The Third Way For Yahoo
With the coming of The Case of Li Zhi, it is time to revisit the options that Yahoo! has. Reporters Without Borders said:
Reporters Without Borders called on Yahoo ! to supply a list of all cyberdissidents it has provided data on, beginning with 81 people in China whose release the worldwide press freedom organization is currently campaigning for. It said it had discovered that Yahoo ! customer and cyberdissident Li Zhi had been given his eight-year prison sentence in December 2003 based on electronic records provided by Yahoo. “How many more cases are we going to find ?” it asked. “We were sure the case of Shi Tao, who was jailed for 10 years last April on the basis of Yahoo-supplied data, was not the only one. Now we know Yahoo works regularly and efficiently with the Chinese police. The firm says it simply responds to requests from the authorities for data without ever knowing what it will be used for. But this argument no longer holds water. Yahoo certainly knew it was helping to arrest political dissidents and journalists, not just ordinary criminals.
Since this post is titled "The Third Way," I need to describe the first two ways. This was given in an old post, which I will reproduce here.
I ask that you imagine how such a case develops operationally under the existing regulations in China.
There are two parties involved (apart from the subject of the investigation). On one hand, there is an investigative officer with the Chinese public security bureau. On the other hand, there is a specific employee at an Internet Service Provider (using Yahoo as the example here).
The case begins when the investigative officer receives information about the intercept of a certain piece of 'harmful' information. The email was sent from the account firstname.lastname@example.org on January 4, 2006 at 4:11pm. The investigative officer now needs to find the sender. He sees that the ISP (for Internet Service Provider) is yahoo.com.cn. He proceeds to the website yahoo.com.cn. At the bottom of the page, there is an ICP (for Internet Content Provider) icon. He clicks on the icon and a graphic image appears (for example, the one below was for yahoo.com.cn). All Chinese websites are required to be registered and have the ICP image available at the bottom of their home pages.
So the investigative officer sees that yahoo.com.cn is registered as Beijing ICP permit number 000022. The legal representative is Xu Shihuang (许世煌) and the registered address is Beijing City Chaoyang District Guanghua Road Huoqiao Building Room B610. The investigative officer prepares a warrant addressed to Xu Shihuang of Yahoo China and proceeds to the address to serve the warrant. The warrant will demand to know the name of the sender and other technical information (such as the IP address, etc). The warrant does not contain any information about the case itself (certainly, the name of the individual is unknown by definition; and the alleged criminal activity is not described as this is an ongoing investigation in which the suspect may never be charged). The investigative officer arrives at the office, hands over the warrant and then waits for the information.
The following document is purported to the actual warrant in the case of Shi Tao (via Boxun):
[Translation via RConversation]
Beijing State Security Bureau
Notice of Evidence Collection
 BJ State Sec. Ev. Coll. No. 02
Beijing Representative Office, Yahoo! (HK) Holdings Ltd.:
According to investigation, your office is in possession of the following items relating to a case of suspecting illegal provision of state secrets to foreign entities that is currently under investigation by our bureau. In accordance with Article 45 of the Criminal Procedure Law of the PRC, [these items] may be collected. The items for collection are:
Email account registration information for email@example.com, all login times, corresponding IP addresses, and relevant email content from February 22, 2004 to present.
Beijing State Security Bureau (seal) April 22, 2004
Now consider the situation at Yahoo. Mr. Xu Shihuang is probably a senior Yahoo executive, so he will have an assistant dedicated to dealing with these types of law enforcement warrants. On a typical day, he may get dozens, if not hundreds of such requests for information. Each warrant will be terse, concise and specific. And the nature of the alleged crimes is not disclosed. Some of these may indeed be about human rights oppression, but there are also real crimes (such as blackmailing, kiddie porn, phishing, etc). For an example, see The Anatomy of a Chinese Internet Crime.
What are Yahoo's options, given that there is no way of evaluating the individual merits of the one hundred or so warrants of the day?
Option 1: Fulfill all those warrants. This is what Yahoo is doing.
Option 2: Refuse to ever fulfill any warrant. This violates the terms of the ICP license and means that yahoo.com.cn will be shut down.
