 2006, at: http://hrichina.org/public/contents/press?revision%5fid=27803&item%5fid=27801 (accessed August 12, 2007) In July 2007 two notices from the Beijing State Security Bureau issued to Yahoo!’s Beijing office in April and August 2002 surfaced on some Chinese-language websites and were subsequently verified, published, and translated by the U.S.-based human rights dialogue organization, Dui Hua. Issued two years prior to the notices served to Yahoo! in the Shi Tao case, they are written according to the same formula, citing the nature of the case (“inciting subversion” in Wang’s case, “illegal provision of state secrets to foreign entities” in Shi’s case), and also stating that the items requested from specified e- mail accounts may be collected under Article 45 of the Criminal Procedure Law of the PRC. In Wang’s case, documents also verified, translated and published by Dui Hua 10 showed that Yahoo!’s Beijing office responded to the request on the very same day. In April 2007 Wang’s wife, Yu Ling, filed a lawsuit in the United States against Yahoo!. seeking reparations for the company’s role in Wang’s arrest and sentencing. Shi Tao’s mother later joined the lawsuit (see Section 2 for further details). The San Francisco Chronicle quoted Yu as saying: “If Yahoo did not give out this information, then the Chinese government would not be able to sentence him.” The reality appears more murky, however. The court ruling against Wang says that Yahoo! Holdings (Hong Kong) provided confirmation that the Yahoo! Group called "aaabbbccc" run by Wang was set up using the Yahoo China e-mail address firstname.lastname@example.org, and that certain documents were sent from that e-mail address. The sentencing document also cites documents found in a search of Wang’s home. What exactly led investigators to his home we do not know from the sentencing document. It does not specify whether investigators determined the connection between Wang and this e-mail account from searching Wang's computer, or confirmation obtained from Yahoo!, or some other way. The documents that surfaced in July 2007 and published by Dui Hua indicate that Yahoo! also provided the contents of e-mails 11nt by Wang, although the official sentencing document makes no mention of this. Li Zhi: Yahoo!’s role in Li Zhi’s case came to light on February 8, 2006 when Beijing- based writer Liu Xiaobo posted an article citing the defense statement by Li’s lawyer, 12 quoting extensively from the court sentencing document, which had been posted online. This English was then publicized widely in English by Reporters Without Borders, China 9 “More Evidence Emerges on Yahoo!’s Role in Chinese Internet Cases,” Dui Hua News, July 30, 2007; at: http://www.duihua.org/2007/07/more-evidence-emerges-on-yahoos- 10le-in.html (accessed August 13, 2007) Ibid. 11Ibid. 12Liu Xiaobo, “Yahu zaozai zhuzhou weilue,” Boxun Xinwen Wang, February 8, 2006, at: http://www.peacehall.com/news/gb/pubvp/2006/02/200602081708.shtml (accessed August 14, 2007); “Lizhi ‘dianfu guojia zhengquan’ an ershen bianhu ci,” Wu Luan Zhao Yan Attorneys-at-law website, August 31, 2005, at: http://www.wlzy.cn/News/news_detail.asp?id=61 (accessed August 14, 2007), Digital Times, and others. 13 Convicted on December 10, 2003 for subversion by the Dazhou Intermediate People’s Court in Sichuan Province, Li is now serving an 8-year prison sentence in Sichuan Province’s Chuandong Prison. A government employee from Sichuan’s Da county, Li was taken into custody by security police in August of that same year. Evidence used against Li included documents from Beijing SINA Information Technology Co. Ltd. And Yahoo! Holdings (Hong Kong), confirming Li to be the registered owner of the e-mail accounts used in the case. Li was alleged to have used these e-mail accounts to establish contact with an overseas representative of the outlawed China Democracy Party. He was also charged to have used a personal webpage and anonymous chat room to post articles advocating election of CDP members to people’s congresses and other government posts, in order to bring about a “peaceful evolution” and eventual seizure of power from the Communist Party. Li’s appeal of the verdict was rejected by the Sichuan Higher People’s Court in February 2004. According to Human Rights Watch Li’s lawyer claims that Yahoo!’s report to the police included e-mail content in addition to account information, as with Wang Xiaoning’s 14 case, although this fact was not mentioned in the court documents from his trial. Jiang Lijun: Yahoo’s role in Jiang’s case came to light on April 19, 2006 with the publication by Reporters W15hout Borders of the court verdict obtained and translated by the Dui Hua Foundation. Convicted of subversion by the Beijing No. 2 Intermediate People’s Court on November 28, 2003, Jiang was sentenced to four years in prison (with the prison time calculated from the beginning of his detention on November 6, 2002). He was released in November 2006 from Jinzhou Prison, Liaoning Province, where he had 16 been transferred after trial to serve out his sentence. A heating company employee in Tieling city, Liaoning Province, Jiang had been detained previously by police in 1988 and 1995 for “reactionary” writings. He was alleged to have joined forces with three young people in Beijing (Liu Di, Wu Yiran and Li Yibing) to advocate “Western-style democracy” and a multiparty system of government. He was also alleged to have raised the idea of forming a “Freedom and Democracy Party” and making a bomb threat during 13“Another cyberdissident imprisoned because of data provided by Yahoo,” Reporters Without Borders website, February 9, 2006, at: http://www.rsf.org/article.php3?id_article=16402 (accessed August 14, 2007); Xiao Qiang, “Yahoo helped sentence another cyber dissident to 8 years - Liu Xiaobo (Updated),” China Digital Times, February 8, 2006, at: http://chinadigitaltimes.net/2006/02/yahoo_helped_sentence_another_cyber_dissident_to 