I finally had a chance to take a quick look at the Yahoo-Chinese dissidents lawsuit.  You can access a pdf version of the Complaint here.  I was initially skeptical of the suit but I'm not so sure.  I think that, to the extent possible, the US should have in place laws which prohibit US-based businesses from aiding the censorship efforts of other governments.  That would be the best route to take, but in the interim, it will be interesting to see what these types of lawsuits accomplish. 

The Complaint raises several principal claims.  First, the plaintiffs assert claims under the Alien Tort Claims Act (and related statutes).  Second, the plaintiffs assert claims under the Electronic Communications Privacy Act (and Unlawful Access to Stored Communications).  (Why they included claims for "battery," "false imprisonment" I have no idea.  To the extent other procedural hurdles are crossed the court will likely knock these out.  I think there is a state tort claims statute out there, but I did not see it mentioned here.)

Alien Tort Claims Act

The Alien Tort Claims bar is pretty high – it's tough to successfully bring a claim against a company that co-operates with a foreign government in perpetrating a violation.  For example, in 2004, plaintiffs brought claims against various companies for cooperating with the Apartheid regime.  Plaintiffs alleged that these business went beyond engaging in mere business dealings with the South African government. Plaintiffs alleged that the resources provided by the defendants were sufficiently central to the regime that the regime designated defendants' sites of operations as "key points," deserving of increased [government] security.   

The court (Judge Sprizzo) disagreed, reasoning that it was not such a well established norm of international law that helping someone else violate international law was contrary to international law: 

Plaintiffs here point to little that would lead this Court to conclude that aiding and abetting international law violations is itself an international law violation that is universally accepted as a legal obligation.

While on first glance this may seem off base, Judge Sprizzo's conclusion (that doing business with the apartheid regime was not contrary to well accepted international norms) has some support.  As in the present case, the United States and a whole host of Western countries didn't sign on to any international condemnations of this practice, including UN resolutions, the International Criminal Court, etc. Additionally, as the court noted,

history indicates that Congress, consistent with most other world powers, supported and encouraged business investment in apartheid South Africa. The Comprehensive Anti-Apartheid Act of 1986 . . . placed a minimal amount of restrictions on business activities with South Africa.

The Apartheid case can be contrasted with the Unocal case where the Ninth Circuit essentially established "aiding and abetting" liability under the ATCA.  (See generally this Anthony Sebok article (discussing both the Apartheid decision and the Unocal decision and placing them both in context)).  In Unocal the plaintiffs sued Unocal "on the theory that it had 'aided and abetted' gross violations of their human rights."  According to the plaintiffs Unocal knew that the Myanmar Army would violate the human rights of the villagers in order to help Unocal.  The Ninth Circuit initially sided with the plaintiffs.  (As the Sebok article notes, the parties settled that case prior to the rehearing en banc.  Although the initial decision favored plaintiffs it was far from obvious that the court would adhere to its initial ruling.)  Under Unocal the plaintiffs here stand on reasonably good footing, maybe even better than the Unocal plaintiffs.  As the Complaint alleges, Yahoo (and its subsidiaries) helped the Chinese government identify and then prosecute (and torture) various dissidents.  Although it's not 100% clear from the Complaint, the implication is that the goverment would not have even located the dissidents without Yahoo's help.  This is actually more direct involvement in the tortuous activities of the foreign government than in either the Apartheid litigation or in Unocal.  Originally I was thinking that plaintiffs would seek to hold companies like Yahoo liable for their censorship efforts.  But the case arguably presents more and a much more direct link to the torture and other actions endured by plaintiffs.

Electronic Communications Privacy Act/Stored Communications Act

Plaintiffs also allege a bevy of statutory violations around privacy protections in electronic communications.  I'll reserve a more detailed review of the claims for another day, but it's worth noting initially that cases such as Theofel v. Farey Jones, 341 F.3d 978 (9th Cir. 2003) (discussed here) illustrate that the claims are not far fetched as one may think.  Farey Jones involved a litigant's use of a subpoena to gain access to communications of an opposing party from the opposing party's ISP.  The ISP had been given notice but did not object.  Instead the party whose communications were siezed later brought a separate action charging violations of the Stored Communications Act.  The 9^th Circuit agreed, holding that use of a subpoena which "transparently and egregiously violated the Federal rules" rendered the access without authorization and in violation of the statute.  In this case there are probably other rules which come into play (treaties, extraterritorial application, for example).  The analysis is admittedly not very straightforward.  (For a run down of the various statutory twists and turns likely involved, see this article by Orin Kerr: "A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It.") 

More:  here's a link to the DOJ's very helpful cybercrime manual.  It does note with respect to the stored communication issue that "the section does not apply to 'the person or entity providing a wire or electronic communication service' . . . . unlike in the Wiretap Act context, service providers cannot violate § 2701, regardless of their motives in accessing stored communications."  Take that for what it's worth.