Xiaoning et al v. Yahoo! Inc, et al

Filing 38

PROPOSED AMENDED COMPLAINT Second Amended Complaint for Tort Damages against all defendants. Filed byWang Xiaoning, Shi Tao, Yu Ling. (Myers, Roger) (Filed on 7/13/2007) Modified on 7/16/2007 (cp, COURT STAFF).

Xiaoning et al v. Yahoo! Inc, et al

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Morton H. Sklar, Executive Director [e-mail] World Organization for Human Rights USA 2029 P Street NW, Suite 301 Washington, DC 20036 Telephone: [phone] Facsimile: [phone] [Admitted Pro Hac Vice] Roger Myers (CA State Bar No. 146164) [e-mail] HOLME ROBERTS & OWEN LLP 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs [Additional Counsel Appear on Signature Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WANG XIAONING, YU LING, SHI TAO, and ADDITIONAL PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUALS, Plaintiffs, v. YAHOO! INC., a Delaware Corporation, YAHOO! HONG KONG, LTD., a Foreign Subsidiary of Yahoo!, ALIBABA.COM INC., a Delaware Corporation AND OTHER PRESENTLY UNNAMED AND TO BE IDENTIFIED CORPORATE DEFENDANTS AND UNNAMED AND TO BE IDENTIFIED INDIVIDUAL EMPLOYEES OF SAID CORPORATIONS, Defendants. SECOND AMENDED COMPLAINT FOR TORT DAMAGES JURY TRIAL DEMANDED CASE NO. C07-02151 CW

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SECOND AMENDED COMPLAINT Plaintiffs, by and through their attorneys, allege upon personal knowledge and belief as to their own circumstances, and upon information and belief (based on the investigation of counsel) as to all other matters, that substantial evidentiary support exists or will exist after a reasonable opportunity for further investigation and discovery as a result of trial proceedings, in support of the following: 1. Named Plaintiffs and additional unnamed and to be identified Plaintiffs (hereinafter

referred to collectively as "Plaintiffs") have been and are being subjected to grave violations of some of the most universally recognized standards of international law, including prohibitions against torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor, for exercising their rights of freedom of speech, association, and assembly, at the hands of Defendants through Chinese officials acting under color of law in the People's Republic of China (referred to herein as "the PRC" or "China"). 2. To commit these violations of specific, universal, and obligatory standards of

international law, Defendants willingly provided Chinese officials with access to private e-mail records, copies of email messages, e-mail addresses, user ID numbers, and other identifying information about the Plaintiffs and the nature and content of their use of electronic communications. This information, available only to the Defendants, was voluntarily provided to Chinese officials by Defendant Yahoo! Inc. and its agents, alter egos, and/or other affiliated entities, including but not limited to wholly-owned subsidiaries Yahoo! HK and Yahoo! China. In addition, there are positive indicators that Defendant Alibaba.com, as well as various subsidiaries and affiliates of Yahoo! Inc., have also, under the control and supervision of Defendant Yahoo Inc., continued to provide PRC officials with this information for various unnamed and to be identified Plaintiffs after Alibaba.com Inc. acquired control over Yahoo! China in October 2005. These disclosures served and are continuing to serve as the basis for the acts of persecution and torture that occurred and are occurring as a direct result of the Defendants' activities. By providing internet user identification information to the PRC, Defendants knowingly and willfully aided and abetted in the

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commission of torture and other major abuses violating international law that caused Plaintiffs' severe physical and mental pain and suffering. 3. Plaintiffs' claims are actionable under the Alien Tort Statute (ATS), 28 U.S.C. §

1350, and the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, because their injuries resulted from violations of specific, universal, and obligatory standards of international law as embodied in a number of treaty obligations binding on the United States and implemented domestically here in the United States by a number of statutes including the TVPA. 4. Defendants' conduct also violates California state laws, including prohibitions against

battery, false imprisonment, assault, intentional infliction of emotional distress, negligence, negligent supervision, and the California Business & Professions Code § 17200. 5. Defendants' conduct also breaches United States law under the Electronic

Communications Privacy Act by exceeding their authorization to access and control highly private and potentially damaging information concerning Plaintiffs' electronic communications, in violation of 18 U.S.C. § 2701, by unlawfully and knowingly divulging Plaintiffs' electronic communication contents and user information, in violation of 18 U.S.C. § 2702, and by intentionally acquiring and/or intercepting the contents of electronic communications sent by and/or received by Plaintiffs through their use of computers, routing equipment and other electronic devices which were part of, and utilized in, Defendants' electronic communications systems, in violation of 18 U.S.C. § 2511. 6. Plaintiffs seek general, compensatory, and punitive damages for their injuries, as well

as declaratory and injunctive relief to hold Defendants accountable for their unlawful actions, and to secure the Defendants' assistance in obtaining the Plaintiffs' release from prison. Plaintiffs also seek relief that would prevent them from similarly harming others in the future.

JURISDICTION AND VENUE 7. This Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. § 1331 (federal

question jurisdiction), 28 U.S.C. § 1350 (Alien Tort Statute) and 28 U.S.C. § 1350 (Torture Victim Protection Act). The Alien Tort Statute provides federal jurisdiction for "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The
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Torture Victim Protection Act supplements and confirms the ATS by providing federal court jurisdiction for acts of torture, as defined by 28 U.S.C. § 1350. The Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., provides federal jurisdiction for civil claims arising from unauthorized disclosure of electronic communications and customer information. 8. This Court also has supplemental jurisdiction over claims arising from violations of

state law because, pursuant to 28 U.S.C. § 1367, the facts in the claims arising from state law are so related to the Plaintiffs' claims under federal laws that they form part of the same case or controversy under Article III of the United States Constitution.

INTRADISTRICT ASSIGNMENT 9. Assignment and venue in the San Francisco/Oakland Division is proper pursuant to

Local Rule 3-2(c) and (d) because Defendants Yahoo! Inc. and Alibaba.com Inc. are located in, do business in, and/or have major business contacts with this district and division. Other named and unnamed Defendants are similarly subject to the jurisdiction of this court by virtue of their corporate ties and/or business contacts and activities in this jurisdiction.

