The Criminal Applicable Analysis Of The Cross-border VPN Case

VPN is a kind of remote access technology,its Chinese name is "virtual private network".One of the technology purposes is to "climb over the firewall" to visit overseas websites.In judicial practice,there are many kinds of types in cross-border VPN cases,including the criminal behaviors of providers and users of VPN software climbing over the firewall.This paper only studies applicable issues of criminal law about the behaviors that software providers sell the VPN software climbing over the firewall.On January 22,2017,Ministry of Information Industry announced a notice about clearing up and regulating the Internet access service market,the notice triggered a large-scale criminal punishment for the related behaviors of selling VPN software climbing over the firewall in judicial practice,but there are still huge disputes on the nature of the behaviors.First,analyzing the behavior mode of cross-border VPN cases.As a kind of remote access technology,VPN can set up a private channel on the Internet and realize the remote access between users and enterprises,within enterprises and between enterprises.This technical feature enables VPN to be applied to "over the firewall".The providers of the VPN software climbing over the firewall develop,set up and sell the software,so that users could visit overseas websites by opening the software.Combined with the juridical practice,the specific behavior mode of the providers of the VPN software climbing over the firewall in the cross-border VPN case includes the comprehensive behavior of developing,setting up and selling the VPN software climbing over the firewall and the single behavior of selling or distributing the VPN software climbing over the firewall.Secondly,combing the current applicable situation of criminal law in cross-border VPN cases.According to the classification of behavior patterns in cross-border VPN cases,this paper introduces the current applicable situation of criminal law to each behavior pattern relate to the theoretical point and judicial practice,At present,there are many charges in the comprehensive behavior of developing,setting up and selling VPN wall climbing software and the single behavior of selling the VPN software climbing over the firewall,such as the crime of illegal business operation,the crime of refusing to perform the obligation of information network security management and so on.There is only one case of distributing the VPN software climbing over the firewall,so there is no dispute about charge.Thirdly,analyzing the deficiency about current applicable situation of criminal law in cross-border VPN cases.From the macro analysis,due to the lack of consensus,the three charges exist at the same time in practice,but there are contradictions in the nature of the three charges,resulting in the situation of qualitative incongruity.From the micro analysis,there are also unreasonable aspects in the case determination.Because the firewall(GFW)doesn’t publicly state,that foreign websites are not information that could be accessed only with the consent of the administrator,and the law does not explicitly stipulate the act of climbing over the firewall as a crime,the VPN software climbing over the firewall is not infallible in the judgment of "programs and tools specially used to invade and illegally control the computer information system".It is still controversial whether the VPN software climbing over the firewall is belong to telecommunication business if the behavior applies for the crime of illegal business operation.At the same time,there are some problems in the application of the crime of refusing to perform the obligation of information network security management.The coexistence of accusations also leads to a wide range of crimes,a large difference in the threshold of crimes,and improper scope of crimes.Moreover,it will result in the situation that the sentence length of the defendants for the same crime is different greatly,and the sentencing of the case is not equal,which is harmful to the justice.Finally,optimizing the criminal law path of cross-border VPN cases.To solve these problems in the application of criminal law,it is necessary to coordinate the applicable charges to various behavior modes.For the behavior of developing,setting up and selling the VPN software climbing over the firewall,its social harm does not come from the behavior’s destructiveness to the computer network system,but from the business behavior for the VPN software climbing over the firewall VPN without permission or the failure to fulfill the requirements of the network security law and other laws.Compared with the behavior of developing and setting up the VPN software,the sales behavior is the urgent and dangerous behavior that can really cause the infringement of legal interests.Therefore,the analysis process of the accusation of developing,setting up and selling VPN software is also applicable to selling VPN software.At the same time,some special behaviors in cross-border VPN cases are analyzed.After the application of criminal law is determined,the problems of incongruity and irrationality in nature are solved,the range of entering crime is reduced,the sentencing is equal,and the crime and punishment are balanced.