Category Archives: Internet Filtering

Yahoo!, the Shi Tao Case, and the Benefit of the Doubt

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Rep. Tom Lantos has called on Yahoo! executives to return to Congress to talk about what they knew and when in the Shi Tao case. Rep. Lantos alleges that Yahoo!’s general counsel misled a hearing (at which I and others submitted testimony, too) in 2006 by indicating that the company knew less than it actually did about why the Chinese state police were asking for information about Shi, a dissident and journalist. Yahoo! did turn over the information; the Chinese prosecuted Shi; he remains in jail; and the issue continues to point to the single hardest thing about our US tech companies doing business in places that practice online censorship and surveillance. The case has led to Congressional hearings, proposed legislation, shareholder motions, and lawsuits against Yahoo!

(For much more on the general topic of Internet filtering and surveillance, see the OpenNet Initiative’s web site, a consortium of four universities of which we are a part: Cambridge, Harvard Law School, Oxford, and Toronto.)

The hard problem at the core of this issue is that police come to technology companies every day to ask for information about their users. It is a fair point for technology companies to make that they often cannot know much about the reason for the policeman’s inquiry. It could be completely legitimate: an effort to prevent a crime from happening or bringing a criminal to justice. In the United States, these requests come in the context of the rule of law, including a formal reliance on due process. And every once in a while, a technology company pushes back on requests for data of this sort, publicly or privately. The process is imperfect, if you consider it from a privacy standpoint, but it works — a balance is found between the civil liberties of the individual and the legitimate needs of law enforcement to keep us safe and to uphold the rules to which we all agree as citizens.

This hard problem is much harder in the context of, say, China. It’s not the only example, but it’s the example here with Shi Tao. In Yahoo!’s testimony in 2006, Michael Callahan, the executive vice president and general counsel, said that Yahoo! did not know the reasons for the Chinese state police’s request for information about Shi.

You can read the testimony for yourself here. The relevant statement by Mr. Callahan is:

“The Shi Tao case raises profound and troubling questions about basic human rights. Nevertheless, it is important to lay out the facts. When Yahoo! China in Beijing was required to provide information about the user, who we later learned was Shi Tao, we had no information about the nature of the investigation. Indeed, we were unaware of the particular facts surrounding the case until the news story emerged.” (Emphasis mine.)

The key phrase: “No information about the nature of the investigation.” Not that the information was inconclusive, or vague, or hard to translate, or possibly of concern. “No information.”

Now, we are told, there’s a big disagreement about whether that testimony was accurate.

Rep. Lantos, in a statement yesterday, claims that Callahan misled the committee. Lantos writes: “”Our committee has established that Yahoo! provided false information to Congress in early 2006. … We want to clarify how that happened, and to hold the company to account for its actions both before and after its testimony proved untrue. And we want to examine what steps the company has taken since then to protect the privacy rights of its users in China.” Rep. Chris Smith (R-NJ) says it more harshly: “Last year, in sworn testimony before my subcommittee, a Yahoo! official testified that the company knew nothing ‘about the nature of the investigation’ into Shi Tao, a pro-democracy activist who is now serving ten years on trumped up charges. We have now learned there is much more to the story than Yahoo let on, and a Chinese government document that Yahoo had in their possession at the time of the hearing left little doubt of the government’s intentions. … U.S. companies must hold the line and not work hand in glove with the secret police.”

Yahoo! responded with its own statement, pasted here in full:

“Yahoo! Statement on Foreign Relations Committee Hearing Announcement
October 16, 2007

“The House Foreign Affairs Committee’s decision to single out Yahoo! and accuse the company of making misstatements is grossly unfair and mischaracterizes the nature and intent of our past testimony.

“As the Committee well knows from repeated meetings and conversations, Yahoo! representatives were truthful with the Committee. This issue revolves around a genuine disagreement with the Committee over the information provided.”

“We had hoped that we could work with the Committee to have an open and constructive dialogue about the complicated nature of doing business in China.”

“All businesses interacting with China face difficult questions of how to best balance the democratizing forces of open commerce and free expression with the very real challenges of operating in countries that restrict access to information. This challenge is particularly acute for technology and communication companies such as Yahoo!.”
“As we have made clear to Chairman Lantos and the Committee on Foreign Affairs, Yahoo! has treated these issues with the gravity and attention they demand. We are engaged in a multi-stakeholder process with other companies and the human rights community to develop a global code of conduct for operating in countries around the world, including China. We are also actively engaged with the Department of State to assist and encourage the government’s efforts to deal with these issues on a diplomatic level.”