PARTIES Plaintiffs 10. Plaintiff Wang Xiaoning is a subject, citizen, and resident of the People's Republic

of China. He sues on behalf of himself for the injuries, including severe pain and suffering, he has endured as a result of his torture, cruel, inhuman, or other degrading treatment, and arbitrary arrest and prolonged detention inflicted upon him as a result of the Defendants' actions aiding and abetting Chinese government officials in committing these major human rights abuses. Specifically, Wang Xiaoning was arrested and unlawfully and arbitrarily detained and prosecuted for publishing and circulating through the Internet electronic journals and articles that supported democratic reform in China and for communicating with other democracy advocates. He also sues for compensation for property seized by government officials in conjunction with his arbitrary arrest and prolonged detention. He is serving a ten-year sentence at Beijing Municipal No. 2 Prison, a forced labor prison
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for political prisoners, under severe conditions of prolonged confinement that are highly abusive in nature. He has served almost four years of his ten-year sentence, and has been imprisoned for almost five years. 11. Plaintiff Yu Ling is a subject, citizen, and resident of the People's Republic of China,

and is the wife of 27 years of Plaintiff Wang Xiaoning. She sues on behalf of herself for the injuries, including pain and suffering, she has endured as a result of her husband's torture, cruel, inhuman, or other degrading treatment, and arbitrary arrest and prolonged detention inflicted upon him as a result of the Defendants' actions aiding and abetting Chinese government officials in committing these major human rights abuses. Specifically, as a result of her husband's unlawful and arbitrary arrest and detention, Yu Ling has suffered extreme emotional distress and financial hardship. She also sues for compensation for property seized by government officials in conjunction with her husband's arbitrary arrest and prolonged detention. 12. Plaintiff Shi Tao is a subject, citizen, and resident of the People's Republic of China.

He sues on behalf of himself for his injuries, including severe pain and suffering, resulting from torture, cruel, unusual, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor that were inflicted upon him as a result of the Defendants' actions in making possible, and aiding and abetting Chinese government officials in committing, these major human rights abuses. Specifically, Plaintiff Shi Tao was arrested and unlawfully and arbitrarily detained and prosecuted for emailing messages, notes and journalistic dispatches describing government restrictions on journalists imposed in connection with the 15th anniversary of the Tiananmen Square crackdown on democracy advocates. He also sues for compensation for property seized by government officials in conjunction with his arbitrary arrest and prolonged detention. He currently is serving the third year of a ten-year sentence for "divulging state secrets abroad" at Chishan Prison of Hunan Province, a high-security prison with a documented system of forced labor and torture, and has been in detention for almost four years. 13. Additional Plaintiffs temporarily designated as "Presently Unnamed and To Be

Identified Plaintiffs" are citizens of China currently living in China or in exile in other countries, such as the United States, who were arbitrarily detained, arrested, tortured, subjected to cruel,
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inhuman, or degrading treatment or punishment, and/or subjected to forced labor, as a result of Defendants' actions in aiding and abetting these violations of United States and international law, including federal and state laws that provide civil actions for Defendants' acts. At the time of filing, Plaintiffs and their attorneys have identified at least 60 individuals arbitrarily imprisoned in China for expressing their support for free elections, democracy, or human rights through Internet communications or use, whose arrests and detention, based on information currently available through reliable sources including the United States Department of State may be linked to actions by the Defendants that revealed their Internet and electronic communication identifying information to PRC officials. Additional information about their arrests and detention, and their treatment in detention, for these unnamed individuals, as well as information about how the Defendants may be responsible for their abuse, will be obtained during discovery and described in greater detail during these proceedings. Their inclusion in this lawsuit is critical both in order to identify the extent of the Defendants' role in enabling these abuses, as well as to curb, prevent and remedy current corporate practices of the Defendants that are directly responsible for these abuses. Such Plaintiffs may also include others located outside of China who have been or are currently being adversely affected by the Defendants' practices. Defendants 14. Defendant Yahoo! Inc. is incorporated in Delaware. Its principal place of business

has been located in California since 1994. Its corporate headquarters are in Sunnyvale, California, in Santa Clara County. Yahoo! Inc. operates a business concerned primarily with facilitating the distribution of and access to electronic communication and information. The company's major activities include supplying and operating Internet service, web-based personal e-mail accounts, news portals, and a search engine, all designed to facilitate electronic communication and the sharing of information. By the nature of its activities, Yahoo! has access to and maintains identifying information about individuals using its electronic services. 15. Yahoo! Inc. is the parent company and ultimate owner of the entire issued share

capital of Yahoo! Hong Kong Limited. During the incidents related to the arrest and detention of plaintiffs Wang Xiaoning and Shi Tao, Yahoo! Inc. exercised significant control over Yahoo! China.
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It did so via its organizational relationship with Yahoo! Hong Kong Limited (formerly Yahoo! Holdings (Hong Kong) Limited), which was the parent company of Yahoo! China. In addition, Yahoo! Inc. exercised functional control and supervision over important aspects of the operations of Yahoo! China. This included supervision and control of policy and legal decisions made by Yahoo! China's Legal Team, including issues and activities relevant to the subject of this complaint, where the Yahoo! China legal team reported directly to and took direction from the legal team of Yahoo! Inc. Given both Yahoo! Inc.'s ownership and supervision of Yahoo! Hong Kong Limited and their relationship to the legal team of Yahoo! China, Yahoo! Inc. was uniquely positioned to review and approve the specific practices and policies that led to the arbitrary arrest, arbitrary detention and torture of the Plaintiffs Wang and Shi as outlined in this complaint. Prior to October 2005 and at the time of the allegations made in this petition relating to Plaintiffs Wang, Shi and Yu, there was a unity of ownership and positive indicators of a unity of interest between the personality of Yahoo! Hong Kong Limited (formerly Yahoo! Holdings Hong Kong Limited) and the personality of Yahoo! Inc. 16. Yahoo! Inc. has supervised the business operations of Yahoo! in China under the

name Yahoo! China since 1999. Yahoo! Inc. has conducted business in China directly, through its wholly-owned subsidiary Yahoo! HK, its former strategic partner Alibaba.com, and, since December 19, 2006, primarily through Alibaba.com's successor in this strategic partnership, Alibaba.com Group Services Limited. In addition to directly owning and controlling the operations of Yahoo! Hong Kong (and therefore Yahoo! operations in China) from the period prior to 2002 until the organizational changes that were made in 2005, Yahoo! Inc. has consistently exercised the function of controlling the organizational structures dictating the management and operation of Yahoo! activities in China. For example, it was Yahoo! Inc., and not Yahoo! China itself, that was the contractual party involved in transferring ownership of Yahoo! China to Alibaba.com. For Yahoo! Inc. to have controlled these organizational and structural decisions, they had to be functionally in charge of the decision making process with respect to China operations. 17. Prior to October 2005, operational, management, strategic, and business decisions for

