VZCZCXRO9392
PP RUEHCN RUEHGH
DE RUEHHK #1941/01 1300937
ZNY CCCCC ZZH
P 100937Z MAY 06
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC PRIORITY 6603
INFO RUEHOO/CHINA POSTS COLLECTIVE PRIORITY
RHEHNSC/NSC WASHDC PRIORITY

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 001941 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR EAP AND EAP/CM 
NSC FOR DENNIS WILDER 
 
E.O. 12958: DECL: 05/10/2031 
TAGS: PGOV PHUM PINR PREL HK CH
SUBJECT: HONG KONG PRIVACY COMMISSION TO INVESTIGATE 
YAHOO!'S ROLE IN DETENTION OF CHINESE DISSIDENT 
 
REF: 05 HONG KONG 4265 
 
Classified By: E/P Chief Simon Schuchat. Reasons: 1.4(b,d). 
 
¶1. (C) Summary:  On May 2, Hong Kong's Privacy Commissioner 
confirmed to poloff that the Commission was investigating 
whether information provided by Yahoo! regarding mainland 
journalist Shi Tao, had violated the territory's Personal 
Data (Privacy) Ordinance.  Although Shi is not a Hong Kong 
resident, the International Chinese Pen Center, an 
organization of exiled mainland writers, has filed a 
complaint with the privacy watchdog on Shi's behalf.  Of 
particular concern to lawmakers and human rights activists 
was speculation that Yahoo!'s Hong Kong-based operations had 
provided information to PRC law enforcement officials -- a 
clear violation of Hong Kong's status as an autonomous 
territory with a separate legal structure.  In response, 
representatives of Yahoo! have emphasized that Yahoo! China, 
not Yahoo! Hong Kong, responded to the request from mainland 
law enforcement in Shi's case.  However, it is unclear what 
role Yahoo! Holdings (Hong Kong) Limited, the holding company 
which previously owned both Yahoo! China and Yahoo! Hong Kong 
at the time of Shi's arrest, played in passing, authorizing, 
or directing the transfer of data to PRC authorities; it may 
therefore be the current focus of the Privacy Commission's 
investigation.  End Summary. 
 
Commission Investigates Yahoo! 
------------------------------ 
 
¶2. (C) On May 2, Hong Kong's Privacy Commissioner for 
Personal Data Roderick Woo confirmed to poloff that the 
Commission was investigating whether information provided by 
Yahoo! regarding mainland journalist Shi Tao, had violated 
the territory's Personal Data (Privacy) Ordinance.  According 
to Shi's mainland court verdict, Yahoo! Holdings (Hong Kong) 
Limited provided information to China's state security 
authorities which later led to Shi's arrest and conviction. 
Although Shi is not a Hong Kong resident, Zhang Yu, Secretary 
General of the International Chinese Pen Center, an 
organization of exiled mainland writers, filed a complaint 
with the Privacy Commission -- a statutory body separate from 
the Hong Kong Government and charged with protecting the 
privacy of personal data -- on Shi's behalf.  During the 
meeting, Woo was not forthcoming about the details of the 
case, citing the sensitive nature of the ongoing 
investigation. 
 
¶3. (C) In his initial response to the media storm regarding 
Yahoo!'s role in Shi Tao's imprisonment last September, 
Yahoo! co-founder Jerry Yang did not deny that his company 
had provided information to mainland authorities; he instead 
emphasized that the company had no choice but to obey the 
national laws in the countries in which it operated. 
According to press reports, a total of four mainland internet 
writers have been imprisoned (Shi Tao, 10 years; Li Zhi, 8 
years; Jiang Lijun, 4 year; and Wang Xiaoning, 10 years) 
after Yahoo! Holdings (Hong Kong) Limited turned over 
information regarding their yahoo.cn email accounts. 
 
Yahoo! Denies Violating Hong Kong Autonomy 
------------------------------------------ 
 
¶4. (C) Of particular concern to Hong Kong lawmakers and human 
rights activists was the possibility that the Yahoo! 
operations based in Hong Kong had provided information to PRC 
investigators, a clear violation of Hong Kong's status as an 
autonomous territory with a separate legal structure.  In two 
separate instances, representatives of Yahoo! vigorously 
denied that Yahoo! Hong Kong had provided information on Shi 
Tao to mainland authorities.  In October 2005, Hong Kong's 
legislature convened a special Panel meeting to ascertain 
whether the territory's privacy laws had been violated. 
Allan Kwan, Managing Director of Yahoo! Holdings (Hong Kong) 
Limited stated in an October 28, 2005 letter to Legco that 
"Yahoo! Hong Kong has not been involved in any disclosure of 
information, including that relating to Shi Tao, to the 
mainland authorities...Since compliance with law enforcement 
mandates in mainland China are handled by Yahoo! China, 
Yahoo! Hong Kong is not aware of what information was 
provided in that case or the circumstances thereof.  Our 
understanding of this matter is that the data disclosure was 
made by the Yahoo! China operation for a PRC user in China 
holding a .cn email account.  Neither Yahoo! Hong Kong nor 
any .hk user data was involved, and as such we do not believe 
that there are any implications with respect to the Personal 
Data (Privacy) Ordinance."  Furthermore, on February 15, 
during testimony before the U.S. House Committee on 
 
HONG KONG 00001941  002 OF 002 
 
 
International Relations on the issue of the Internet in 
China, Michael Callahan, Senior Vice President and General 
Counsel for Yahoo! Inc. again stated that Yahoo! Hong Kong 
"was not involved in any disclosure of information about Mr. 
Shi to the Chinese Government." 
 
Privacy Violation? 
------------------ 
 
¶5. (C) At issue is the role of three separate entities 
potentially involved in the case of Shi Tao: Yahoo! China, 
Yahoo! Hong Kong, and Yahoo! Holdings (Hong Kong) Limited, 
the holding company which previously owned the former two 
companies.  Since August of last year, Yahoo! China has been 
owned and controlled by Alibaba.com Corporation, a Chinese 
technology firm.  It is clear that Yahoo! China responded to 
a request from mainland law enforcement authorities regarding 
Shi and that Yahoo! Hong Kong played no role in this transfer 
of user information.  However, what is unclear is the role of 
the holding company, Yahoo! Holdings (Hong Kong) Limited in 
passing, authorizing, or directing the transfer of data to 
PRC authorities and may be the focus of the Privacy 
Commission's investigation.  Woo confirmed that if the 
complainant (in this case, the International Chinese Pen 
Center) has legal standing to lodge a complaint, then the 
Commission would be obligated to investigate the case.  If 
Yahoo! -- whether it is Yahoo! Hong Kong, or Yahoo! Holdings 
(Hong Kong) Limited is found to have violated Shi Tao's 
privacy, then the Privacy Commissioner may serve an 
enforcement notice on the company which may carry a penalty 
of a fine and/or imprisonment. 
 
¶6. (C) The Privacy Commissioner told the "South China Morning 
Post" on April 26 that Shi's case was challenging because, 
"there are difficulties with the technical definition of the 
term 'personal data' and (issues) involving jurisdictional 
points."  Moreover, the Ordinance also provides for 
exemptions to the privacy law "where their application is 
likely to prejudice certain competing public or social 
interests, such as security, defense and international 
relations; prevention or detection of crime;" etc.  For 
example, on May 10, the Court of First Instance issued a 
court order requiring four Internet service providers to 
provide the identities of 49 users who allegedly downloaded 
local films illegally.  In this case, the Hong Kong Court 
found that the users' privacy was exempt from the Privacy 
Ordinance in order to detect criminal activity. 
Cunningham