Did Yahoo Sell Out in Journalist Case?

Internet giant Yahoo, still under fire for providing Chinese authorities information used to sentence a journalist to ten years in prison, is now facing allegations that its justification for doing so may be legally unsound.

Yahoo co-founder Jerry Yang told an Internet conference, “I do not like the outcome of what happens with these things, but we have to follow the law,” the Washington Post reported on September 11. The company’s Hong Kong branch had provided mainland Chinese police details of an email, sent by journalist Shi Tao, that became evidence used to convict him of “leaking state secrets overseas.”

Guo Guoting, who was Shi’s defence lawyer in the case in early 2005, challenges Yang’s explanation. Guo was one of a handful of human rights lawyers in China.

“Yahoo [Hong Kong] has no obligation to obey China’s law,” he says.

Shi Tao was chief editor of Contemporary Business Newspaper. On April 20, 2004, he used Yahoo’s email service to send conference minutes to an overseas democracy web site. The email detailed media restrictions imposed prior to the 15-year anniversary of the Tiananmen Square massacre on June 4, 1989, according to the Writers in Prison Committee of the writers’ association International PEN. Yahoo Hong Kong provided the IP address from which the email originated, which Chinese police traced back to Shi’s computer.

Several rights groups have criticized Yahoo’s handling of the Shi case. “We already knew that Yahoo collaborates enthusiastically with the Chinese regime in questions of censorship, and now we know it is a Chinese police informant as well,” Reporters Without Borders said.

Guo had prepared to defend Shi in the case, pleading not guilty; one week before the court date, however, Chinese authorities stopped his business, took away his license to practise law, and held him under house arrest, ostensibly for posting essays on overseas websites. Shi was sentenced in April, and in May, with some influence from the Canadian government, Guo was able to visit Canada, where he has stayed.

“Shi Tao’s email was not a state secret according to the legal definition of state secrets in China,” he says, “because the content had nothing to do with the state security and state interests. In fact, the Chinese special agents knew of Shi’s email the moment after he sent it. However, they took no action until six months later, when they arrested Shi. On the one hand, it indicates that they had been following Shi, and on the other hand, it means that the so-called ‘state secrets’ in the email are not really state secrets.”

Jurisdiction in Question

Guo practised law for 20 years in China. “Shi sending the email was in part him practising his freedom of speech, and it’s what a journalist is paid to do,” he says. “It’s not criminal conduct. There’s no question of Yahoo being obligated to collaborate with Chinese authorities.” He says international law may take precedence in this case anyway.

“Furthermore, Yahoo Hong Kong’s legal registration is not in [mainland] China; it has no obligation at all to follow mainland China’s law.” Hong Kong returned to Chinese rule in 1997, but retains a special administrative status and its own legal system.

Which law, then, was Jerry Yang referring to when he said Yahoo must “follow the law”? An inquiry to Yahoo’s media relations department received no response.

Guo theorizes that Yang was referring to circumstances when a court has issued an order and related parties have an obligation to cooperate. “However,” he says, “Shi is not a criminal, and the court had not even tried him. In cases like this, companies or individuals have no obligation to cooperate.”

Western Businesses Toe the Line

Recent years have seen Western high-tech companies—eager to profit from the Chinese market—scramble to do business in China. Several, like Yahoo, have drawn criticism for their willingness to participate in the Chinese Communist Party’s efforts to block the free flow of information.

Ethan Gutmann, author of Losing the New China, describes a veritable parade of companies supplying surveillance equipment and helping to build the “Great Firewall of China,” including Sun Microsystems, Nokia, Motorola, and Cisco.

“I talked to a Cisco representative,” Gutmann said at an Epoch Times forum, “… and he told me, ‘We don’t care about the Chinese government rules; it’s none of Cisco’s business.’ However, it is part of Cisco’s business—because three-quarters of China’s routers, even today, are Cisco-made.”

“Nortel was a huge player,” he says. “They were incredibly active in trying to sell Chinese authorities wraparound surveillance capabilities.” He adds that “a senior [Nortel] engineer assured me that they had developed a ‘hundred-percent packet capture system’ and they said that it was specifically designed ‘to catch Falun Gong.’”

Microsoft drew fire in June for censoring words such as “freedom” and “human rights” in its blogging service. For Chinese users, Google’s news service omits from its search results all articles from news sources—including The Epoch Times—that Chinese censors have blocked.

Over 130 major web portals, including Yahoo, have “signed a voluntary pledge not to post information that would jeopardize state security and disrupt social stability in China,” according to a BBC report from September 2002.

Future Uncertain

It is common knowledge in China that domestic email services are unsafe, so dissidents and rights activists commonly rely on foreign services for ‘sensitive’ communications. For some, like Shi Tao, their trust may be misplaced.

Shi is a member of the Independent Chinese PEN Association, whose parent organization—London-based International PEN—has launched a series of appeal initiatives for him. Zhang Yu, a spokesman for the group, says, “After Shi Tao was put in jail, he was forced to do hard labour. He has lost more than 20 pounds. Shi’s family members are also under pressure due to their efforts to appeal for him.”

Zhang says that International PEN plans to meet with Yahoo executives soon.