Yahoo! China were made under the direction from Yahoo! Inc. or its appointed international
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operations management team. Even following the change in ownership of Yahoo! China in October 2005, Yahoo! Inc. can still be held responsible for similar ongoing abuses, as it has continued to exercise substantial control and oversight of Yahoo! China, "caus[ing] each member of the China Group to...carry on the China Business in, and only in, the Ordinary Course of Business, in substantially the same manner" as conducted prior to the change in ownership, including the maintenance of "all Governmental Approvals and other Consents necessary for, or otherwise material to, the China Business." (Stock Purchase and Contribution Agreement by and between Yahoo! Inc. and Alibaba.com Corporation, Dated as of August 10, 2005). 18. Matters related to the specific personal information disclosures of Plaintiffs Wang,

Shi and other unnamed Plaintiffs within that time period were handled locally by the legal team of Yahoo! China which reported directly to the legal team of Yahoo! Inc. This line of authority and accountability indicates that although Yahoo! China was legally owned by Yahoo HK at the time of the disclosures, it was managed and controlled actually and ultimately by Yahoo! Inc. According to testimony provided to Congress by the General Counsel of Yahoo! Inc., the decision to disclose internet user information by Yahoo! China may have been directly reviewed and approved by Yahoo! Inc. 19. Defendant Yahoo! Hong Kong Ltd. (formerly known as Yahoo! Holdings (Hong

Kong), Ltd.) (Yahoo! HK), is a wholly owned subsidiary of Yahoo! Inc. based in Hong Kong. Prior to a change in ownership and corporate structure on October 24, 2005, and during the incidents in question for the named Plaintiffs, Yahoo! HK was the business entity, partner, alter ego and/or agent of Yahoo! Inc. responsible for operating and managing Yahoo! China, subject to the control and supervision of Defendant Yahoo! Inc. Through its wholly owned subsidiary, Beijing Yahoo! Consulting and Service Company Limited (Beijing Yahoo!), and the Technical Services Agreement that existed between Peking University Founder Group (PUFG) and Beijing Yahoo!, Yahoo! HK controlled and operated Yahoo! China, maintaining the ability throughout the period in question to appoint and replace all members of the board of directors of Beijing Yahoo!. This organizational structure of ownership and control of Yahoo! China operations by Yahoo! HK remained intact until Yahoo! Inc. formed a strategic partnership with Defendant Alibaba.com Inc. (Alibaba.com) in
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October 2005, transferring major portions of its responsibilities for China operations to Alibaba.com. In December 2006, Alibaba.com underwent its own corporate restructuring and, upon best information and belief, the strategic partnership controlling China operations was transferred at that point from Alibaba.com to Alibaba.com Group Services Ltd. (Alibaba Group). 20. Yahoo! Hong Kong's connection to and responsibility for the abuses set out in this

complaint during the period when it exercised control over China operations are indicated by the use of the Yahoo! Hong Kong seal on the documents sent to PRC officials providing them with private internet user information, and by various indices of its ownership and control of Yahoo! China operations at the time of the events in question. 21. Defendant Alibaba.com, Inc. (Alibaba.com) is a Chinese company engaged in

electronic commerce and communications, operating the world's largest online marketplaces for both international and Chinese trade. Alibaba.com is incorporated in Delaware and conducts its U.S. business from offices in Santa Clara and Newark, California. On October 24, 2005 Alibaba.com became the owner and operator of Yahoo! China through a Stock Purchase and Contribution Agreement with Yahoo! Inc., whereby Yahoo! Inc received 46 percent (40 percent on a fully diluted basis) of the outstanding common stock of Alibaba.com in exchange for $1.0 billion in cash and what is described in the aforementioned agreement as the contribution (transfer) of Yahoo! China to Alibaba.com. On December 19, 2006 Alibaba.com was subject to a corporate reorganization. As a result of this restructuring, Alibaba.com relinquished its ownership of Yahoo! China to Alibaba.com Group Services Limited. Alibaba.com presently operates as a wholly owned subsidiary of Alibaba Group. 22. Upon best information and belief, Alibaba.com may have acquired liability for

Yahoo! China's previous actions based on its purchase and control of Yahoo! China in October 2005 and further may be liable for disclosures made by Yahoo! China during the period of its ownership of that entity between October, 2005 and December, 2006. It may also be liable for disclosures and abuses subsequent to its transfer of Yahoo! China to Alibaba.com Group Services Limited due to its continued affiliation and connection with the operations of Yahoo! China through Alibaba.com Group Services Limited, of which it is a part.
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23.

The additional, presently Unnamed and To Be Identified Corporate Defendants

listed in the caption heading of this case are presently unnamed and to be identified corporate entities that contributed to or aided and abetted the violations of international law suffered by Plaintiffs as set out in this complaint, either directly or indirectly via their corporate ties. Additional information about these unnamed entities will be obtained during discovery, allowing the Parties to ascertain the exact nature and extent of the relationships between these unnamed entities and the already identified Defendants. Identifying information about them and the role they played in the abuses will be identified and described in greater detail during the course of these proceedings. 24. The additional, presently Unnamed Individual Defendants listed in the caption

heading of this case are presently unnamed and to be identified employees of the Defendant companies, and/or other persons whose individual actions contributed to or aided and abetted the violations of international law suffered by Plaintiffs as set out in this complaint. Identifying information about them and the role they played in the abuses are expected to be identified and described in greater detail during these proceedings.