“We believe the answers to these broad and complex questions require a constructive dialogue with all stakeholders engaged in a collaborative manner. It is our hope that the Committee will approach the hearing in that same constructive spirit.”

I can understand why Yahoo! is claiming that they are being treated unfairly. Yahoo! has been the company that has been most tarred, in some ways, for a problem that is industry-wide, and should be resolved on an industry-wide (or broader, such as law or international law) basis. Yahoo! has been a very constructive player in the ongoing effort to come up with a code of conduct for companies in this position (along with Google, Microsoft, and others). And Yahoo! has been working hard to establish internal practices to head off similar situations and voicing its concern about Chinese policies in this arena. Their efforts since the Shi Tao case on this front have been laudable.

But if in fact the company knew more — even a little bit more — about why the Chinese police came knocking for Shi Tao than what Mr. Callahan led all of us to believe, (“no information”), then it is a big problem. Unless there are facts that I’m missing, for the Congress to call Yahoo! back to Capitol Hill to correct the record, in public, is completely appropriate, if “no information” is not what we were meant to understand. It may well be that what the company knew was in fact so vague, as many legal terms are in China, as to be inclusive. It may well be that someone in the company knew, but the right people didn’t know — and that an internal process was flawed in this case. But those are very different discussions, ones we should have, than the straight-up problem that the company didn’t have context for the request.

Because I respect many of the people working hard on this issue within Yahoo!, and credit that Jerry Yang is very well-meaning on this topic, I’ve been willing to give Yahoo! a big benefit of the doubt. After all, a key part of our own legal system — as part of a rule of law that we’ve come to trust here — calls on us to do so. The big problem here for me is if we’ve in fact been misled, all of us, to believe that it was one problem when it really was quite another. If “no information” proves to be inaccurate, I’m not sure how much longer I can keep extending that benefit of the doubt in this case.

(The Merc’s Frank Davies wrote up the story here, among a few hundred others in the last 24 hours. Rebecca MacKinnon, of course, had the story months before (also here) and said already much what I’ve said here.)

Internet Filtering Session at the SDP 2007

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This morning — at the Summer Doctoral Program in Cambridge, MA — we’re taking up the topic of Internet filtering and the work of the ONI (and what we’ve written about in our forthcoming book from MIT Press, called Access Denied). Some of the questions that students raised about the topic and after reading our work on it:

– One student says that her dad read a copy of Dr. Zhivago, censored at the time in his country, where each page was accessible to him only as a photograph. One of her points, I think, is that history repeats itself and we should understand how this story is a repeat and where it is new and different than previous stories of censorship. One student suggests, as a follow-up: let’s test the hypothesis that the Internet is revolutionary. A second of her points, I take it, is that people will figure ways around censorship in clever ways.

– How do you measure filtering of the Internet and then analyze what you’ve learned in a way that informs decision-making?

– How do you measure the impact of filtering on access to knowledge?

– Do we need to have ISPs that act like common carrier who do not ever filter?

– What is the role of large countries as neighbors to smaller countries, raised by the possibility of in-stream filtering?

– What is the role of the commercial filtering providers?

– How can we determine whether the practice of Internet filtering violates a universal right to access information?

– How can we study how copyright and trademark owners carry out filtering?

– Is there legitimate filtering? (A student posits: there is legitimate filtering, including via search engine. This concept invokes what Urs Gasser blogged about, provocatively, at the ONI conference about “best practices in Internet filtering.”)

– How do we study the circumvention piece and include it in our story? What about developing the tools of circumvention?

– How do you overlay cultural differences on this survey?

– To what extent does control of communications facilitate control of other institutions, tools, or otherwise? To what extent is control of communications a priority for a given authority?

– When does one state have the right and/or ability to influence what another state does in this domain?

See Daithi and Ismael for more, better than what I’ve posted here.

Berkman Books

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The faculty and fellows of the Berkman Center will publish four books this year. Two of them are out already: David Weinberger’s Everything is Miscellaneous and John Clippinger’s A Crowd of One. In celebration of this high-water mark for the team, we’ve put together a new page on the Berkman web site called Berkman Books, which features most of the relevant books written by Berkman faculty and fellows since our founding nearly 10 years ago. We’ll keep it updated as new ones come online, such as the ONI‘s Access Denied (on Internet filtering) and Prof. Jonathan Zittrain’s The Future of the Internet — and How to Stop It, both due out later this year.

OpenNet Initiative Study, New Web Site Released

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I couldn’t be more excited about the release today of our new ONI web site and the release of our first global study.  We’re here in Oxford, England, at what my colleague Ron Deibert calls “the first ONI Woodstock, without the drugs.”  The headline of the study is a substantial growth in the scale, scope and sophistication of Internet filtering worldwide, in 25 of the 41 states in which we tested.

