Comparing Yahoo and MSN Spaces

In the recent discussion over MSN Spaces removing Anti's blog, there is a loose tendency to bring in the subject of Corporate Social Responsibility and invoke the cases of Cisco, Yahoo and MSN Space (see, for example, ZDNet).

Now while the MSN Spaces situation is well-known by now and still ongoing, the Yahoo case occurred months ago and the situation is not well appreciated.  So I am going to make the case that they are very different.  My presentation is going to be very much oriented towards administrative regulations and operational procedures.

First, the Yahoo case.  I have an old post Yahoo! and the case of Shi Tao on September 8, 2005.  That post turned out to be quite controversial as part of the world (and I don't know what the proportion is) totally got it and commiserated with me about the lack of options while another part of the world hated me.  Here, I will not revisit the specifics of the case.  I ask instead that you imagine how such a case develops operationally under the existing regulations in China.

There are two parties involved (apart from the subject of the investigation).  On one hand, there is an investigative officer with the Chinese public security bureau.  On the other hand, there is a specific employee at an Internet Service Provider (using Yahoo as the example here).

The case begins when the investigative officer receives information about the intercept of a certain piece of 'harmful' information.  The email was sent from the account xyz19890604@yahoo.com.cn on January 4, 2006 at 4:11pm.  The investigative officer now needs to find the sender.  He sees that the ISP (for Internet Service Provider) is yahoo.com.cn.  He proceeds to the website yahoo.com.cn.  At the bottom of the page, there is an ICP (for Internet Content Provider) icon.  He clicks on the icon and a graphic image appears (for example, the one below was for yahoo.com.cn).  All Chinese websites are required to be registered and have the ICP image available at the bottom of their home pages.  

So the investigative officer sees that yahoo.com.cn is registered as Beijing ICP permit number 000022.  The legal representative is Xu Shihuang (许世煌) and the registered address is Beijing City Chaoyang District Guanghua Road Huoqiao Building Room B610.  The investigative officer prepares a warrant addressed to Xu Shihuang of Yahoo China and proceeds to the address to serve the warrant.  The warrant will demand to know the name of the sender and other technical information (such as the IP address, etc).  The warrant does not contain any information about the case itself (certainly, the name of the individual is unknown by definition; and the alleged criminal activity is not described as this is an ongoing investigation in which the suspect may never be charged).  The investigative officer arrives at the office, hands over the warrant and then waits for the information.

Now consider the situation at Yahoo.  Mr. Xu Shihuang is probably a senior Yahoo executive, so he will have an assistant dedicated to dealing with these types of law enforcement warrants.  On a typical day, he may get dozens, if not hundreds of such requests for information.  Each warrant will be terse, concise and specific.  And the nature of the alleged crimes is not disclosed.  Some of these may indeed be about human rights oppression, but there are also real crimes (such as blackmailing, kiddie porn, phishing, etc).  For an example, see The Anatomy of a Chinese Internet Crime.

What are Yahoo's options, given that there is no way of evaluating the individual merits of the one hundred or so warrants of the day?

Option 1: Fulfill all those warrants.  This is what Yahoo is doing.

Option 2: Refuse to ever fulfill any warrant.  This violates the terms of the ICP license and means that yahoo.com.cn will be shut down.

This is as simple as I can make it.  Previous discussions of the Shi Tao case has brought in extraneous factors such as Yahoo Hong Kong's role, or the location of Yahoo's mail servers.  But that is just smoke and mirrors.  The situation is much simpler -- the investigative officer hands in a proper warrant to the responsible person named in the ICP permit.  He does not care where Yahoo stores its data (e.g. Hong Kong, California, Jamaica, whatever), he does not care where the parent company is registered and he will accept no excuses.  Failure to produce the data is a violation of the terms of the ICP license.  Period.

This is the reason why I and all those who agreed with me sat down and sighed, because we saw no way out.  On top of that is the awareness that if Yahoo chose to refuse, they don't even know if they are defending human rights -- because they are also fighting this battle to protect the privacy of blackmailers, pornographers, phishers, etc.  Therefore, I called Option 2 bone-headed.  Do you see a way out?  Nobody else that I have talked to has an answer.

Now we come to the case of MSN Spaces, and it is a completely different situation.

First of all, MSN Spaces is not based in China and there does not have any Chinese licensing issues.  This is a global service that happens to be offered to people in China.

When a person signs up for MSN Spaces, there is the Code of Conduct, of which the following is included:

Prohibited Uses

Violations of the MSN Spaces Code of Conduct may result in the termination of access to MSN Spaces services or deletion of content without notice.

You will not upload, post, transmit, transfer, disseminate, distribute, or facilitate distribution of any content, including text, images, sound, data, information, or software, that: 

• ...

• is illegal or violates any local and national laws that apply to your location; including but not limited to child pornography, illegal drugs, copyright material and intellectual property not belonging to you.

• is intended to threaten, stalk, defame, defraud, degrade, victimize, or intimidate an individual or group of individuals for any reason; including on the basis of age, gender, disability, ethnicity, sexual orientation, race, or religion; or to incite or encourage any one else to do so.

• ...

Here is a more specific statement about what can happen from a MSN spokesperson cited at ZDNet:

MSN is committed to ensuring that products and services comply with global and local laws, norms, and industry practices. Most countries have laws and practices that require companies providing online services to make the Internet safe for local users. Occasionally, as in China, local laws and practices require consideration of unique elements.

Even more explicit is the statement at mc:space by Michael Connolly, a product manager at MSN Spaces:

... there are two main ways we moderate content on Spaces:

* Through the “report abuse” link at the bottom of every space. If you see inappropriate content, such as pornography, or out-right illegal content, like hate-speech or child pornography, let us know and we’ll investigate the problem and take appropriate action. Our main filter we use is, is this blog adhering to our Code of Conduct?

