Yahoo has settled a suit filed by the World Organization for Human Rights for confirming to the Chinese government the IP addresses of Shi Tao and Wang Xiaoning who were posting pro-democracy material online. The suit was based on the Alien Tort Claims Act. On NPR, reporters and commentators said that Yahoo was "shamed into settlement," and "urged to settle in a manner generous to the families," by the Congressional hearings that took place last week. To try and hide their shame, Yahoo is creating a human rights fund, in addition to the generous settlement.
My research tells me that ATCA suits are often settled, and for a much more important reason than preventing further shame to the culpable party. ATCA suits are settled to prevent case precedent from being established in how to proceed with ATCA litigation. The ATCA has been on the books since 1789, and it is only in the past three decades that it has been regularly invoked. Any company operating in a foreign country with a looser interpretation of human rights and a narrower view of what is tortious than in the US has incentive to prevent litigation of these issues or they might find themselves on the wrong end of many ATCA suits. If democracy is a human right, would it be tortious for internet search engines to block pro-democracy websites? Would a whole nation form a class if a suit such as this could be brought?
We might soon find out. Congress is considering a Global Online Freedom Act which would promote freedom of expression on the internet by protecting US business from coercion to cooperate with authoritarian regimes. Congress should be careful in crafting the remedies in this bill. Even with restrictions, any search engine is a powerful tool in promoting the freedom of expression and search engines controlled by US business should not be hamstrung from competing on a level playing field in the global search engine market.
2 comments:
You note that your research tells you that ATCA suits are often settled, but that is not the case in my experience. The vast majority of ATCA suits are dismissed at the motion to dismiss stage. Unocal of course is the exception, and resulted in a settlement. The GAP litigation is also a notable settlement-exception.
Yes, you are completely right. I should have written that more clearly. "The vast majority of ATCA suits are dismissed at the motion to dismiss stage," and anything that makes it beyond that stage is settled.
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