14_year_1.php (accessed August 14, 2007) Human Rights Watch, op. cit. 15“Yahoo ! implicated in third cyberdissident trial- US company’s collaboration with Chinese courts highlighted in Jiang Lijun case,” Reporters Without Borders website, April 19, 2006, at: http://www.rsf.org/article.php3?id_article=17180 (accessed August 16, 2007) “Cyber-dissident convicted on Yahoo! information is freed after four years,” Reporters Without Borders website, November 9, 2006, at: http://www.rsf.org/article.php3?id_article=8453 (accessed August 14, 2007) a meeting in Beijing of the National People’s Congress. According to the sentencing document obtained and translated by Dui Hua in 2006, evidence against Jiang included user information provi17d by Yahoo! Holdings (Hong Kong) for an account that he was jointly using with Li. According to Human Rights Watch, at least one member of the group has since speculated that Li may have been a police informant due to his disappearance after being released without trial along with Liu and Wu. While police information requests and Yahoo!’s response to them have not surfaced in Jiang’s case as they have in the cases of Shi and Wang described above, it is reasonable to assume that since Yahoo! provided contents of e-mails in Wang’s case, they are likely also to have done so in the other cases including Jiang’s. Section 2: Legal compliance vs. ethical behavior. When Yahoo!’s role in the Shi Tao case first came to light, the company’s response focused on the fact that Yahoo! employees in China had been obeying Chinese law, and had no choice but to do so in order for the company to remain in business in China. Speaking at a conference in 2006, Yahoo! co-founder Jerry Yang said that while he felt “horrible” about what had happened, “We have no way of preventing that beforehand... If you want to do business there you have to comply.” 19 This answer did not satisfy Yahoo!’s critics who argue that Yahoo! and other Internet companies have larger moral obligations. They point out that Chinese law contradicts international law as well as global covenants such as the International Declaration of Human Rights. However, no convincing arguments or pieces of evidence have yet to emerge to support the possibility that Yahoo! China employees could have refused to comply with the State Security Bureau order without risking serious consequences for themselves and for Yahoo!’s China operations. Furthermore, actions by Yahoo!’s China- based employees were consistent with the user “terms of service” which Shi Tao and all other Yahoo! e-mail users must agree to in order to create an account. At the time when Shi Tao signed up for an e-mail account on yahoo.com.cn, he clicked “agree” on terms of service in which the user agrees not to commit a list of actions, including “damaging public security, revealing state secrets, subverting state power, damaging national unity,” 17“Yahoo! implicated in third cyberdissident trial,” Reporters Without Borders website. 18Human Rights Watch report Appendix V: Details of Jiang Lijun’s case, at: http://www.hrw.org/reports/2006/china0806/12.htm#_Toc142395842 (accessed August 19, 2007) Elinor Mills, “Yahoo’s founder responds to criticism,” CNET News.com, March 9, 2006 at: http://news.zdnet.co.uk/internet/0,1000000097,39256655,00.htm (accessed December 7, 2007). etc. The same document, to which he technically agreed, acknowledged that his 20 information would be disclosed if required to do so by law. Mention of “Yahoo Holdings (Hong Kong)” in the Chinese court verdict raised concerns in Hong Kong that user information had been passed from Yahoo!’s operations in Hong Kong to the mainland, or that Hong Kong personnel were otherwise involved in handing over Shi Tao’s information to the mainland police. In 2006 Hong Kong legislator Albert Ho filed a complaint with the Hong Kong Privacy Commissioner, which launched an investigation into the matter. In March 2007, The Hong Kong Privacy Commissioner found Yahoo! (Hong Kong) Holdings had transferred user data from Yahoo!’s Hong Kong-based operations to authorities in Mainland China. Yahoo! (Hong Kong) Holdings was cited in the court verdict because at the time of the Beijing State Security Bureau request in 2004, Yahoo! China was wholly owned by Yahoo! (Hong Kong) Holdings and Yahoo! China’s business license was officially in the name of Yahoo! (Hong Kong) Holdings. Actual operations of Yahoo! China were conducted in mainland China by two mainland-China based entities: Yahoo! Beijing and the Peking University Founder Group. This arrangement continued until October 2005, ownership of Yahoo! China was transferred to the Chinese company, Alibaba, with the Sunnyvale-based Yahoo!, Inc. retaining one board seat. Thus the Privacy Commissioner determined that no Hong Kong law had been violated by Yahoo! China’s compliance with the Beijing State Security Bureau request. Upon consultation with experts in PRC law, the Hong Kong Privacy Commissioner also concluded that given the contents of mainland China’s State Security Law as well as the Regulation on Telecommunication of the PRC, employees of Yahoo! China would themselves be liable to “penal apprehension” (i.e., arrest) if they were to refuse to hand over user data in the face of a Beijing State Security Bureau request. 