OpenNet Initiative Conference, Study Release This Week

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We’re gearing up this week to host our first big Internet filtering conference this week, which is already oversubscribed. The event is taking place in Oxford, England, hosted by our partners at the Oxford Internet Institute, in cooperation with our other partners at the University of Toronto’s Citizen Lab and the University of Cambridge’s Advanced Network Research Group at the Cambridge Security Programme. At this event, we will release the full set of data from the first-ever global survey of Internet filtering. In many ways, this release is the culmination of five years of work, since the ONI partners began testing for Internet filtering back in about 2002. The work is thanks to a number of grants, most notably a $3 million grant to ONI from the MacArthur Foundation, as well as key gifts from OSI, IDRC, the Ford Foundation, and others.

Feel free to add a question for discussion to the online question tool.

An even more complete version of this story, including chapters that set the data in context, will appear in our book, Access Denied: The Practice and Policy of Internet Politics, will be released this fall by MIT Press.

The First OpenNet Initiative Conference: Registration Opens

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The OpenNet Initiative is holding its first-ever conference on May 18 in Oxford, England, at the Oxford Internet Institute. The conference is free and open to the public, but you must register and the event is capped at 100 participants. You can register on this wiki. We will be sharing the initial results of our first global survey of Internet filtering, which will later be published by MIT Press in a book, Access Denied: The Practice and Politics of Internet Filtering, later this year. We hope you’ll join us in Oxford later this Spring.

Companies, NGOs, Investors, Techies, Academics Step Up on Censorship, Surveillance Issues

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This press release is actually big news. Google, Microsoft, Yahoo!, and Vodafone have been working very hard — alongside academics and NGOs — to produce a set of common principles guiding company behavior when faced with laws, regulations and policies that interfere with the achievement of human rights. There is an enormous amount of work to be done, but the process is headed in exactly the right direction, with leadership from BSR (Dunstan Hope & Aron Cramer), CDT (Leslie Harris), and many other good people. The companies should be applauded for taking this big, public step forward, as should the NGOs, academics, shareholders groups, and others who are committed to working shoulder-to-shoulder with them to get it right. Michael Samway of Yahoo! has a fine blog post on the topic here. Rebecca MacKinoon, always all over this issue, weighs in, too.

I am firmly of the view that this problem — of multinational corporations being required, as a matter of law or otherwise, to carry out censorship and surveillance at the behest of states — would best be solved by concerted action of the sort announced today, rather than through legislation as a first pass. One example of such proposed legislation is the Global Online Freedom Act of 2006 (as described here by RMack), which has recently been reintroduced by Rep. Smith. GOFA has noble ends, but is not the best means. The proposed bill would make it nearly impossible for US technology firms to compete in markets like China. If an industry code of conduct were to emerge that has real bite to it, and where NGOs and investors and academics are on hand to ensure that signatory companies live up to it, the results could be far better. And over time, it might well make sense to redact the global industry agreement into law or a treaty to ensure that it is enforceable, evolves over time, and has true public oversight.

For our part, we at the Berkman Center have been proud to have worked with our colleagues on the OpenNet Initiative, as well as the University of California-Berkeley (Xiao Qiang, Deirdre Mulligan, Roxanna Altholz), the University of St. Gallen (Urs Gasser), and the Oxford Internet Institute (JZ!), among others, as participants in earlier iterations of this process, which we called the OpenNet Consensus. Friendly funders from the Open Society Institute (Vera Franz) and the MacArthur Foundation (John Bracken) have stepped up, early on, to support various NGO/academic players in this subject matter area, such as the ONI and the ONC.

The initial participants in this now-public next phase of the process include:

# Berkman Center for Internet & Society at Harvard Law School
# Boston Common Asset Management
# Business for Social Responsibility (Facilitator)
# Calvert Group
# Center for Democracy and Technology (Facilitator)
# Committee to Protect Journalists
# Domini Social Investments LLC
# Electronic Frontier Foundation
# Enterprise Privacy Group
# F&C Asset Management
# Google, Inc.
# Human Rights First
# Human Rights in China
# Human Rights Watch
# International Business Leaders Forum
# International Council on Human Rights Policy
# Microsoft
# Reporters Without Borders
# Trillium Asset Management
# United Nations Special Representative to the Secretary-General on business & human rights (Observer status)
# University of California, Berkeley School of Law-Boalt Hall
# Vodafone
# Yahoo! Inc.