(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.)