STATEMENT OF FACTS General Facts 25. Journalists, human rights advocates, democracy supporters and other Internet users in

China have been subjected to a pattern of arbitrary criminal prosecution, imprisonment, and torture as a result of their expression of ideas that are perceived to be in opposition to the positions or policies of the government of the PRC on a variety of politically disfavored topics, such as the Tiananmen Square massacre, democratic reform, human rights advocacy, opposition to corruption or disagreement with government policies generally. As a result of the expression of their views, these "dissidents" are subjected to arbitrary arrest, criminal prosecution, and persecution in violation of numerous protections for fundamental rights involving the exercise of freedom of expression, association, press and assembly under the Chinese Constitution and international law. 26. Since the arrival of electronic communications and the Internet in China, official

controls have been imposed to monitor and censor electronic communications on a widespread basis,
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in order to keep track of the access and use of Internet information sources, including expression and communication related to what are considered certain politically sensitive topics, such as democracy support and human rights. As a result, "dissident" journalists, human rights activists, and other Internet users' personal communications and activities are carefully censored and monitored. 27. Once these "dissidents" are identified and targeted through the Internet monitoring

and censorship program, they face a well documented pattern of systematic arbitrary arrest and prolonged detention, incommunicado detention, extrajudicial killings, torture, cruel, inhuman or degrading treatment and punishment, and forced labor. Sometimes, these abuses lead to death in custody. Despite Chinese laws prohibiting these violations of both domestic law and international human rights standards, authorities carry out these abuses under color of law within a culture of impunity. 28. In or around the Spring of 2002, Yahoo! Inc. signed an official, voluntary agreement

that had the effect of directly involving Yahoo! in the censoring and monitoring of on-line content and communication by its Chinese users. Alibaba.com has also signed this voluntary agreement. This agreement was in the form of the Internet Society of China's "Public Pledge on Self-Discipline for the Chinese Internet Industry" (referred to herein as "the Public Pledge"). The Internet Society of China is a government-affiliated professional organization, and the Public Pledge is described as being voluntary, not required by government regulation, although pressures to sign the Pledge and to abide by its requirements as a prerequisite for doing business in China are considerable. By signing the Public Pledge, Yahoo! Inc. voluntarily agreed to help monitor and censor electronic communication use involving information that, according to the Internet Society of China, could "jeopardize state security" or "disrupt social stability," and to report any offending on-line expression or communication to PRC authorities. 29. A number of human rights organizations responded to news of the Defendants signing

this pledge by alerting Defendants that by helping the censors, and by identifying people who could be accused of anti-government speech or communication, the Defendants would be placing many innocent individuals, who were merely expressing their views or communicating with others, at risk of arbitrary arrest, prolonged arbitrary detention, forced labor, and torture as a result of their lawful
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exercise of free speech and free association rights. For example, on July 30, 2002, Human Rights Watch sent a letter to Yahoo! Inc. Chairman and Chief Executive Officer Terry Semel, expressing concern that Yahoo! Inc. signed the Public Pledge, and alerting Yahoo! Inc. of the dangers to Internet users associated with their company's cooperation with monitoring and censoring efforts. This letter notified Yahoo! Inc. that it was common in China for people to be arbitrarily arrested for expressing disfavored views. The letter pointed out that "In China ... any public expression of views that differ from those of the state, and provision of information not deemed politically acceptable, may be considered `harmful' and may result in a prison sentence," mistreatment, torture, and execution. The letter also stated that, by upholding the Public Pledge, Defendants would risk assisting such human rights violations, clearly pointing out that "there is a strong likelihood that Yahoo will assist in furthering such human rights violations" through support of these monitoring and censorship activities. The letter urged Yahoo! Inc. to withdraw from the Public Pledge and to state its support for internationally recognized standards of free expression. Human Rights Watch also sent copies of this letter to Jerry Yang, Co-Founder and Director of Yahoo! Inc., Chris Castro, Chief Communications Officer and Senior Vice President of Yahoo! Inc., John Costello, Chief Global Marketing Officer of Yahoo! Inc., and Jon Sobel, Vice President, General Counsel, and Secretary of Yahoo! Inc. 30. A subsequent 2002 Amnesty International report also provided Defendants notice that

the Defendants' involvement in the monitoring and censorship program presented a grave risk to Internet users, and subjected them to arbitrary detention and torture. On November 26, 2002, Amnesty International published "State Control of the Internet in China," documenting Chinese officials' use of electronic evidence to prosecute Chinese democracy advocates for exercising their freedom of expression over the Internet. This report, as well as the numerous press releases and news articles publicizing it, noted that Yahoo! Inc. had signed the Public Pledge and pointed out that compliance with the pledge could lead to violations of international human rights norms. Furthermore, the report documented that 21 prisoners in China had already suffered arbitrary arrest and prolonged arbitrary detention, torture, and death in custody as punishment for the "crime" of

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using the Internet to exercise their right to freedom of expression, and to communicate and obtain information concerning human rights or democracy. 31. Particularly in light of these notifications, along with general and well-publicized

documentation of Chinese human rights abuses, including those in the U.S. Department of State Country Reports on human rights abuses dealing with China, and all other nations' human rights practices, Defendants had every reason to know and understand that the electronic communication user information they provided to authorities could well be used to assist in the infliction of such abuses as arbitrary arrest, torture, cruel, inhuman, or other degrading treatment, and prolonged detention and/or forced labor, to punish what might be viewed by authorities as pro-democracy or human rights activities. Despite this knowledge and understanding, Defendants turned over specific identifying information about the Plaintiffs and their electronic communications to officials who used this information as a basis for arbitrarily arresting, detaining, and torturing the Plaintiffs. There are positive indications that this policy of disclosure continues to the present day, and has affected a large number of the presently unnamed and to be identified Plaintiffs, in addition to the named Plaintiffs. 32. While in custody, Plaintiffs were subjected to torture, cruel, inhuman or degrading

treatment, forced labor, and arbitrary, prolonged and indefinite detention, for expressing their free speech rights and for using the Internet to communicate about democracy and human rights matters. 33. Defendants greatly benefited from these violations of the Plaintiffs' fundamental

human rights through their continued and expanded conduct of business in the PRC, the secondlargest Internet market in the world with at least 110 million users. Defendants provided identifying information about the Plaintiffs, in violation of the privacy agreements and assurances made to the Defendants' customers and users, that led to their arbitrary arrest, indefinite detention and torture, in order to obtain the approval and support of PRC officials and their agreement to allow them to continue conducting and expanding the Defendants' business interests in the PRC.

