ACSBlog: The Blog of the American Constitution Society

by Martin Magnusson, Editor-at-Large

Wang Xiaoning is a Chinese political activist who has advocated democratic reform in his homeland. Because of China's repressive political regime, activists such as Mr. Wang frequently communicate through anonymous means, most often the internet. Despite the Chinese government's vigorous efforts to control online communications, the internet remains a powerful, if constrained, force for free political discourse in China.

Mr. Wang, for instance, edited two pro-democracy journals and distributed them through Yahoo groups. His articles called for peaceful democratic reform and a nonviolent end to China's single-party system. Mr. Wang's language might seem tame by American standards: 

·       “Without a multi-party system, free elections and separation of powers, any political reform is fraudulent.”

·       “Look at China today – workers and peasants have been suppressed into the lowest level of society. Tens of millions of workers are unemployed and many workers are cruelly exploited and oppressed; they have no right to strike or establish labor unions, and no protection for their most basic rights.”

The Chinese government, though, was very concerned by these statements. Silencing Mr. Wang's criticism proved remarkably easy; Yahoo had already agreed to enforce Chinese speech regulations by way of its signing the “Public Pledge on Self-Discipline for the China Internet Industry.” When they noticed the political slant of his speech, administrators simply blocked Mr. Wang from posting to Yahoo groups.

When he was no longer able to post his journals to Yahoo groups, Mr. Wang began emailing them to individual recipients. The Chinese government then approached Yahoo and asked it for identifying information about the sender. Yahoo complied with this request. 

Shortly thereafter, Mr. Wang was arrested and detained. His property was seized. He was sent to a forced labor camp and eventually convicted of “incitement to subvert state power.” He was sentenced to ten years of imprisonment. Mr. Wang is currently serving his sentence at Beijing Municipal No. 2 Prison, which has been characterized as “a secretive, highsecurity forced labor prison where serious and 'special control' prisoners are held, particularly political prisoners.”

Political prisoners such as Mr. Wang face tremendous obstacles to vindicating their rights in court. Typically, bringing suit in the country where they are being held is very difficult. They often face inhospitable courts and may even jeopardize their physical safety by initiating litigation. 

Suing in a United States court is often equally difficult, because American laws typically don't apply outside of the United States. In the past few years, though, human rights lawyers have been using the Alien Tort Claims Act in their efforts to vindicate the rights of foreign political prisoners. The Alien Tort Claims Act, 28 U.S.C. §1350, is one of America's oldest laws. It simply states that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

This law allows federal courts to hear civil disputes involving international law. The legislative intent behind it was likely to prevent the fledgling United States from becoming a haven for pirates. Because it allows foreigners to sue for violations of international law in federal courts, though, it has recently become an important tool in human rights litigation. 

In a suit recently filed in federal district court, Mr. Wang's wife has invoked the Alien Tort Claims Act to bring suit against Yahoo. Her complaint alleges that by releasing data that subsequently allowed the Chinese government to identify him, Yahoo has abetted Mr. Wang's torture, as well as that of other pro-democracy dissidents. Her complaint describes the stark conditions of his confinement:

Wang Xiaoning has continued to suffer severe physical, psychological, and emotional abuse as a result of the court’s decision that his writings and beliefs were subversive. . . . He is held in a cell with nine other inmates and subjected to malnourishment. The prison guards deny Wang any access to recreation or even sunlight for weeks and even months at a time, even though the standard at the prison is to allow prisoners outside once a day. Prison officials refused to allow Wang to see his mother before her death in September 2005. Wang’s access to family members is strictly limited, with his wife allowed to see him at most for only one half hour per month. 

Ms. Wang's argument is essentially that Yahoo is complicit in the torture of her husband. In responding to the general accusation that its cooperation with Chinese authorities undermines human rights, though, Yahoo has contended that it must comply with local law:

Doing business in certain countries presents U.S. companies with challenging and complex questions. We are deeply concerned by efforts of governments to restrict and control open access to information and communication. We also firmly believe the continued presence and engagement of companies like Yahoo! is a powerful force in promoting openness and reform. 

Private industry alone cannot effectively influence foreign government policies on issues like the free exchange of ideas, maximum access to information, and human rights reform, and we believe continued government-to-government dialogue is vital to achieve progress on these complex political issues.

Amnesty International, however, has questioned Yahoo's stance on this issue. Amnesty contends that Yahoo's compliance with Chinese speech restrictions flies in the face of its supposed core values:

They argue that although it is not an ideal situation, their presence in China is a force for good. They assert that without their input, censorship would still take place and that censored information is better than no information at all. The reality is that the Internet has had an established presence in China for over a decade, which means that the world’s major Internet companies can no longer be considered to be helping bring the Internet to China. Instead, they are attempting to gain an increasing share of a rapidly growing market in the knowledge that it will expand, with or without their presence. In effect their activities are facilitating and sanctioning government censorship rather than challenging it. Companies appear to have been all too ready to accept the limitations imposed rather than exerting pressure for legislative and policy change. 

The Washington Post, Paper Chase, the Independent and Human Rights USA (the organization representing Ms. Wang in her suit against Yahoo) all have more on this case.