This is as simple as I can make it. The investigative officer hands in a proper warrant to the responsible person named in the ICP permit. He does not care where Yahoo stores its data (e.g. Hong Kong, California, Jamaica, whatever), he does not care where the parent company is registered and he will accept no excuses. Failure to produce the data is a violation of the terms of the ICP license. Period.
This is the reason why I and all those who agreed with me sat down and sighed, because we saw no way out. On top of that is the awareness that if Yahoo chose to refuse, they don't even know if they are defending human rights -- because they are also fighting this battle to protect the privacy of blackmailers, pornographers, phishers, etc. Therefore, I called Option 2 bone-headed. The warrant in Shi Tao's case says specifically "illegal provision of state secrets to foreign entities." Does that mean that you can turn down all such requests because they must all be about political dissidents? Of course not, because sometimes there are legitimate national security issues and there is no way to see the truth behind this warrant because you will not (and you need not be) told. Do you see a way out? Nobody else that I have talked to has an answer.
In private email exchange, I have discussed a third option with a number of people. They have not been able to convince me that it is viable. So I will describe this third option and give some illustrations why a Yahoo employee (say, the Law Enforcement Liaison Officer) would be way over his/her head on this sort of thing.
Option 3: The Yahoo Law Enforcement Liaison Officer would retrieve the information and determine as best as he/she could whether this was a common crime (such as phishing) or a case of human rights violation. In the latter case, Yahoo would decline to cooperate.
Some hypothetical examples are offered below.
Example 1: The subpoena only asks for the registration information of the account holder and nothing else. A search of the archives showed no activity (note: only emails within the last 60 days are retained and there is none). What will the Law Enforcement Liaison Officer do? Flip a coin?
Example 2: There is only one short email in the archives: "The stuff has arrived." What stuff? Heroin? Pipe bombs? Democracy-promoting pamphlets? The Law Enforcement Liaison Officer will have to decide and suffer the consequences.
Example 3: Using The Case of Li Changqing, there is an email which declares that more than 20 cases of dengue fever have been confirmed in Fuzhou City, but the government has been covering up this news. On one hand, it is known that this government is quite capable of doing that. On the other hand, it is also known that 'subversive elements' or 'angry/bored people' make this kind of stuff up. The Law Enforcement Liaison Officer will have to decide and suffer the consequences.
Example 4: Let us say that this is an email of the notice given in China Digital Times:
Announcement of Beijing Municipal Administration Office of Internet Propaganda
The media listed below are frequently chosen as sources for internet website, but they are currently not legally allowed to be copied. Please do not copy current news and politics from those media. Please especially keep away from copying them in the front page or headline areas.
The Huashang Daily, The Chinese Business Morning View (Hua Shang Chen Bao), The Jiefang Daily Online--Shanghai Morning Post (Xin Wen Chen Bao), The Jin Chu Online-Chu Tian Metropolitan News (Chu Tian Du Shi Bao), The Bei Guo Online—Ban Dao Chen Bao, The Star Daily (Bei Jing Yu Le Xin Bao), The International Herald Leader (Guo Ji Xian Qu Dao Bao), The China Business News (Di Yi Cai Jing Ri Bao), The Hua Xia Jing Wei Online, The China Taiwan Online, Chongqing Morning News (Chongqing Chen Bao), The Oriental Morning Post (Dong Fang Zao Bao), Chongqing Business News (Chong Qing Shang Bao ), The First (Jing Bao), YNET.com (Bei Qing Wang), The Legal Evening News (Fa Zhi Wan Bao), The Today Morning News (Jin Ri Zao Bao), The Southern Metropolitan News (Nan Fang Du Shi Bao), Chengdu Evening News, Lanzhou Morning News, Haixia Dushi Bao.
Are you sure that this is an actual notice from the Beijing Municipal Administration Office of Internet Propaganda, or a fabrication? The Yahoo Law Enforcement Liaison Officer will have to make the call.
Example 5: Let us say that the emails contain references of an outfit called the Chinese Development Union. The Yahoo Law Enforcement Liaison Officer has never heard of them. A quick educational lesson is needed. It is time to hit Google and find out more about this organization. Here is the top Google result from AFP:
A prominent Chinese dissident who has savaged Beijing's industrial policies said in a radio interview broadcast Thursday he had escaped his homeland and was in hiding in Southeast Asia. Peng Ming, 43, founder of the China Development Union, an environmental research group, was arrested last year and served 18 months in a labour camp. He was released in August but later fled, believing he faced another detention.