22 In July 2007, a copy of the Beijing State Security Bureau’s request for evidence, addressed to the Beijing Representat23e Office of Yahoo! (HK) Holdings Ltd. on April 22, 2004, surfaced on the Internet. Its appearance further reinforced the Hong Kong Privacy Commissioner’s conclusion that user data in Shi Tao’s case had not crossed jurisdictional borders. However the document also created a furor because the SSB’s 20 "Yahoo – fuwu tiaokuan", original Chinese-language terms of service, Copyright Yahoo! China 2004, available at: http://cn.yahoo.com/statics/docs/info/terms/index.html (accessed August 11, 2007) 21 "The Disclosure of Email Subscriber's Personal Data by Email Service Provider to PRC Law Enforcement Agency," Office of the Privacy Commissioner for Personal Data, Hong Kong, Report Number: R07-3619, March 14, 2007, at: http://www.pcpd.org.hk/english/publications/files/Yahoo_e.pdf (accessed December 7, 2207) 23Ibid, pp. 23-24. “Police Document Sheds Additional Light on Shi Tao Case,” Dui Hua News, July 25, 2007, at: http://www.duihua.org/2007/07/police-document-sheds-additional-light.html (accessed August 11, 2007). request clearly stated that the investigation related to “a case of suspecting illegal 24 provision of state secrets to foreign entities.” This contradicted the sworn Congressional testimony by Yahoo! Senior Counsel Michael Callahan in February 2006, in which he stated: The Shi Tao case raises profound and troubling questions about basic human rights. Nevertheless, it is important to lay out the facts. When Yahoo! China in Beijing was required to provide information about the user, who we later learned was Shi Tao, we had no information about the nature of the investigation. Indeed, we were unaware of the particular facts surrounding the case until the news story emerged. Law enforcement agencies in China, the United States, and elsewhere typically do not explain to information technology companies or other businesses why they demand specific information regarding certain individuals. In many cases, Yahoo! does not know the real identity of individuals for whom governments request information, as very often our users subscribe to our services without using their real names. [emphasis added] 25 Called back to Congress in November 2007 to explain why his original testimony had not squared with the full facts, Callahan insisted that the factual error was due to internal communication lapses within the company, rather than an intentional lie. According to Yahoo!’s explanation, a Hong Kong based lawyer working for Yahoo! at the time had not 26 deemed the information important enough to pass on a full translation to headquarters. Callahan insisted, however, that knowledge of this extra detail by executives at Yahoo! Inc. headquarters in Sunnyvale did not change the nature of Yahoo!’s options at the time; with or without knowing that the account in question related to a “state secrets” investigation, Yahoo! China was equally compelled to comply with a request from the 27 Beijing State Security Bureau which was legally binding according to Chinese law. 24 Ibid. 25“Testimony of Michael Callahan, Senior Vice President and General Counsel, Yahoo! Inc., Before the Subcommittees on Africa, Global Human Rights and International Operations, and Asia and the Pacific,” U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006, online at: http://www.nytimes.com/packages/pdf/business/YahooStatement.pdf (accessed 26cember 10, 2007). Corey Boles, “Yahoo Executive Apologizes Over Chinese Journalist Incident,” Dow Jones Newswires, November 1, 2007, at: http://www.easybourse.com/Website/dynamic/News.php?NewsID=331591&lang=fra&N 27sRubrique=2 (accessed December 7, 2007) Jim Puzzanghera, “Yahoo Taken to Task over China,” November 7, 2007, at: http://www.latimes.com/business/la-fi-yahoo7nov07,0,5198009.story?coll=la-home- center (accessed December 7, 2007) Soon after the November 2007 Congressional hearing at which Yahoo! CEO Jerry Yang made a dramatic apology to Shi Tao’s mother, Yahoo! also settled a lawsuit brought against it in U.S. court by Shi Tao’s mother and Yu Lin, the wife of Wang Xiaoning. The lawsuit, filed in April 2007, alleged: “Defendants unlawfully accessed and used, and voluntarily disclosed, the contents of the intercepted communications to enhance their business in China. This disclosure was not necessary for the operation of Defendants’ system or to protect Defendants’ rights or property.” In late August, Yahoo! filed a motion to dismiss the case with the U.S. District Court for Northern California. In addition to arguing that the case did not fall within the court’s jurisdiction, the Yahoo! motion repeated the argument that the company could not be held liable because it was bound to comply with a lawful request by Chinese authorities. Human Rights USA, the organization representing the family members’ lawsuit, retaliated by seeking discovery of relevant internal records and docume30s from Yahoo! related to Yahoo!’s handling of the Shi Tao and Wang Xiaoning cases. Settlement was reached between Yahoo! and the plaintiffs soon thereafter in mid-November. Given the Terms of Service to which Shi Tao technically agreed (regardless of whether he actually read or understood them), and given that Yahoo China employees handed over his information in response to a legally-binding, written police order, it is possible that if the families’ lawsuit had proceeded in U.S. court, Yahoo!’s lawyers may have prevailed in the end. But victory after a prolonged lawsuit would also likely have come with further reputational cost to the company: More documents related to Yahoo!’s China internal operations in 2003 and 2004 would likely have come into the public domain, lifting the lid on an operation which – based on what we now know about communication failures between the regional offices and Sunnyvale headquarters in 2004 – most likely would have brought additional embarrassment for the company at very least, and might also have had other unknown consequences. What’s more, a legal victory would have been hollow because it would not have absolved Yahoo! in the eyes of the human rights community, investors, and Yahoo! users around the world. 28 “Complaint for Tort Damage,” Wang Xiaoning, Yu Ling, et. al., v. Yahoo! Inc., Yahoo! Holdings (Hong Kong), Ltd., Alibaba.com, Inc. et. al., downloaded April 20, 2007 from: http://www.humanrightsusa.org/modules.php?op=modload&name=UpDownload&file=in dex (file no longer available as of December 7, 2007). 