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Specific Facts Wang Xiaoning From 2000 to 2001, Wang Xiaoning edited Free Forum of Political Reform, and from

2001 to 2002, he edited Commentaries on Current Political Affairs, electronic journals containing articles written by Wang and others calling for democratic reform and a multi-party system in China. 35. During this same time period, Wang posted additional pro-democracy articles on

websites in China and abroad. From 2000 to 2001, Wang Xiaoning published his journals and articles on an e-mail subscriber list, "aaabbbccc" Yahoo! Group. 36. In 2001, administrators noticed the political content of Wang's writings and blocked

him from sending messages to the "aaabbbccc" Yahoo! Group. 37. With this means of dissemination blocked to him, Wang Xiaoning continued to

publish his writings by electronically sending his journal on an anonymous basis to individual e-mail addresses until he was arbitrarily detained in 2002. 38. Yahoo! HK provided identifying information to police, linking Wang Xiaoning to his

anonymous e-mails and other pro-democracy Internet communications. 39. On September 1, 2002, approximately ten security police raided Wang Xiaoning's

home and arbitrarily detained Wang Xiaoning without informing him or his family of the charges against him. On the same day, police searched his home and seized two computers, personal computer files, e-mail records, written notes, address books, and manuscripts. 40. 30, 2002. 41. From September 1, 2002 to May 2004, Wang was held at the Detention Center of Wang was not formally arrested and charged until almost a month later, on September

Beijing State Security Bureau, where he suffered severe abuse at the hands of the prison officials. The officials kicked and beat Wang repeatedly to force him to confess to having engaged in "antistate" activities and to turn over the names of other persons with whom he had communicated. Prison guards commanded and instructed other prisoners to use psychological tactics against Wang to break his resolve so that he would confess, and also as punishment for his writings. During the more than twenty months that he was arbitrarily detained at the Detention Center, Wang was often
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barred from going outside. These abuses had severe physical and psychological effects on Wang. When his wife was finally able to see him approximately six months after his arbitrary and unlawful detention, Wang was very weak, showed no emotional expression, and exhibited severe respiratory difficulties. 42. On July 25, 2003, the Beijing Municipal First Intermediary People's Court tried

Wang Xiaoning on charges of "incitement to subvert state power," advocating the establishment of an alternative political party, and communicating with an overseas organization the Chinese government considers "hostile." 43. On September 12, 2003, after almost thirteen months of arbitrary detention, the court

sentenced Wang to ten years in prison and two additional years of deprivation of political rights. 44. The court specifically relied on evidence supplied by Defendants to identify and

convict Wang Xiaoning. The judgment noted that Yahoo! HK informed investigators that a mainland China-based e-mail account ([e-mail]) was used to set up Wang Xiaoning's "aaabbbccc" Yahoo! Group, and that the e-mail address [e-mail], which Wang Xiaoning used to post e-mails to that Yahoo! Group, was also a mainland China-based account maintained by Wang Xiaoning. Defendants were cited in the court decision as instrumental in causing the Plaintiff's arrest and criminal prosecution. 45. Additional evidence cited by the judgment included the following pro-democracy,

non-violent statements attributed to Wang Xiaoning as having appeared in his electronic communications: "Without the multi-party system, free elections and separation of powers, all types of political reform will come to nothing."

"We should never forget that China is still a totalitarian and despotic country."

"The Four Basic Principles [of Chinese Communist government] are the biggest obstacle to the establishment of the democratic system [in China]."

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"In today's China, the workers and peasants are pressed under the lowest level of society. Thousands upon thousands of workers lost their job and many peasant workers are bitterly oppressed and exploited. However, they have no right to go on strike, no freedom to organize their own union and cannot find anything by which to secure their basic rights."

"The main reason that the Chinese Communist Party has been able to retain power in spite of being so corrupt is that China does not yet have a party that can replace the Communist Party." 46. In May 2004, authorities transferred Wang to the Beijing Prison No. 2. Upon his

transfer, authorities warned Wang Xiaoning that if he appealed the judgment against him, he would be denied any opportunity for parole, reduction of sentence for good behavior, or other privileges. Despite these warnings, Wang Xiaoning filed his appeal with the Supreme People's Court, citing that his arrest and conviction for free expression of his opinions was illegal under Chinese and international law. Rejecting these arguments, the court denied his appeal on December 22, 2004. Through his wife, Yu Ling, Wang Xiaoning appealed his case again, but the courts rejected his application for appeal on July 1, 2006. 47. Wang Xiaoning has continued to suffer severe physical, psychological, and emotional

abuse as a result of the court's decision that his writings and beliefs were subversive. Beijing Municipal No. 2 Prison, where Wang is unlawfully incarcerated, is a secretive, high-security forced labor prison where serious and "special control" prisoners are held, particularly political prisoners. Wang has been subjected to a severe form of treatment in this prison. He is held in a cell with nine other inmates and subjected to malnourishment. The prison guards deny Wang any access to recreation or even sunlight for weeks and even months at a time, even though the standard at the prison is to allow prisoners outside once a day. Prison officials refused to allow Wang to see his mother before her death in September 2005. Wang's access to family members is strictly limited, with his wife allowed to see him at most for only one half hour per month. Prison officials scrutinize

