Fortifying the Great Firewall: The Criminalization of VPNs, Part II

In “Fortifying the Great Firewall: The Criminalization of VPNs, Part I," Dui Hua looked at the various cases where internet users were criminally punished for using unauthorized VPNs. In Part II, Dui Hua examines the crackdown on providers of VPNs.

An individual surnamed Zhang (张) is given a two-day administration detention by cybersecurity police in 2018 for selling software that speeds up connections to overseas websites. His profits were also confiscated.
Image Credit: Jiangsu Cybersecurity Police

In 2017, a series of criminal cases against VPN providers and users began to surface after the Ministry of Industry and Information instituted VPN restrictions earlier that year by issuing the Notice on Cleaning Up and Regulating the Internet Access Service Market. In these cases, authorities invoked the offense of “illegally providing a tool for intruding into a computer information system.” In a legal opinion column published in October 2018, China University of Political Science and Law Professor Luo Xiang likened the offense to the now-abolished crime of “hooliganism” (liumangzui 流氓罪), calling it “cyber hooliganism” (jisuanjiliumangzui 计算机流氓罪), because it is increasingly being misused by law enforcement, as hooliganism once was, and is raising what Luo sees as “similar challenges.” Prior to its abolition in the 1997 Criminal Law, “hooliganism” was used as a catch-all offense based on weak legal logic that gave authorities discretion to punish a broad range of vaguely defined crimes. Luo uses the term cyber hooliganism as an analogy to imply that the offense of illegally providing a tool to intrude into computers has become a new “pocket crime” (kou daizui 口袋罪). Such ill-defined offenses can all too easily be used, especially by police, to criminalize cyber activities, even those which “no explicit stipulations of law deems (sic) a crime,” and for which, according to Article 3 of the Criminal Law, they should not “be convicted or given punishment.”

An additional reason for concern is that the offence of using VPNs, which is now incorporated as Article 285 of the Criminal Law, is applicable in a broad range of circumstances, when an offender violates a decision or law formulated by the National People’s Congress (NPC) and its Standing Committee (SC), or even an administrative regulation, measure, or order issued by the State Council. In addition, the offense has been widely used even when an individual does not engage in any of the aforementioned cybercrimes: VPN providers are prosecuted simply for violating the 2017 VPN ban, an administrative notice by the Ministry of Industry and Information. As the VPN ban was not formulated by the State Council, however, violating this administrative measure should not incur criminal liability under Article 96 of the Criminal Law.

Hooliganism in the Cyber Age: What counts as a serious crime?

Available information shows that most offenders of cyber hooliganism were born in the 1980s to 1990s. Deng Jiewei (邓杰威) is one of the young VPN sellers known to have been convicted and sentenced to nine months’ imprisonment in Dongguan, Guangdong, in March 2017. The judgment stated that in October 2015 Deng began selling software on his website that allowed users to “visit foreign websites that could not be accessed by a mainland IP address” and “made an illegal profit of RMB 13,957.57.” Although Deng turned himself in and pleaded guilty during the trial, the court refused to mete out a lenient sentence on the grounds that Deng had been “committing the crime for a long time” and his actions “caused relatively great social harm.” Professor Luo disputed Deng’s conviction and sentencing in his column, because violating an administrative notice issued by the Ministry of Industry and Information should not have constituted a criminal offense.

In a separate case, news media sources widely reported that an individual surnamed Dai was sentenced to three years (with a three-year suspension), in Baoshan District, Shanghai, in September 2018. Dui Hua’s research revealed that his full name is Dai Guimao (戴贵茂). Dai, a software developer for a securities management company, was accused of renting multiple servers from overseas internet service providers and providing VPN services for hundreds of mainland users from April 2016 to October 2017. The transaction records of Dai’s Wechat and Alipay accounts were cited as criminal evidence against him. Dai was also given a fine of RMB 10,000, equivalent to all the revenue he made from selling VPNs.

Dui Hua also unearthed five other cases, in which a total of 17 individuals were sentenced for selling VPNs from 2017 to 2019 for crimes stemming from the concept of cyber hooliganism. Article 285 of the Criminal Law subjects offenders to no more than three years’ imprisonment in cases where the circumstances are "serious," and three to seven years’ imprisonment if the circumstances are “especially serious.” In 2011, the Supreme People’s Court issued an interpretation defining both serious and especially serious circumstances. A case is considered serious if an offender provides a special program or tool that can be used for intruding into or illegally controlling a computer information system that reaches more than 20 people, or makes an illegal income of RMB 5,000. Once either the number of users or the amount reaches five times this standard, the circumstances become especially serious.

Although the court judgments stated that all five cases were “especially serious,” their sentences varied from suspended sentences to 39 months’ imprisonment. Lu Bo (卢勃), who received the longest sentence among the 11 offenders in Henan, was accused of setting up a company that provided VPN services to 2,499 internet users and making an income of RMB 375,332 between April 1, 2015 and September 23, 2017. Lu and six other company employees, who were sentenced to 14-15 months’ imprisonment, lodged an appeal, but the Sanxiamen Intermediate People’s Court upheld the judgment on December 17, 2018.