29 Sam Diaz, “Yahoo Asks Court In U.S. to Dismiss Suit Over China,” Washington Post, August 28, 2007, Page D03, at: http://www.washingtonpost.com/wp- dyn/content/article/2007/08/27/AR2007082701581.html (accessed December 7, 2007); Rebecca MacKinnon, “Full legal documents: Yahoo! asks court to dismiss jailed Chinese dissidents' lawsuit,” RConversation, August 29, 2007, at: http://rconversation.blogs.com/rconversation/2007/08/full-legal-docu.html (accessed December 7, 2007). 30“Yahoo! Case Study,” Human Rights USA website at: http://www.humanrightsusa.org/index.php?option=com_content&task=view&id=15&Ite mid=35 (accessed December 7, 2007). Upon obtaining and publishing the text of the court verdict against Shi Tao in September 2005, Reporters Without Borders wrote: “does the fact that this corporation operates under Chin31e law free it from all ethical considerations? How far will it go to please Beijing?” In 2006 Yahoo! (along with Google and Microsoft) was the subject of comprehensive reports by Human Rights Watch and Amnesty International, condemning the company's complicity with suppression of human rights and free speech in China. “The actions of these Internet companies are contrasted with their proclaimed values,” wrote Amnesty International, arguing that the “defences they use to justify their behaviour…do not stand up to scrutiny.” Speaking at a U.S. Congressional Hearing on February 15, 2006 (to be described in greater detail later in this chapter), U.S. Representative Tom Lantos delivered a scathing speech: When Yahoo was asked to explain its actions, Yahoo said that it must adhere to local laws in all countries where it operates. But my response to that is: if the secret police a half century ago asked where Anne Frank was hiding, would the correct answer be to hand over the information in order to comply with local laws? These are not victimless crimes. We must stand with the oppressed, not the oppressors. 32 Upon awarding the 2007 Golden Pen Awath to Shi Tao at the World Editors’ Forum in Capetown, South Africa on June 4 2007, World Editors Forum president George Brock said: Yahoo has argued that it must comply with the laws in the countries where it operates, and was therefore compelled to cooperate with state security authorities. And while those who do business around the globe must often deal with non-democratic governments, we believe that new media companies that provide more and more of the means for global communications, have a special responsibility. They have an obligation to ensure that the basic human rights of their users will be protected, a33 they must carefully guard against becoming accomplices in repression. 31 “Information supplied by Yahoo! helped journalist Shi Tao get 10 years in prison,” Reporters Without Borders, September 6, 2005, at: http://www.rsf.org/article.php3?id_article=14884 (accessed August 11, 2007) 32Testimony by U.S. Rep. Tom Lantos, “The Internet in China: A Tool for Freedom or Suppression?” Joint Hearing before the Subcommittee on Africa, Global Human Rights and International Operations and the Subcommittee on Asia and the Pacific of the Committee on International Relations, House of Representatives, 109 Congress, Second Session February 15, 2006; Transcript at: http://commdocs.house.gov/committees/intlrel/hfa26075.000/hfa26075_0f.htm (Accessed 33gust 11, 2007) “Golden Pen presentation speech by George Brock, President of the World Editors Forum,” World Association of Newspapers website, June 4, 2007, at: http://www.wan- press.org/article14358.html (accessed August 11, 2007) Nor has the condemnation been limited to foreigners. In an open letter to Yahoo! founder Jerry Yang, Beijing-based writer Liu Xiaobo wrote: “Profit makes you dull in morality. Did it ever occur to you that it is a shame for 34u to be considered a traitor to your customer Shi Tao? Profit makes you foolish.” Chinese blogger Zhao Jing (pseudonymously known as “Michael Anti”) wrote: “A company such as Yahoo! which gives up information is unforgivable. It would be for the good of the Chinese netizens if such a company could be shut down or get out of China forever.” 35 Discussion of what Yahoo! could have done differently – and should do differently in the future – tends to focus on three different possibilities: 1) Companies such as Yahoo! should comply with government information requests only in truly criminal cases, and decline to comply with cases concerning political dissent; 2) Yahoo! was ethically irresponsible to have established an e-mail service hosted on computer servers inside a jurisdiction such as the PRC, whose definition of “crime” is well known to include political activities and speech; and 3) While Yahoo! may have covered its legal obligations in its Terms of Service, it has a moral obligation in jurisdictions such as the PRC to make much more clear to users where their data is being stored and how it may be used. Shi Tao and others may have had a false sense of security when choosing to use an e-mail account of a foreign brand-name company, not realizing that their data was housed in computer servers located inside mainland Chinese jurisdiction. Option 1 effectively amounts to cessation of business in China, since this option advocates a stance of corporate “civil disobedience” which the PRC authorities have no track record of tolerating. While some in Hong Kong, the United States, and elsewhere have advocated this option, it is further unclear whether they have considered the implications of trying to remain in China while adhering to Option 1: making unaccountable employees of technology companies, who are generally not trained in law or human rights, arbiters of what36onstitutes a valid “crime” and what constitutes political dissent deserving of protection. This of course assumes that investigating authorities give company staff enough information to make this determination, which in many jurisdictions including the United States is generally not the case. Option 2 has been cited as the reason why companies such as Google and Microsoft have not offered e-mail 34Race to the Bottom: Corporate Complicity in Chinese Internet Censorship, Human Rights Watch report, August 10, 2006, Appendix VII: Liu Xiaobo’s letter to Yahoo!, at: http://www.hrw.org/reports/2006/china0806/14.htm#_Toc142395844 (accessed August 11, 2007) 35Zhao Jing, “The Freedom of Chinese Netizens Is Not Up To The Americans,” blog, original Chinese at http://anti.blog-city.com/1634657.htm; English translation by Roland Soong at EastSouthWestNorth, http://www.zonaeuropa.com/20060217_1.htm (accessed August 12, 2007). 