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all written correspondence to and from Wang, severely limiting his ability to communicate with anyone outside the prison, including his wife. Yu Ling 48. Yu Ling and her family have endured severe psychological and emotional suffering

as a direct result of the arbitrary detention of her husband on September 1, 2002. She and her family have suffered from the loss of Wang's presence and the lack of information about his location, the charges against him, his treatment, and his well-being. 49. Yu Ling was present on September 1, 2002, when security police raided the house she

shared with her husband, Wang Xiaoning. Some of the property that security police seized that day ­ including one of the computers ­ was Yu Ling's property. 50. Since Wang Xiaoning was illegally detained, Yu Ling has been subjected to

continued police surveillance, which caused her to fear for her own safety and personal security. She feared that the police would arbitrarily arrest her and subject her to physical abuse like her husband. These fears were reinforced by the actions of her family and friends, who no longer contacted her out of their own fears for their personal safety and respectability, and also because the police required people coming to visit her to register their names. Because of the surveillance and out of sincere concern for herself and her family, friends, and neighbors, Yu Ling isolated herself and took extra care not to raise the suspicions of the officials toward her or her family and friends. Yu Ling has suffered from extreme depression and guilt over these events. 51. The arbitrary detention of her husband Wang Xiaoning placed Yu Ling in an

extremely embarrassing position with her family. Due to the implications of his arrest, the danger it could cause to her family, and the heightened importance of appearance and status in China, Yu Ling kept the truth of Wang's arbitrary detention from her immediate family. At her mother's funeral, Yu Ling's siblings confronted her and accused her husband of being a bad man for not attending the funeral. In the midst of her extreme grief over the passing of her mother, Yu Ling had to tell her brothers and sisters the truth that her husband Wang could not attend because he was in prison. 52. These psychological and emotional injuries have caused Yu Ling physical injury.

She cannot eat or sleep due to the emotional distress caused by her husband's absence, has lost a
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substantial amount of weight, and is consumed by the plight of her husband, and by her efforts to assist him. 53. Since the arbitrary detention of her husband Wang Xiaoning on September 1, 2002,

Yu Ling has had to devote many hours to her husband's defense. This has taken her away from work, resulting in lost income. She has also had to pay several attorneys a substantial amount of money to defend her husband. Yu and her family have also suffered financially from the loss of Wang Xiaoning's income. Her son has attempted to replace his father's lost salary but a company that offered him work terminated the contract when it learned of Wang Xiaoning's conviction. Shi Tao 54. From February 2002 to May 2004, Shi Tao worked as a reporter and head of the

Editorial Department for Contemporary Business News (Dangdai Shangbao) in Changsha, Hunan Province, China. From May 2004 until his arbitrary arrest and prolonged arbitrary detention on November 23, 2004, Shi Tao worked as a freelance journalist, in Taiyuan, Shanxi Province, China. 55. As a reporter, Shi Tao wrote about corruption by government officials in China. As a

freelance writer, he published numerous political commentaries calling for democratic reform of the Chinese government, as well as several books of poetry. 56. In April 2004, Shi Tao published an essay, "The Most Disgusting Day," that criticized

the Chinese government for detaining an activist member of the Tiananmen Mothers, an organization of mothers whose children were killed by the Chinese government in its 1989 crackdown on the internal democracy movement and demonstrators in Tiananmen Square. Tao published the essay under a pseudonym on an Internet forum. 57. On April 20, 2004, at a staff meeting at the offices of the publication Contemporary

Business News, Shi Tao was advised of a document sent by the CCP's Central Propaganda Bureau, alerting journalists to the security concerns and government preparations in anticipation of the upcoming 15th anniversary of the 1989 Tiananmen Square massacre. Later that night, Shi Tao sent his notes from this staff meeting, under an alias, to the New York-based Web site Democracy Forum (Minzhu Tongxun), using his personal Yahoo! e-mail account.

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58.

Between April 20, 2004 and November 23, 2004, Yahoo! HK gave Chinese officials

and investigators information linking Shi Tao to the anonymous email he sent to Democracy Forum, including the account holder information for the email address, the IP address and physical address of the computer from which the email was sent, and the date and time the email was sent and its contents. Defendants also supplied to the prosecuting officials the physical address of the office where the offending electronic communication took place, thereby linking the anonymous email message to Shi Tao. 59. On November 23, 2004, Shi Tao was detained mid-day in a street near his home in

Taiyuan, Shanxi Province. As he was walking on the street, several people suddenly accosted and kidnapped him, placed a hood over his head and transported him thousands of miles away to Changsha, Hunan Province. His house was subsequently searched and police seized his computer, papers, and other property without a warrant. 60. After 21 days of detention, Shi Tao was formally arrested and charged on December

14, 2004, but the charges were not made public. 61. Up to and during his trial, Shi Tao was held at Changsha Detention Center, where

officials are known to physically abuse and torture detainees on a regular basis. Survivors of the prison describe being handcuffed and shackled for weeks at a time and chained to a door plank. Officials typically prohibit visits from family members as they believe isolation contributes to a more rapid reeducation of the detainee and a repudiation of their "unlawful" conduct. 62. On February 24, 2005, Chinese authorities revoked the credentials of Shi Tao's

defense attorney for representing activists accused of "adopting positions and making statements contrary to the law and the Constitution" and "defiling and slandering the Communist Party and government." On March 4, 2005, seven days before Shi Tao's trial, authorities placed his defense attorney under house arrest, presumably for the "crime" of properly defending his client. 63. On March 11, 2005, the Changsha Municipal Intermediate People's Court in Hunan

Province tried Shi Tao in a closed hearing. To no one's surprise, given what had happened to his prior attorney, Shi Tao's court-appointed replacement attorney entered a guilty plea on Shi Tao's behalf.
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64.

