By continually providing Chinese authorities with requested information, Yahoo!, Inc.’s involvement in China has led to the imprisonment of several Chinese democratic reform supporters over the years. Wang Xiaoning, a citizen and resident of China, experienced this state of affairs first hand when the Chinese government sentenced him to ten years in prison and two additional years of removed political rights after he had published and circulated articles online supporting democratic reform in China and conversed with a “hostile” overseas organization. Xiaoning’s case against Yahoo!, Inc. made national headlines and the following Note, featured in the Vanderbilt Journal of Entertainment and Technology Law’s Fall 2008 issue (Vol. 11 No. 1) addresses the implications of this important decision. The abstract of the Note follows.

U.S.-based Internet Service Providers (ISPs) are faced with a dilemma when operating in countries with restrictive Internet speech laws: should they comply with these governments’ demands for personally identifying information of Internet dissidents or respect their own country’s dedication to free speech and refuse to comply? On behalf of Chinese dissidents who were imprisoned for violating Chinese speech laws, human rights advocates have invoked the Alien Tort Statute (ATS) in an attempt to hold ISPs accountable for their acquiescence with the Chinese government’s demands. This Note examines one such case, Xioning v. Yahoo! Inc., and ultimately concludes that, while the issues presented in the suit are important, the ATS is not the proper vehicle through which to address them.

The ATS, adopted in 1789, gives U.S. district courts original jurisdiction over civil actions by aliens for torts committed in violation of the law of nations or a treaty of the United States. In the Supreme Court’s latest holding on the ATS, Sosa v. Alvarez, the Court set a high bar regarding what constitutes a violation of the law of nations, demanding specificity and acceptance by the civilized world. Moreover, the Court encouraged judicial restraint in recognizing new international violations due to the potential implications for the foreign relations of the United States, a lack of clear legislative guidelines, and other considerations. After Sosa, it is uncertain whether China’s free speech restrictions and prolonged imprisonment would constitute violations of international norms with the degree of consensus required by the Sosa court, but the lack of certainty, along with the Court’s emphasis on judicial restraint, would weigh in favor of courts not recognizing such a cause of action. Additionally, it is uncertain whether there is aiding and abetting liability under the ATS, and even if there is, whether complying ISPs would be liable under modern aiding and abetting standards.

Ultimately, courts should not become clogged with litigation regarding the application of an inapplicable statute. Rather, Congress should model its response after legislation that successfully addresses the issue, such as aspects of the Global Online Freedom Act, and the Global Compact, and collaborate with other countries and organizations to adequately address the problems presented in suits like Xiaoning’s that are likely to arise in the future.

Note Author: DeNae Thomas

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