36The Associated Press, “Informing case against Yahoo is dropped in Hong Kong,” International Herald Tribune, March 14, 2007, at: http://www.iht.com/articles/2007/03/14/business/yahoo.php (accessed August 12, 2007). services hosted in China. Option 3 – in some form – has become a key component of voluntary industry standards now in the process of being developed by Yahoo!, Google, Microsoft, and others. The issues surrounding Options 2 and 3 will be discussed in greater detail below. Section 3: Different companies, same country, different choices. Other companies, including Microsoft and Google, have come under fire for assisting the Chinese government in the suppression of free speech. However each company has drawn the line in different places. They have all made different choices about what kinds of services to provide or not provide to users in the People’s Republic of China. Choices have also been made about where – and in what jurisdiction – computer servers hosting user data are ultimately located. Yahoo! is the only foreign brand providing e-mail services with user data hosted on computer servers inside mainland China. In September 1999, four years after the Internet arrived in China, Yahoo! unveiled a simplified Chinese-language portal including search engine, e-mail, and instant messaging services. It also set up a Beijing office, in close partnership with Beijing Founder Electronics Co., Ltd, which according to the Yahoo! corporate press release would “play a strategic role in guiding and supporting Yahoo! 38 39 China in China.” (Yahoo Hong Kong was launched in January 1999. ) Thus Yahoo! became the first major U.S. Internet company to enter the China market. It also became the first major U.S. company to find itself faced with Chinese government requirements for censorship and data sharing with authorities. Yahoo! set the tone for the way in which foreign companies are expected to comply not only with demands for user e-mail information, but also how they should comply with censorship of public online content on search engines and web portals. China’s Internet controls are a multi-layered system combining official actions with private industry cooperation. Official actions take the form of “filtering” forbidden websites and keywords at the level of Internet Access Providers and also at the limited number of “gateways” through which the global Internet enters China’s domestic telecoms 37 Human Rights Watch, op. cit; Andrew McLaughlin, Senior Policy Counsel, “Google in China,” The Official Google Blog, January 27, 2006, at: http://googleblog.blogspot.com/2006/01/google-in-china.html (accessed August 12, 2007) 38 “Yahoo! Introduces Yahoo! China,” Yahoo! Media Relations Press Release, September 39, 1999, at: http://docs.yahoo.com/docs/pr/release389.html (accessed August 14, 2007) “Yahoo! Expands Position in Asia,” Yahoo! Press Room, January 28, 1999, at: http://yhoo.client.shareholder.com/press/ReleaseDetail.cfm?ReleaseID=173653 (accessed August 14, 2007) networks. Surveillance is conducted online and in Internet cafes by various public security bodies. It is argued, however, that China’s Internet controls would not be nearly as successful as they have been so far in preventing the rise of domestic political opposition movements if it were not for the strong cooperation and self-censorship by private Internet companies. 41 In China, all commercial or noncommercial Internet Content Providers (ICP’s) are required to register for and display a license in order to operate legally. They are held liable for all content appearing on their websites, no matter whether that content is created by the organization’s employees, or by any of the site’s visitors, or users of its content-creation and content-sharing services. The ICP’s obligations are manifested in the “Public Pledge on Self-discipline for the Chinese Internet Industry,” initiated by the quasi-official Internet Society of China (ISOC), the major professional association for the Chinese Internet industry. While the ISOC is called a “nongovernmental organization,” its “governing body” is the Ministry of Information Industry, the government ministry in charge of China’s national Internet infrastructure. Signed by hundreds of organizations including Chinese companies, universities, and government offices, the pledge commits signatories to “energetic efforts to carry forward the rich cultural tradition of the Chinese nation and the ethical norms of the socialist cultural civilization” by observing all state industry regulations. In particular, signatories vow to refrain “from producing, posting, or disseminating pernicious information that may jeopardize state security and disrupt social stability.” 43 Yahoo! signed the pledge in August 2002 and was met with the immediate criticism of human rights groups, who pointed out that Yahoo! was not required by Chinese law to sign the 40Eric Harwit and Duncan Clark, “Shaping the Internet in China: Evolution of Political Control Over Network Infrastructure and Content,” Asian Survey, 41:3, May-June 2001, pp. 337-408.; OpenNet Initiative, “Internet Filtering in China 2004-2005: A Country Study,” April 14, 2005 [online], http://www.opennetinitiative.net/studies/china/ (retrieved August 22, 2007); China Internet Network Information Center, “17th Statistical Survey Report on The Internet Development in China,” January 2006 [online], http://www.cnnic.net.cn/download/2006/17threport-en.pdf (accessed August 22, 2007); Steven Cherry, “The Net Effect,” IEEE Spectrum, June 2005 [online], http://www.spectrum.ieee.org/print/1219 (accessed August 22, 2007); Human Rights Watch, op cit.; 41 Rebecca MacKinnon, “Flatter world and thicker walls? Blogs, censorship and civic discourse in China,” In Drezner, D., and H. Farrell, eds., WILL THE REVOLUTION BE BLOGGED? (Special Issue), Public Choice, (Springer Netherlands), Published online at Springerlink August 9, 2007. 