On April 30, 2005, the court sentenced Shi Tao to ten years imprisonment for

"illegally providing state secrets overseas." In its verdict, the court specifically made reference to and cited the Internet user information that Defendants had supplied to Chinese officials as evidence against Shi Tao: "Account holder information furnished by Yahoo! Holdings (Hong Kong) Ltd., which confirms that for IP address 218.76.8.201 at 11:32:17 p.m. on April 20, 2004, the corresponding user information was as follows: user telephone number 0731-4376362 located at the Contemporary Business News office in Hunan." 65. On May 4, 2005, Shi Tao appealed the judgment to the Hunan Province High

People's Court on the ground that because the police used items seized without a warrant, the evidence against him was illegal, and that because the information he provided to Democracy Forum was a reflection of public sentiment, he could not be accused of revealing a state secret. At the appellate court's hearing, the court refused to hear the arguments presented by Shi Tao's legal defense, failed to respond to the evidence presented by the defense, and closed the hearing to the public despite Chinese Criminal Procedure Law provisions that appeal hearings, even for state secrets cases, should be open to the public unless there are enumerated exceptional circumstances. The court denied Shi Tao's appeal on June 2, 2005. 66. On March 30, 2006, Shi Tao, through his legal representative, filed a formal

complaint with the Hong Kong Privacy Commissioner, requesting an investigation of the Defendants' actions divulging Shi Tao's private information. The Privacy Commissioner accepted the complaint and conducted an investigation. The Privacy Commissioner's report, made public on March 14, 2007, concluded that because Hong Kong's privacy ordinance only regulates the actions of companies in Hong Kong and in Shi Tao's case the information was disclosed in China to Chinese officials, his office did not have jurisdiction over the incident. 67. Since his appeal was denied in June 2005, Shi Tao has been incarcerated at Chishan

Prison of Hunan Province, Area 6, a high-security prison known for holding political prisoners and violent criminals serving long sentences. Shi Tao shares a cell with more than ten other inmates. His health and mental state have deteriorated sharply in the prison. He suffers from an ulcer and a
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heart ailment, as well as skin lesions induced by the prison's damp conditions. He has very little contact with people outside the prison. The prison officials monitor his written communications. 68. Chishan Prison uses a severe system of forced labor, in which prisoners work in dark,

dust-filled factories, starting before dawn and working for sixteen hours or more, in conditions intended to destroy their physical and mental capacities. Shi Tao has served as a forced laborer in these workshops. Detainees in this prison rarely see daylight. Former prisoners have reported that inmates are denied sleep and forced to labor for long hours under bright lights, which harm their vision and in some cases cause blindness and other disabilities. Prisoners convicted of violent crimes are placed in charge of the workshops to intimidate their fellow inmates. They are encouraged to target their attention and abuse on the political prisoners. Guards in Chishan Prison also abuse and torture the political prisoners with constant violence and intimidation. Survivors of the prison have described the systemic use of torture and other cruel, inhuman or degrading treatment or punishment by prison guards. Prisoners also are denied necessary medical care, a particularly important consideration for Shi Tao considering his ulcer, heart ailment, and skin lesions. 69. In addition to his physical and psychological injuries, Shi Tao has suffered extreme

emotional distress. He has even lost his family, since his wife divorced him in 2006. 70. In October 2005, the Committee to Protect Journalists named Shi Tao one of three

annual recipients of its International Press Freedom Award. Amnesty International has declared Shi Tao a prisoner of conscience as he was imprisoned solely for peacefully exercising his right to freedom of expression and opinion. The United States Department of State Country Report on Human Rights Practices in China for 2006, published March 6, 2007, names Shi Tao as a political prisoner, imprisoned for exercising the right to free expression.

CAUSES OF ACTION 71. Plaintiffs' causes of action arise under and violate the following laws, agreements,

conventions, resolutions, and treaties: (a) (b) Alien Tort Statute, 28 U.S.C. § 1350; Torture Victim Protection Act, 28 U.S.C. § 1350;
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(c)

Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987;

(d)

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976;

(e)

Universal Declaration of Human Rights (1948) G.A. res. 217A (III), U.N. Doc A/810 at 71;

(f)

Charter of the United Nations (1945), adopted June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153 (entered into force October 24, 1945);

(f)

International Labor Organization Convention No. 29 Concerning Forced or Compulsory Labor (1930), adopted June 28, 1930, 39 U.N.T.S. 55 (entered into force May 1, 1932).

(g)

The Electronic Communications Privacy Act, 18 U.S.C. § 2701, § 2702, and §2511; and

(h)

Statutes and common law of the State of California, including but not limited to assault and battery, false imprisonment, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and unfair business practices. FIRST CLAIM FOR RELIEF

(Torture, a Violation of International Law for Which the Alien Tort Statute and the Torture Victim Protection Act Provide Relief) (By Wang Xiaoning, Shi Tao and Other Plaintiffs Against All Defendants) 72. Plaintiffs re-allege and incorporate by reference the facts and allegations set forth in

paragraphs 1 through 47 and 54 through 70 of this Complaint as if fully set forth herein in this First Claim for Relief. 73. The Defendants' acts described in this Complaint caused direct and severe physical

and mental pain and suffering to the Plaintiffs and placed them at severe risk of personal injury and/or death in connection with their participation in, and support of, the peaceful exercise of their
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rights of free speech and communication, free association, and the right to hold, exercise and express their political beliefs. 74. Because Defendants' acts described herein violated multiple provisions prohibiting

torture on an absolute basis including: (1) treaties binding on the United States, (2) statutes adopted by the Congress of the United States implementing those treaty obligations, (3) international and domestic judicial decisions applying and interpreting the prohibition against cruel, inhuman, or degrading treatment or punishment, (4) administrative regulations and international and domestic judicial decisions applying and interpreting the prohibition against torture, and (5) a number of specific, universal, and obligatory standards that are recognized to be part of customary international law, these acts constitute "tort[s] ... committed in violation of the law of nations or a treaty of the United States" under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. 75. These acts also specifically constitute torture in violation of the Torture Victim

Protection Act (TVPA), 28 U.S.C. § 1350. 76. Defendants aided and abetted and/or ratified these acts of torture in violation of

international, federal, and state law. These violations and actions meet the definition of torture under the meaning of the TVPA, the ATS, and international treaties and U.S. laws and regulations, as well as customary international law, which condemn torture on an absolute basis, irrespective of the reasons why the abuses are inflicted. 77. The Plaintiffs are therefore entitled on this basis to compensatory and punitive

damages, in amounts to be established at trial, and to such other declaratory and/or injunctive relief as may be deemed appropriate. SECOND CLAIM FOR RELIEF (Cruel, Inhuman or Degrading Punishment or Treatment or Punishment, Violations of International Law for Which the Alien Tort Statute Provides Relief) (By Wang Xiaoning, Shi Tao and Other Plaintiffs Against All Defendants) 78. Plaintiffs re-allege and incorporate by reference the facts and allegations set forth in

paragraphs 1 through 47 and 54 through 70 of this Complaint as if fully set forth herein in this Second Claim for Relief.
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79.

