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, Xiaoning 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.
Xiaoning v. Yahoo! Inc.'s Invocation of the Alien Tort Statute: An Important Issue but an Improper Vehicle,
11 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol11/iss1/4