Peng said in the interview, conducted in Mandarin Chinese by Radio Free Asia, that his organisation, which claims a membership of 7,000 people, would thrive in his absence. "The China Development Union has been silence but not eliminated," he said. "...We have changed our method of operation, we are getting stronger and stronger." Peng refused to give exact details of his location, but urged Chinese authorities in the interview not to punish his family or friends for his flight.
The China Development Union is an intellectual and environmental group which claims that it is above partisan politics. In his most well known work "The Fourth Landmark" published in Hong Kong two years ago, Peng argued that China's industrialisation policies over the past half century would cause "enormous" environmental disasters. He advocated an alternative policy suited to China's vast population and limited resources.
Radio Free Asia, which is based in Washington, was established in 1996 as a private corporation funded by Congress to broadcast to China, Tibet, Vietnam, Myanmar, North Korea, Laos and Cambodia.
Alternately, the top Yahoo search result is from the New York Times:
Only weeks after signing a global covenant calling for freedom of speech and assembly, China has taken new steps to suppress political organizations and debate. Monday, government agents closed a recently formed independent think tank in Beijing that sponsored research and unusual, open seminars on democracy and current affairs.
The think tank that was closed Monday, the China Development Union, was started this year by a 42 year-old former official and businessman, Peng Ming. It has sponsored research and frequent public seminars, attended by a few dozen people, on topics ranging from democratic theory to environmental policy. Recently, Peng started enlisting intellectuals and others as members; he recently asserted that several thousand people had joined and that he hoped to sign up millions in a movement to push for new ideas and policies. Peng's ideas are somewhat eclectic and he has had few associations with the better known, and often more radical, dissidents here. But he has walked a risky legal line. In an effort to bypass the general rule that all groups must have government sponsors, he had registered the China Development Union in Hong Kong.
But Monday, agents who said they were from the Beijing Bureau of Civil Affairs entered the union offices, held Peng and eight others for three hours of questioning, said the group was operating illegally and took away the office computer and other documents. According to Peng, they also searched the home of a U.S. citizen and businesswoman who is a union board member, Qiao Zhihui (known as Wisdom Qiao) and took away her computer and other documents.
In an interview Tuesday, Peng said that while he believed the closure was illegal, he would comply with the orders to cease the union. But he vowed to continue the activities of a separate affiliated entity, the China Development New Strategy Research Institute, including its research and public forums. "They didn't say that was illegal," Peng said. Whether the tactic will work is unclear since Oct. 13 the research institute's sponsoring government agency severed its ties. The institute also remains registered in Hong Kong.
So the Chinese Development Union seems to be a legitimate democratic movement, right? The Yahoo Law Enforcement Liaison Officer keeps the faith and rejects the request, thereby bringing consequences to the entire yahoo.com.cn operation (e.g. cancellation of the Internet Content Provider permit, total shutdown, etc).
If the Yahoo Law Enforcement Liaison Officer had been a little more thorough, a Google search of the name "Peng Ming" would review something else (via China Daily):
Peng Ming, a Chinese national extradited from Myanmar, was sentenced to life imprisonment after being convicted of organizing and leading terrorist organizations, kidnapping and holding fake currencies. The Higher People's Court of central China's Hubei Province handed down the sentence on Friday. The court also deprived Peng of his political rights for life and fined him 35,000 yuan (US$4,300), upholding a verdict issued in the first instance trial in October.
Since November 2000, Peng had disseminated and pushed forward his propositions of violence and terrorism, recruited terrorists and incited kidnapping, murder and other terrorist activities through publishing books and Internet articles, and had formulated teaching schemes on terrorism. To obtain funds for his terrorist activities, Peng masterminded, organized and directed six kidnaps in Wuhan, Changsha and Beijing from early 2002 to May 2004.
The court found that Peng plotted and established a terrorist training base in Myanmar from June of 2003 to early 2004, and demanded all trainees of the base enroll new members and carry out terrorist activities after returning to China. Peng was arrested by Myanmar police on May 22, 2004 when he was carrying 10,800 yuan (US$1,300) of fake Chinese currency into Myanmar from Thailand. A local court in Myanmar sentenced Peng to seven years in jail on May 26, 2004. Later, Myanmar handed over Peng to the Chinese judicial authorities in accordance with an agreement between the two countries.
