Yahoo wants China torture case dismissed

Claiming that the case is a matter for the Chinese government to decide, Yahoo has petitioned a California court to dismiss a lawsuit brought by jailed Chinese dissidents

Yahoo wants a California court to dismiss a lawsuit brought against the company by jailed Chinese dissidents.

In a filing Monday, Yahoo told the court that the lawsuit, which seeks to hold Yahoo accountable for the imprisonment and torture of the plaintiffs, should be tossed out various reasons, among which being that the U.S. justice system is the wrong venue for the case.

"This is a lawsuit by citizens of China imprisoned for using the internet in China to express political views in violation of China law. It is a political case challenging the laws and actions of the Chinese government. It has no place in the American courts," the 51-page filing reads.

After stating that Yahoo "deeply sympathizes with the plaintiffs and their families and does not condone the suppression of their rights and liberty by their government," the company states that it and its Chinese subsidiaries must comply with the laws of China.

"Yahoo has no control over the sovereign government of the People's Republic of China, the laws it passes, and the manner in which it enforces its laws," reads the filing.

The lawsuit, filed in U.S. District Court for the California Northern District in April, alleges that Yahoo and Yahoo Hong Kong violated a series of U.S. and international laws by providing information to the Chinese government that led to the plaintiffs' arrest and torture.

Yahoo's arguments for dismissal are flawed, said attorney Morton Sklar, executive director of the Washington, D.C.-based World Organization for Human Rights USA, which represents the plaintiffs, including imprisoned journalists Shi Tao and Wang Xiaoning.

Yahoo is trying to blame China's government and arguing that Yahoo can't be held responsible for what has happened, Sklar said. "It was Yahoo that put the torture device in the hands of the government of China by giving the Internet identification information to the Chinese officials," Sklar said. "If they hadn't done that, there couldn't have been any torture abuses."

While it's true that any U.S. corporation doing business in a foreign country has to comply with that country's laws, the corporation also has to comply with U.S. laws and international legal standards, Sklar said. "That's what Yahoo overlooked," he said.

This case is but one of a series of human rights and free speech controversies in which U.S. Internet companies like Yahoo, Google, and Microsoft find themselves in regarding their operations in China.

In addition to human rights groups and press watchdog organizations, these Internet companies have been criticized by U.S. lawmakers, by some of their own investors and by individuals.

While Yahoo, Microsoft, Google and others in their position argue they need to comply with local laws, they also say that real progress on Internet issues of privacy, censorship, and human rights require government-to-government agreements supported by collaboration with industry players and human-rights organizations and leading to global standards of operation.

Asked for comment about its dismissal request, a Yahoo spokeswoman said that while Yahoo believes "deeply" in human rights and "strongly" supports freedom of expression and privacy worldwide, it believes the case has no legal merits.

"This is a political and diplomatic issue, not a legal one," she wrote. "The real issue here is the plaintiffs' outrage at the behavior and laws of the Chinese government. The U.S. court system is not the forum for addressing these political concerns."

In its filing Monday, Yahoo outlines several reasons for the dismissal of the case. It argues that litigating the case "risks violating international law principles of sovereignty, interfering with U.S. foreign policy, and jeopardizing the U.S. law enforcement interests."

Yahoo also argues that the plaintiffs have failed to state a claim under the Alien Tort Statute, the Torture Victim Protection Act, the Electronic Communications Privacy Act (ECPA), and the California laws on which they rely.

Moreover, the plaintiffs' claims contravene federal, California, and international law, which protect defendants from civil liability for communicating with law enforcement officials regarding investigations, according to Yahoo.

In their amended complaint, filed July 30, the plaintiffs allege Yahoo and Yahoo Hong Kong violated a series of U.S. and international laws, including torture, arbitrary arrest, prolonged detention, and forced labor as a violation of the international Alien Tort Statute and the Torture Victim Protection Act. They also allege violation of the California Business and Professional Code for unfair business practices and violation of the Electronic Communications Privacy Act for unlawful access to stored communications.

The plaintiffs seek, among other things, awards of a variety of damages; declaration that defendants violated international law; a requirement that defendants actively help to secure the release of detained plaintiffs; and an injunction barring the defendants from "any further disclosures of user information" to prevent future abuses.

The complaint states that Wang Xiaoning was arrested and unlawfully and arbitrarily detained and prosecuted for publishing and circulating through the Internet electronic journals and articles that supported democratic reform in China and for communicating with other democracy advocates.

"He is serving a ten-year sentence at Beijing Municipal No. 2 Prison, a forced labor prison for political prisoners, under severe conditions of prolonged confinement that are highly abusive in nature. He has served almost four years of his ten-year sentence, and has been imprisoned for almost five years," the complaint reads.

Meanwhile, Shi Tao was arrested and unlawfully and arbitrarily detained and prosecuted for e-mailing messages, notes, and journalistic dispatches describing government restrictions on journalists imposed in connection with the 15th anniversary of the Tiananmen Square crackdown on democracy advocates, according to the complaint.

"He currently is serving the third year of a 10-year sentence for 'divulging state secrets abroad' at Chishan Prison of Hunan Province, a high-security prison with a documented system of forced labor and torture, and has been in detention for almost four years," the complaint reads.

Their arrests and detainment of these two Chinese citizens were "inflicted upon" them as a result of Yahoo and Yahoo Hong Kong's actions to aid and abet Chinese government officials "in committing these major human rights abuses," the complaint reads.

The judge will hold a hearing on Yahoo's dismissal request on November 1st at 2 p.m. Pacific Time.

Copyright © 2007 IDG Communications, Inc.