42 The Internet Society of china’s homepage is at http://www.isc.org.cn/English/ 43ccessed August 22, 2007) Internet Society of China, “Public Pledge of Self-Regulation and Professional Ethics for China Internet Industry,” July 19, 2002 [online], http://www.isc.org.cn/20020417/ca102762.htm (accessed August 22, 2007). 44 pledge. Yahoo! lawyers responded that “the restrictions on content contained45n the pledge impose no greater obligation than already exists in laws in China.” The display of politically objectionable content can result in reprimands to company management and employees from the Ministry of Information Industry (MII), the State Council Information Office, the Communist Party’s Propaganda Department, and/or various state security organs, accompanied by warnings that insufficient controls will result in revocation of the company’s license. In order to minimize reprimands and keep their licenses in good standing, companies operating search engines maintain lists of thousands of words, phrases and web addresses to be filtered out of search results so that links to politically objectionable websites do not even appear on the search engine’s results pages, even when those websites may be blocked at the backbone or Internet 46 Service Provider (ISP) level. As an early entrant into the Chinese search engine market, Yahoo!’s search engine filtering evolved along with the system. Tests conducted in 2006 by Human Rights Watch showed that Yahoo!’s Chinese search engine censored its search results to the same degree as the leading domestic search engine, Baidu, and much more thoroughly than Google.cn47nd somewhat more thoroughly than Microsoft’s Chinese- language search engine. In August 2005, Yahoo! announced it would purchase a 40 percent stake in the Chinese e-commerce firm Alibaba.com. Yahoo! merged its China-based subsidiaries into Alibaba, including the Yahoo! Chinese email service (cn.mail.yahoo.com) and the Chinese search engine at: cn.yahoo.com. Since then, Yahoo! has held only one of four board seats for Alibaba.com, and no longer held day-to-day operational control over Yahoo! China, 48 which had become a division of Alibaba.com. According to Yahoo! executives, as of 44“Yahoo! Risks abusing human rights in China,” Human Rights Watch news release, August 9, 2002, http://www.hrw.org/press/2002/08/yahoo080902.htm (accessed August 45, 2007) Jim Hu, “Yahoo yields to Chinese web laws,” CNet News.com. 46Human Rights Watch, op. cit.; Clive Thompson, “Google’s China Problem,” New York Times Magazine, April 23, 2006, http://www.nytimes.com/2006/04/23/magazine/23google.html?ex=1303444800en=97210 27e105631bfei=5088partner=rssnytemc=rss&pagewanted=all (accessed August 22, 2007) 47Human Rights Watch, op cit. 48 “Testimony of Michael Callahan, Senior Vice President and General Counsel, Yahoo! Inc., Before the Subcommittees on Africa, Global Human Rights and International Operations, and Asia and the Pacific,” U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006, and Yahoo! corporate press release, undated, http://yhoo.client.shareholder.com/press/ReleaseDetail.cfm?ReleaseID=187725 (accessed August 22, 2007). October 2005 Aliba49 has had full control over both operational and compliance policies of Yahoo! China. Statements by Alibaba’s CEO Jack Ma have shown that he had no intention of changing the policies of Yahoo! China when it comes to compliance with official investigations. In a November 2005 interview with the Financial Times, when asked about the Shi Tao case, he replied: “I would do the same thing… I tell my customers and my colleagues, that’s the right way to do business.” Three months after Yahoo! was chastised in Congress for its handling of the Shi Tao case, In a May 7, 2006 Ma gave an interview with the San Francisco Chronicle in which he alluded to a slight change in emphasis when he said: “The authorities must have a license or a document. Otherwise, the answer is no.51 In a letter to Human Rights Watch dated August 1, 2006, Yahoo! Deputy General Counsel Michael Samway insisted that Yahoo! has not relinquished all responsibility for Alibaba’s administration of Yahoo! China, and that Yahoo! Inc. “will continue to use our influence in these areas given our global beliefs a52ut the benefits of the Internet and our understanding of requirements under local laws.” Microsoft: Microsoft entered China in 1992 and has since then developed an extensive business and R&D network. However Microsoft’s online content division, the Microsoft Network known as MSN, did not launch a mainland China portal until May 2005. It did so with the help of a joint-venture partner, Shanghai Alliance Investment Ltd. (SAIL) - a venture fund supported by the Shanghai City Government and led by Jiang Mianheng, 53 son of former PRC president Jiang Zemin. In 2005 the Chinese MSN initially offered a simplified Chinese language portal catering to the interests of mainland Chinese users as well as a localized version of the blog 49“Yahoo Writer Jailed in China,” Red Herring, February 9, 2006, at: http://www.redherring.com/Article.aspx?a=15659&hed=Yahoo+Writer+Jailed+in+China 50ccessed August 22, 2007). Mure Dickie, “Yahoo backed on helping China trace writer,” FT.com. November 10, 2005 [online], http://news.ft.com/cms/s/7ed7a41e-515f-11da-ac3b-0000779e2340.html (accessed August 22, 2007). 51 “ALIBABA.COM On the Record: Jack Ma,” San Francisco Chronicle, May 7, 2006 [online], http://www.sfgate.com/cgi- bin/article.cgi?f=/chronicle/archive/2006/05/07/BUGAQIJ8221.DTL (accessed August 22, 2007). 