* We ban a set of “naughty” words from blog entry titles, so those who are maturity-challenged don’t use the F word all over the place, and show up in search results and the updated spaces list, spoiling the party for everyone. 

This system has been what we have been using since we launched Spaces, and we have not changed our practice, nor gotten more aggressive in the way we moderate. It’s been working for us, and for the Spaces community.

We are an international service, and we work hard to comply with the local laws (for illegal content) and local cultural norms (for inappropriate content) in all the markets we operate in. So, when using our two moderating techniques, we are cognizant of what market the content is published in. There are certain rules we have that generally apply to all markets: for instance, no pornography. We just didn’t want to go there with MSN Spaces. But, there are other guidelines that are more market-specific. For instance, the “middle finger” is a very obscene gesture in some areas, and is deemed culturally inappropriate, while in the United States, you would be hard pressed to see any photo of a bunch of college kids where one of them isn’t flipping the camera the bird. No harm, no foul. We don’t want to rule out the middle finger in all markets, so we just do it in the ones where it’s beyond the pale. And, even in the markets that don’t approve of the middle finger, we give the poster a friendly warning about the image, as opposed to taking the site down immediately.

In China, there is a unique issue for our entire industry: there are certain aspects of speech in China that are regulated by the government. We’ve made a choice to run a service in China, and to do that, we need to adhere to local regulations and laws. This is not unique to MSN Spaces; this is something that every company has to do if they operate in China. So, if a Chinese blog on MSN Spaces is reported to us by the community, or the Chinese government, as offensive, we have to ask ourselves: is this blog adhering to our code of Conduct? In many cases, the answer is “yes, this site is fine”. But, in some cases, the answer is “no”. And when an offense is found that actually breaks a national law, we have no choice but to take down the site. 

Procedurally, somebody had clicked the Report Abuse button to report on Anti's blog.  As indicated above, it could be a member of the community (such as a private citizen or even a competitor of MSN Spaces), or the Chinese government itself.  The identity of the person supposedly does not matter to MSN Spaces, as they claim that they will examine the totality of the evidence.  In this case, the totality of the evidence is the contents of that MSN Spaces blog and nothing else.  Whereas Yahoo had no evidence, MSN had all the evidence that it needed.  This 'trial' was conducted by a MSN Spaces employee, or a committee of MSN Spaces employees.  The net outcome of the Anti 'trial' was that the MSN Spaces employee (or employees) has (have) decided that the blogger failed to adhere to the Code of Conduct and/or broke a national law.  Therefore, the Anti space was taken down.

I will state that I am not necessarily adverse to the existence and need of such decisions.  As in the Yahoo case, we cannot say that banning any space with complaints against is bad nor allowing all spaces to function regardless is good.  I wish to be very specific here: I am challenging this decision regarding Anti's blog.  I have saved the last two posts from the Anti blog here: The second last one urges Beijing News subscribers to call in and cancel their subscriptions (see here (in Chinese and translated in English)) and the last one tells current Beijing News workers to walk out of their jobs as a moral imperative (see here (in Chinese and translated in English)).  Which part of the Code of Conduct is being violated?  And what national law(s) was(were) broken?  I would like an explanation about that decision.  I can't see it.  If MSN Spaces has some other ideas, then they ought to tell us so we know where the real redline is, according to the beliefs of their employees.

According to the Chinese national constitution, under "Fundamental Rights and Duties of Citizens":

Article 35. Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

Article 41. Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary; but fabrication or distortion of facts with the intention of libel or frame-up is prohibited. In case of complaints, charges or exposures made by citizens, the state organ concerned must deal with them in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them. Citizens who have suffered losses through infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with the law.

I am not the only one who wants to know, as the MSN Spaces blogger at The Line One (第一排) had the following correspondence exchange with MSN Spaces:

(in translation)

I have previously reported two instances of abuse on MSN Spaces sites and they were appropriately dealt with.  I thank you.  But today I want to complain about a blog that I read every day and which had no abusive conduct.  More than 600 people subscribe to it on bloglines and the author is the renowned media person Anti, who was a judge in this year's world blog competition.  Why did you shut down his blog?  Please give a reason to an ordinary user who has always supported Microsoft and your work.  Is there no freedom of speech in China?  I await your response, thanks.

Dear Respected User, how are you?  We thank you for your letter to the MSN Spaces Technical Support Center concerning abuse.  We are sorry, but this Space touched upon political factors and we had to close it down.  We are deeply sorry to have caused you any inconvenience.  Regards, Cai Lingyan (蔡凌燕), MSN Spaces Technical Support Center.

Touched upon politics?  Which rule of conduct of MSN Spaces did that break?  I went through the Code of Conduct and I could not find it.  Thanks.

Dear Respected User, how are you?  We thank you for your letter to the MSN Spaces Technical Support Center concerning abuse.  Concerning your question, we need more time to make additional assessment and study.  Although we are unable to give you an exact time about when the problem will be solved, we ask you to trust that we are trying our best to solve that problem.  We are sorry that we cannot provide an immediate answer, but we will try our best to solve that problem for you as quickly as possible.  Regards, Cai Lingyan (蔡凌燕), MSN Spaces Technical Support Center.

Related Links: 

• Chinese anti-MSN protest  Rebecca MacKinnon, RConversation
• Microsoft: keeping state secrets secure  Chris Myrick, AsiaPundit
• Microsoft obeyed Chinese law? Or was it just a political request? Should the difference matter?  Rebecca MacKinnon, RConversation
• Congress to grill US net firms on China  Imagethief