Oops! The Yahoo Law Enforcement Liaison Officer has just tried to shield a 'terrorist' organization as officially defined. All of a sudden, this is not looking too pretty, is it? Maybe you have a martyr syndrome and you want to go down in flames, but this is not doing anyone any favors.
In the case of Li Zhi, the emails contained references to the China Democratic Party. The Yahoo Law Enforcement Liaison Officer would probably not know much about them either. Some careful inquiries would show that they were banned through a Ministry of Public Security announcement. There will be conflicting statements about the China Democratic Party (you read the party platform and there is no reference to violence and subversion, but they also offered support to China Development Union's Peng Ming) and the Yahoo Law Enforcement Liaison Officer would have to sort them out to come up with a decision with major consequences for the company. And there is no assurance that the right thing was done.
When you grow up, would you like to be the Yahoo Law Enforcement Liaison Officer?
Yahoo spokesperson Mary Osako pointed out that Yahoo’s Chinese partner, Alibaba, has been managing all the operational and compliance policies for Yahoo’s China business since October 2005.
In cases prior to that time, she said that Yahoo was not aware of why the Chinese government was seeking information. “As in most jurisdictions, including the U.S., governments are not required to inform service providers about why they are seeking information,” said Ms. Osako.
“We would not know if a request had to do with murder, kidnapping, or a political request,” she added. “We only responded with what we were legally required to provide and nothing more. We are rigorous in our procedures and made sure that only the required material was provided.” ...
“The firm says it simply responds to requests from the authorities for data without ever knowing what it will be used for,” said a statement from Reporters Without Borders. “But this argument no longer holds water. Yahoo certainly knew it was helping to arrest political dissidents and journalists, not just ordinary criminals.”
In the Shi Tao case, Yahoo insisted it complied with a Chinese government order. “That was in accordance with a valid and legal demand from the PRC enforcement authorities,” said Ms. Osako. “As we now know through the efforts of concerned organizations, there was an instance where the information we were compelled to provide under Chinese law in the past had serious and disturbing consequences.”
(The Herald) Web firm accused of helping to convict dissident. By Damien Henderson. February 10, 2006.
Paris-based Reporters Without Borders (RWB) claimed Yahoo!'s Hong Kong unit provide information about Mr Li's Chinese account which led to his detention.
This was denied by a Yahoo! spokeswoman who said the Hong Kong branch would not have access to the account and would not disclose any details of subscribers to the Chinese government. She said an investigation has been launched into whether Yahoo! China, run by a partner company, had leaked the data.
(AP) Yahoo: we must obey China's law. June 12, 2007.
China should not punish people for expressing their political views on the Internet, Yahoo Inc said Monday - one day after the mother of a jailed Chinese reporter announced she was suing the US company for helping officials imprison her son. Yahoo criticized China in a brief statement that did not mention the case of jailed journalist Shi Tao, whose mother visited Hong Kong Sunday. Shi was sentenced to 10 years in prison in 2005 after sending an e-mail about Chinese media restrictions.
"Yahoo is dismayed that citizens in China have been imprisoned for expressing their political views on the Internet," the company said in the statement faxed to The Associated Press, which asked Yahoo to comment on Shi's lawsuit. The Internet company also said it has told China that it condemns "punishment of any activity internationally recognized as free expression." However, Yahoo added that companies operating in China must comply with Chinese law or their employees risk facing civil or criminal penalties.
The company has acknowledged sharing information about Shi with Chinese authorities. Shi was writing for the financial publication Contemporary Business News when he circulated an e-mail with notes on a government circular about media restrictions. He was convicted of leaking state secrets.
Shi's legal challenge, filed May 29 in the US District Court, is part of a lawsuit filed earlier by the World Organization for Human Rights USA. The group is suing Yahoo Inc and its subsidiary in Hong Kong. Also named is Alibaba.com Inc, a Yahoo partner that runs Yahoo China.
In Hong Kong Sunday Shi's mother, Gao Qingsheng, insisted her son is innocent and that the family would press ahead with legal action. "We will fight until the end," she told reporters. The 61-year-old mother was in South Africa last week to receive the annual Golden Pen of Freedom prize on behalf of her son.