52 Human Rights Watch, Appendix VIII: Letter from Human Rights Watch to Yahoo! and Yahoo!’s response, at: http://www.hrw.org/reports/2006/china0806/15.htm#_Toc142395845 (accessed August 22, 2007) 53 “Microsoft Prepares to Launch MSN China,” Microsoft news release, May 11, 2005, http://www.microsoft.com/presspass/press/2005/may05/05- 11MSNChinaLaunchPR.mspx (accessed August 22, 2007) hosting service MSN Spaces. The blog-hosting service came under immediate international criticism because it blocked users from entering certain politically sensitive keywords into the titles of their blogs. MSN Spaces came under even greater fire in January 2006 after it deleted the blog of the prominent Beijing-based blogger Zhao Jing, 54 aka “Michael Anti.” In response to criticism, MSN adjusted its policies to require that employees not censor any blogs without a written, legally-binding order from Chinese authorities, and that censored blogs would not be deleted but would rather be “filtered” from view by people trying to visit them from IP addresses located from within mainland 55 China. In 2006 MSN introduced a customized Chinese search engine for the mainland market which, like Yahoo! China’s search engine, actively de-listed politically sensitive websites. Unlike Yahoo!, however, MSN has opted not to host a localized version of its e-mail service, Hotmail, on computer servers inside China. It has done so even though keeping the account data for Hotmail’s Chinese users on servers outside the PRC has from time to time made it difficult for Chinese Hotmail users to access their e-mail. 56 According to Human Rights Watch and other sources, Microsoft executives have acknowledged that one of the reasons Microsoft opted not to offer Hotmail in China relates to concerns that Microsoft would find itself in the same position as Yahoo! did in the cases of Shi Tao and at least three others: having to choose between breaking Chinese 57 law or providing information about political dissidents to the Chinese police. Industry insiders have confirmed to this author that Microsoft has in the past refused Chinese government requests for Hotmail user data, on the grounds that the data is not under PRC legal jurisdiction. Google: Google first introduced a U.S.-hosted simplified Chinese version of its global search engine in 2000. 58 However it did not set up an office in mainland China until July of 2005 with the launch of its research and development center in Beijing. On January 54MacKinnon, “Flatter world and thicker walls?," op cit. 55Testimony of Jack Krumholtz, Associate General Counsel and Managing Director, Federal Government Affairs Microsoft Corporation, House of Representatives Committee on International Relations Joint Hearing of the Subcommittee on Africa, Global Human Rights and International Operations and the Subcommittee on Asia and the Pacific: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 5606 Goff Dyer and Mure Dickie, “Chinese Hotmail users suffer distruptions,” Financial Times, May 12, 2006, at: http://www.ft.com/cms/s/7d186064-e1e2-11da-bf4c- 0000779e2340.html (accessed August 22, 2007) 57 58Human Rights Watch, Section IV., op. cit. “Google Launches New Japanese, Chinese, and Korean Search Services,” Google corporate news release, September 12, 2000 http://www.google.com/press/pressrel/pressrelease34.html (accessed August 22, 2007) 59 “Google to Open Research and Development Center in China,” Google corporate news release, July 19, 2005, http://www.google.com/press/pressrel/rd_china.html (accessed August 22, 2007). 26, 2006, Google unveiled a censored Chinese-language search engine at Google.cn. The move was greeted with widespread criticism by human rights and free speech groups who accused Google of violating its own core philosophy, “don’t be evil.” Google executives insisted that the censored search engine was the best way to serve the Chinese market, because they claimed that the appearance of sensitive websites and keywords in search results was causing access difficulties for mainland users.60 Testifying on February 15, 2006 before the U.S. Congress, Google Vice President Eliot Schrage indicated that Google had drawn important lessons from the experiences of Yahoo! and Microsoft: “Google.cn today includes basic Google search services, together with a local business information and map service. Other products––such as Gmail and Blogger, our blog service––that involve personal and confidential information will be introduced only when we are comfortable that we can provide them in a way that protects 61 the privacy and security of users’ information.” Thus, different Internet companies can make – and have made – different choices. The two Internet giants that entered China after Yahoo! were fortunate to be able to learn from Yahoo!’s mistakes. By not offering e-mail services hosted inside mainland China they have avoided having to assist the regime in jailing dissidents in order to remain in compliance with Chinese law. While Google and Microsoft have come under fire in China for complying with government demands to censor search engine results and blogs (in Microsoft’s case), they have avoided being directly responsible for ruining the lives of specific human beings who have spoken critically of the Chinese regime. These choices indicate that engagement by Internet companies with China is not entirely an “either-or” proposition in which foreign companies have absolutely no control over their behavior if they are to conduct business in China at all. Choices can be made about how and at what level to engage. 