These acts of cruel, inhuman, or degrading treatment or punishment suffered by the

Plaintiffs designated in this Second Claim for Relief, including physical injury and the severe physical and mental suffering associated therewith, were inflicted upon them by the joint and collusive actions of the Defendants and PRC government officials acting under color of law, through unlawful or unauthorized actions prohibited by international law. 80. These acts had the intent and the effect of grossly humiliating, debasing, intimidating,

and punishing the Plaintiffs, forcing them to act against their will and conscience, inciting fear and anguish, and seeking to break their physical and/or moral resistance. 81. These acts of cruel, inhuman, or degrading treatment or punishment were inflicted on

the Plaintiffs for purposes that include, among others, preventing them from exercising their free speech and free association rights, and punishing them for exercising their right to have and communicate political beliefs. 82. Because the acts described herein violated the prohibitions against cruel, inhuman, or

degrading punishment or treatment including: (1) treaties binding on the United States, (2) statutes adopted by the Congress of the United States implementing those treaty obligations, (3) international and domestic judicial decisions applying and interpreting the prohibition against cruel, inhuman, or degrading treatment or punishment, (4) administrative regulations and international and domestic judicial decisions applying and interpreting the prohibition against cruel, inhuman or degrading treatment or punishment, and (5) a number of specific, universal, and obligatory standards that are recognized to be part of customary international law, these acts constitute "tort[s] ... committed in violation of the law of nations or a treaty of the United States" under the Alien Tort Statute, 28 U.S.C. § 1350. 83. Defendants knowingly aided and abetted and/or ratified these abuses, and did not act

to prevent or punish these violations of human rights as embodied in international law. 84. Defendants are liable for aiding and abetting and/or ratification of the commission of

these abuses under this cause of action.

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85.

The Plaintiffs are therefore entitled on this basis to compensatory and punitive

damages in amounts to be established at trial, and to such other declaratory and/or injunctive relief as may be deemed appropriate. THIRD CLAIM FOR RELIEF (Arbitrary Arrest and Prolonged Detention, a Violation of International Law for Which the Alien Tort Statute and the Torture Victim Protection Act Provide Relief) (By Wang Xiaoning, Shi Tao and Other Plaintiffs Against All Defendants) 86. Plaintiffs re-allege and incorporate by reference the facts and allegations set forth in

paragraphs 1 through 47 and 54 through 70 of this Complaint as if fully set forth herein in this Third Claim for Relief. 87. These acts of arbitrary arrest and long-term detention suffered by the Plaintiffs

designated in this Third Claim for Relief, including arrest and detention for an unlawful purpose in violation of the rights to freedom of speech, association, and assembly, were inflicted upon them by the joint and collusive actions of the Defendants and government officials acting under color of law, albeit through unlawful or unauthorized actions and for unlawful and unauthorized purposes. 88. These acts caused direct physical and mental pain and suffering upon the Plaintiffs,

caused loss of liberty and property, and placed them at severe risk of personal injury in connection with their participation in, and support of, the peaceful exercise of their rights of free speech and free association, and their rights to hold, exercise and express their political beliefs. 89. Because the acts described herein violated provisions prohibiting arbitrary arrest and

prolonged detention including: (1) treaties binding on the United States, (2) statutes adopted by the Congress of the United States implementing those treaty obligations, (3) international and domestic judicial decisions applying and interpreting the prohibition against arbitrary arrest and prolonged detention, (4) administrative regulations and international and domestic judicial decisions applying and interpreting the prohibition against arbitrary arrest and prolonged detention, and (5) a number of specific, universal, and obligatory standards that are recognized to be part of customary international law, these acts constitute "tort[s] ... committed in violation of the law of nations or a treaty of the United States" under the Alien Tort Statute, 28 U.S.C. § 1350.
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90.

Defendants aided and abetted in the carrying out of these abuses, and did not act to

prevent or punish these violations of human rights as embodied in international and domestic law. 91. Defendants are liable for aiding and abetting and/or ratifying these abuses, as

specified in this cause of action. 92. The Plaintiffs are therefore entitled on this basis to compensatory and punitive

damages, in amounts to be established at trial, and to such other declaratory and/or injunctive relief as may be deemed appropriate. FOURTH CLAIM FOR RELIEF (Forced Labor, a Violation of International Law for Which the Alien Tort Claims Act and the Torture Victims Protection Act Provide Relief) (By Shi Tao and Other Plaintiffs Against All Defendants) 93. Plaintiffs re-allege and incorporate by reference the facts and allegations set forth in

paragraphs 1 through 47 and 54 through 70 of this Complaint as if fully set forth herein in this Fourth Claim for Relief. 94. The Plaintiffs were placed in fear for their lives, were deprived of their freedom, and

were forced to suffer severe physical and mental abuse associated with forcing them into working in the prison factories in inhumane conditions, by the joint and collusive actions of the Defendants and government officials acting under color of law, through unlawful or unauthorized actions. 95. Because the acts described herein violated provisions prohibiting forced labor

including: (1) treaties binding on the United States, (2) international and domestic judicial decisions applying and interpreting the prohibition against forced labor, and (3) administrative regulations and international and domestic judicial decisions applying and interpreting the prohibition against forced labor, and (4) a number of specific, universal, and obligatory standards that are recognized to be part of customary international law, these acts constitute "tort[s] ... committed in violation of the law of nations or a treaty of the United States" under the Alien Tort Claims Act, 28 U.S.C. § 1350. 96. Defendants aided and abetted in the carrying out of these abuses, and did not act to

prevent or punish these violations of human rights as embodied in international and domestic law. 97. Defendants are liable for aiding and abetting and/or ratifying this cause of action.
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98.

The Plaintiffs are therefore entitled on this basis to compensatory and punitive

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