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Ninth Circuit upholds dismissal of Chinese dissident’s lawsuit against Yahoo

Ning Xianhua says Yahoo helped Chinese authorities identify his pro-democracy activities, which led to him being tortured and imprisoned for more than six years.

(CN) — The Ninth Circuit on Thursday upheld the dismissal of a lawsuit filed by a Chinese dissident against Yahoo's parent company Oath Holdings, accusing Yahoo of actively helping the People's Republic of China's communist regime to identify the man as a pro-democracy dissident.

"With the benefit of effective, active assistance from the Yahoo! defendants in California, the PRC arbitrarily arrested, imprisoned, and tortured numerous pro-democracy dissidents," Ning Xianhua, a Chinese national now living in New York, said in a federal complaint filed in June 2021.

U.S. District Judge Lucy Koh (now herself a Ninth Circuit judge) dismissed the lawsuit, finding that Ning's complaint lacked specificity.

“Plaintiff does not allege when he opened a Yahoo account, when he used his Yahoo account to send and receive pro-democracy materials, when he was arrested by PRC authorities, when he was confined and tortured by PRC authorities, and when he left China,” Koh wrote. She allowed Ning to re-file his suit with more details.

Instead, Ning appealed to the Ninth Circuit, asking a three-judge panel to review the case de novo. In a terse three-page ruling, the panel agreed the case should be dismissed but used slightly different reasoning, finding that the complaint failed to "plausibly allege relevant conduct within the United States beyond 'general corporate activity,'" and failed to "plausibly allege" that former Yahoo CEOs Terry Semel and Jerry Yang "acted under actual or apparent authority, or color of law, of the People’s Republic of China."

Ning's lawyer, Paul Hoffman, called the ruling "disappointing."

"There’s not a lot of meat to it," he said. "I’m a little surprised that they gave such short shrift to the allegations in the case. But we had a fairly conservative panel, so it’s not completely surprising."

U.S. Circuit Judges M. Margaret McKeown, a Bill Clinton appointee, Jay Bybee, a George W. Bush appointee, and Patrick Bumatay, a Donald Trump appointee, made up the panel.

"Mr. Ning underwent severe persecution and human rights violations," Hoffman said. "I think he was entitled to a more thorough analysis of the legal issues in this case."

The attorney for Oath Holdings declined to comment.

It's not the first time that Yahoo has been sued over its cooperation with the PRC. In 2007, Yahoo was forced to admit that it had handed over to Chinese authorities information about the online activities of two Chinese journalists, Wang Xiaoning and Shi Tao. Both were sentenced to 10 years in prison. Both sued Yahoo, claiming that its collaboration with the PRC led to their torture in imprisonment. The incident led to the company being publicly excoriated by Congressman Tom Lantos, who said of the company during a committee hearing, "While technologically and financially you are giants, morally you are pygmies."

The case settled, and then-Yahoo CEO Jerry Yang, who was born in Taiwan, apologized to the journalists and their families. As part of the settlement, the company agreed to pay $3.2 million to relatives of each of the two imprisoned journalists, and set up a $17 million humanitarian fund dedicated to helping other dissidents.

Ten years later, Yahoo was sued for failing to properly oversee the fund. According to that suit, the fund's manager, a Chinese dissident himself, spent millions on high-end real estate, and used less than 4% of the fund for humanitarian aid.

Ning, now 69, is a longtime pro-democracy and labor activist, having taken part in the historic protest at Tiananmen Square in 1989 which ended in a violent crackdown that claimed the lives of at least hundreds, if not thousands, of civilians. In the years that followed, Ning took steps to hide his identity and correspondence from the authorities, encrypting various materials he sent from his Yahoo email account in the early 2000s.

"He thought that through Yahoo’s services, he could fight for democracy while protecting his identity from PRC officials," Ning said in his lawsuit. "Mr. Ning did not know that defendants had agreed to provide and did provide the communist Chinese regime with his confidential communications and other protected information."

Ning was arrested by 12 armed PRC officers at a restaurant in Chengdu in 2003. After a 54-hour drive to Shenyang, Ning was repeatedly interrogated and tortured. At one point, he was shackled to a "Tiger Chair," a "high-backed, spiked chair created for the sole purpose of torture-based interrogation that causes increasingly greater discomfort to the back and buttocks as handcuffs and shackles are intermittently tightened."

Throughout the interrogation, PRC officers asked about the content of his Yahoo email messages. The questions "centered on Mr. Ning’s interactions and communications with overseas, pro-democracy activists through his Yahoo! email account. Investigators directly referenced the contents of emails exchanged between Mr. Ning and a pro-democracy activist who lived in San Francisco."

Following months of brutal interrogation that included physical torture, sleep deprivation and starvation, Ning was tried and convicted, and imprisoned until 2010. He was arrested again in 2014, when he was again tortured and interrogated. By 2014, he was "homeless, practically penniless, and in failing health," living in a constant "state of fear." Finally, in 2016, he fled to Thailand, and he was eventually granted political asylum in the United States.

"I think he’s recovered a lot from the physical injuries," said Hoffman, his lawyer. "But he underwent a set of very traumatic experiences. Like anyone, it’s going to be with him for the rest of his life.

"It’s sad that Yahoo hasn’t done right by the people it hurt."

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Categories / Appeals, International, Technology

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