60 Andrew McLaughlin, “Google In China,” Google Blog, January 27, 2006, http://googleblog.blogspot.com/2006/01/google-in-china.html (accessed August 22, 2007); Danny Sullivan, “Google Created EvilRank Scale To Decide On Chinese Censorship,” Search Engine Watch, January 30, 2006, http://blog.searchenginewatch.com/blog/060130-154414 (accessed August 22, 2007); Clive Thompson, “Google’s China Problem,” New York Times Magazine, April 23, 2006, http://www.nytimes.com/2006/04/23/magazine/23google.html?ex=1303444800en=97210 27e105631bfei=5088partner=rssnytemc=rss&pagewanted=all (accessed August 22, 2007) 61“Testimony of Google Inc. before the Subcommittee on Asia and the Pacific, and the Subcommittee on Africa, Global Human Rights, and International Operations” given by Eliot Schrage, vice president, Global Communications and Public Affairs, Google Inc., U.S. House of Representatives Committee on International Relations, Joint Hearing: “The Internet in China: A Tool for Freedom or Suppression?” February 15, 2006, online at: http://googleblog.blogspot.com/2006/02/testimony-internet-in-china.html (accessed August 22, 2007) Section 4: Can global information ethics be legislated? On February 16, 2006, a Congressional hearing was held in which Google, Microsoft, Yahoo! and Ci62o were publicly chastised for assisting Chinese censorship and/or surveillance. The next day, proposed legislation entitled the Global Online Freedom Act of 2006 (GOFA) was introduced by Congressmen Tom Lantos, a Democrat from California, and New Jersey Republican Christopher Smith. In its original form, the bill included provisions that would forbid the storage of user data on servers inside China, would make it illegal to sell equipment or services to law enforcement agencies in countries like China and would enable victims of Yahoo!'s police collaboration to sue Yahoo! in US court. The bill would require US Internet companies to hand over all lists of forbidden words provided to them by "any foreign official of an Internet-restricting country" (as defined by the US State Department) to a specially created US Office of Global Internet Freedom. It would also require these companies to report all content deleted or blocked at the request of such a government to the same government office. Free speech groups like the Electronic Frontier Foundation pointed out that this would place US Internet companies in the position of acting as informers to the US government about actions of a foreign government. It also would result in handing over Chinese user information to the US government. GOFA was then substantially amended by the House Foreign Affairs Committee in the wake of critical feedback. In July 2006 GOFA was endorsed by fourteen human rights organizations, including Human Rights Watch, Amnesty International, Reporters Without Borders, and the Committee to Protect Journalists.64 By the end of 2006, when the 109th Congress came to an end, there had been no further movement on this proposed piece of legislation. On January 5, 2007 Congressman Chris 62Declan McCullagh and Anne Broache, “Politicians lash out at tech firms over China,” CNet News.com, February 15, 2006, at: http://news.com.com/Politicians+lash+out+at+tech+firms+over+China/2100-1028_3- 6039834.html?tag=st.rn (accessed August 22, 2007) 63Declan McCullagh, “Proposed law targets tech-China cooperation,” CNet News.com, February 16, 2006, at: http://news.com.com/Proposed+law+targets+tech- China+cooperation/2100-1028_3-6040303.html (accessed August 22, 2007); For a copy of the original, un-amended text of the bill, see: http://rconversation.blogs.com/rconversation/ files/SMITNJ_094_XML.pdf; For a critique of the bill’s initial version written by this author, see: Rebecca MacKinnon, “America’s Online Censors,” February 24, 2006, at: http://www.thenation.com/doc/20060313/mackinnon (accessed August 22, 2007) ; For the amended version of the bill see: http://thomas.loc.gov/cgi- bin/bdquery/z?d109:h.r.04780: (accessed August 22, 2007) 64“Fourteen human rights organisations express support for a US draft law on free expression online (GOFA),” Reporters Without Borders website, July 18, 2006, at: http://www.rsf.org/article.php3?id_article=18304 (accessed August 22, 2007) Smith reintroduced the bill as the Global Online Freedom Act of 2007. As summarized in a press release issued by Smith’s office, the Act in its present form seeks to do the following: • Prohibits US companies from disclosing to foreign officials of an "Internet Restricting Country" information that personally identifies a particular user except for "legitimate foreign law enforcement purposes" [as defined by the Department of Justice]; • Creates a private right of action for individuals aggrieved by the disclosure of such personal identification to file suit in any US district court; • Prohibits US internet service providers from blocking online content of US government or US-government financed sites; • Authorizes $50 million for a new interagency office within the State Department charged with developing and implementing a global strategy to combat state-sponsored internet jamming by repressive countries; • Requires the new Office of Global Internet Freedom to monitor filtered terms; and to work with Internet companies and the non- profit sector to develop a voluntary code of minimum corporate standards related to Internet freedom. • Requires Internet companies to disclose to the new Office of Global Internet Freedom the terms they filter and the parameters they must meet in order to do business in Internet Restricting Countries; • Requires the President to submit to Congress an annual report designating as an "Internet Restricting Country" any nation that systematically and substantially restrict internet freedom; • Establishes civil penalties for businesses (up to $2 million) and individuals (up to $100,000) for violations of the new requirements; • Mandates a feasibility study, by the Department of Commerce, to determine what type of restrictions and safeguards should be imposed on the export of computer equipment which could be used in an Internet Restricting Country to restrict Internet freedom.6 65 For full text of the Global Online Freedom Act of 2007 see: http://thomas.loc.gov