May 8, 2009 -- An ugly chapter in internet giant Yahoo!'s history was revisited this week with the introduction of new legislation that would prevent a repeat botch-up the company made that landed Chinese journalists in prison.
The bill would prevent companies like Yahoo!, Google, and Microsoft from helping such governments find, convict and torture citizens for engaging in democracy promotion and human rights advocacy on the internet.
"U.S. businesses should have no role in aiding and abetting oppression around the world," said Rep. Christopher Smith, (R-NJ), a long time human rights activist in Congress, who authored the New Global Online Freedom Act (GOFA).
Smith's words are weighted with memories of journalists jailed in China with the aid of Yahoo!. The company settled a lawsuit from two Chinese journalists in 2007 who went to jail after the company turned over details of their online activities to Chinese authorities.
The settlement came one week after a Congressional hearing scrutinized Yahoo!'s role in the jailing of former financial writer Shi Tao, who was jailed for providing state secrets to foreigners. His conviction stemmed from an e-mail he sent containing his notes on a government circular that spelled out restrictions on the media.
In May 2007, Shi Tao joined journalist Wang Xiaoning in suing Yahoo! and its subsidiaries, accusing the company of "aiding and abetting" their imprisonment - and their torture. Both journalists were serving ten year sentences in prison for using the web to promote democracy, and both were sentenced after Yahoo! disclosed their other online data to the Chinese government.
"After meeting with the families, it was clear to me what we had to do to make this right for them, for Yahoo!, and for the future," former Yahoo! CEO Jerry Yang said at the time.
Smith said this week that it is "unconscionable that American businesses, founded in the world's leading democracy, would even consider enabling repressive governments that seek to stifle basic freedoms."
Chinese Criminal Court Says Yahoo! Handed Over Info to Chinese Government
The bill would require U.S. IT companies doing business in repressive countries to keep records on and notify the U.S. Attorney General of demands for personal information about Internet users.
The legislation also gives the Attorney General the authority to order IT companies not to comply if there is a reasonable likelihood that the demand is made for tracking down political or religious dissidents.
Chinese criminal courts identified Yahoo! as having handed over information requested by the Chinese government which resulted in prison sentences for four Chinese "cyber-dissidents".
Morton Sklar, lead counsel for the dissidents said he believes there are many more whose names did not show up in the court documents.
"We estimate there were hundreds if not thousands of internet users who were similarly affected by Yahoo! disclosures," said Sklar, who is also the Executive Director Emeritus of the World Organization for Human Rights USA.
In November 2007 hearings, Congressional leaders asked Yahoo! to identify all the names of those that they had disclosed that resulted in arrests and also asked Yahoo! to indicate whether the disclosure policy was still being followed and Yahoo! never responded to those requests though they said they would, according to Sklar.
Yahoo! said that a reliable estimate of the number and nature of Chinese law enforcement demands is not attainable because the underlying law enforcement demands are not within Yahoo! Inc.'s control. Yahoo! transferred its mainland China operations to Alibaba.com in 2005, and owns a minority stake in that China-based company.
"While Yahoo! Inc. previously ascertained some limited information about Chinese law enforcement demands, we have been unable to verify this information without the necessary documents or information from Alibaba. Our formal and informal requests for information regarding these demands have been denied by Alibaba," the company said.
Reporters Without Borders, a non-profit first amendment advocacy group, said that China is the world's top jailer of journalists, with 30 currently in prison and another 48 "cyber-dissidents" in detention.
Some Experts Say Global Online Freedom Act is Premature
Google and Microsoft have been criticized for agreeing to censor themselves in China. They, along with Yahoo!, say they have adhered to a Global Network Initiative (GNI) code of conduct formed to "help stakeholders in the technology industry uphold the rights of freedom of expression and privacy in the face of pressures from governments to comply with laws and policies that violate these internationally recognized human rights."
Yahoo! has said that the company was founded on the principle that promoting access to information can improve lives and advance human rights around the world, and it is hosting a Business and Human Rights Summit this week at its Sunnyvale, California, headquarters.
Some experts say that the GNI should continue to conduct research before a law like GOFA should be implemented.
Colin M. Maclay is the Managing Director of Harvard University's Berkman Center for Internet & Society, an organization involved with developing the GNI principles. He said he is worried that the problem of internet surveillance is an evolving global issue and that he fears Smith's bill is premature.
"What we've done with the GNI is to try to build a structure to lay the groundwork so that we will be able to pass a law. My fear is that a law [now] would be precipitous, that it's going to yield to unintended consequences, that it's going to not have a net positive effect," he said.
Sklar criticized the GNI principles saying that the companies took far too long to come up with broad-stroked language that has no value in practice: "It took more than two years to come up with little more than a very general statement of principles in support of internet privacy with no real content and no effective enforcement mechanism."
Sklar added that the GNI fails to address the issue of U.S. technology exports to China being used to allow the Chinese government to monitor internet use on a broader basis.
"[The GNI] doesn't address US support of improving monitoring capability involving the internet in foreign countries," said Sklar.
Previous Version of Global Online Freedom Act Never Reached House Floor
Rep. Smith agrees that the GNI does not prevent IT companies from blocking web sites, controlling search engine results, or answering secret police subpoenas for information identifying dissidents so they can be tracked down and even imprisoned.
"Though GNI was a step in the right direction, it has not changed the bottom line," he said.
A previous version of GOFA, approved by the House Foreign Affairs Committee in October 2007, did not reach the House floor.