In a separate case, also in Henan, Liu Bingyang (刘冰洋 ) was only given a three-year sentence with a five-year suspension, even though he had earned roughly the same amount as Lu by providing VPN services to over 4,000 internet users. Another two people, surnamed Sang (桑), were also given two to three years’ imprisonment (with suspensions of two to three years) in Kunming, Yunnan, for amassing a profit of RMB 300,000. They claimed to have served 20,000 users. In another case concluded on January 29, 2019, in Hubei, Liu Xiaokang (刘小康) was also given a three-year sentence (with a suspension of four years) for making an illegal profit of RMB 2,662,280, seven times more than Lu and all his employees had made. The prosecutors found that 486,830 online users had registered for Liu’s VPNs. Of these, 37,077 were paying users. In the most recent case, concluded on April 22, 2019, six defendants who had made a profit totalling RMB 263,669 were given three-year suspended sentences. The judgment did not state how many users had purchased their VPN services.

Evidence also suggests that promoting the use of VPNs even without an intent to profit can result in prosecution. On March 25, 2019, Sun Dongyang (孙东洋) was indicted for “illegally providing a tool for intruding into a computer information system.” Sun founded doubibackup.com, a website that provides free-of-charge instructions for online users, not only about VPNs but also about other circumvention software, such as Telegram and Shadowsocks. At the time of writing, Sun remains incarcerated in Henan’s Xinmi City Detention Center.

Illegal Business

Internet users who sell VPNs unapproved by the state are can also fall victim to the “illegal business activity” charge. The most severe sentence known to have been given involved Wu Xiangyang (吴向洋), a network engineer who was sentenced to five years and six months’ imprisonment in Guangxi in December 2017. Since 2013, Wu had operated an online store on his own website, popular e-shopping site Taobao, and social networking sites, where he made an “illegal profit” totalling RMB 500,000 from leasing or selling VPN software and hardware devices without applying for a business permit. Wu’s VPN service, which aimed to provide better access to overseas audio and video programs, claimed to have served 8,000 foreign clients and 5,000 businesses. Wu is expected to complete his sentence in December 2022. Dui Hua’s research recently revealed that the Guigang Intermediate People’s Court ordered the Pingnan County People’s Court to retry the case due to insufficient evidence on September 25, 2018. The outcome of the retried case remains unknown at the time of writing.

Dui Hua’s research also discovered four similar cases involving eight defendants who were also sentenced in 2018. Their sentences ranged from suspension to nine months’ imprisonment. In one of these cases, a defendant surnamed Liao (廖) was given a prison sentence in Anhui for allegedly making revenue of about RMB 1.2 million in the 16 months from May 2016 to September 2017 from selling VPNs and EVO boosters, a software application that speeds up connections to overseas game servers, without a business license.

The amount of proceeds made from selling VPNs and other software applications, again, does not appear to be an important factor in determining sentencing. For instance, both Wu and Liao, who received prison sentences, made substantially lower revenues, while three other people whose revenues were much higher were only given suspended sentences. The three, surnamed Chen (陈), Cao (曹) and Zeng (曾), sold VPNs for around RMB 8.8 million and made profits of RMB 250,000 each. Despite the scale of their businesses across China, the court in Hunan gave them suspended sentences, because the judgment stated that they each had surrendered RMB 500,000 before they were indicted.

Dui Hua has previously reported that the offense of illegal business activity is also commonly used against Christian book sellers. The offense, which contains a vague clause of “other activities” in Article 225(3) of the 1997 Criminal Law, has allowed the Supreme People’s Court to issue judicial interpretations that extend the scope of criminal liabilities to violators of administrative regulations under the guise of “disrupting market order.” In the cases discussed above, VPN sellers were likewise found guilty of disrupting the market order governed by the Ministry of Industry and Information.

The Costs of China’s Criminalization of VPNs

China pays a high price for enforcing high-stakes and arbitrary control over the internet. Externally, it is an important irritant in U.S.-China relations. In 2016, the U.S. for the first time began calling China’s online censorship a trade barrier. According to the American Chamber of Commerce in China's 2016 American Business in China White Paper, among the severe challenges faced by its members was the fact that “China is extending this restrictive regulatory framework beyond traditional telecommunications services into any IT sector that utilizes Internet connectivity, including…. technical standards that often diverge from global standards, Internet content restrictions, and privacy and cross-border data flow restrictions.”

Domestically, internet users forced to spend money on VPNs to access overseas information are additionally often subjected to slow and low-capacity internet connections. The Great Firewall is detrimental to creativity and innovation, because mechanisms that block access to the web leave entrepreneurs, artists, scientists, and inventors unfamiliar with global trends and practices, and unable to communicate with peers abroad. In 2017, The Guardian, which appears intermittently on the list of blocked foreign websites, wrote that the ban on VPNs also harms academics, software developers, and foreign businesses: “For years Chinese researchers have complained they lack adequate access to overseas journals and methods to communicate with universities around the world, while developers rely on code hosted on websites based outside China.”

While online information is not necessarily easy to access even in democratic societies, netizens there face no legal risk for using or selling VPNs. China under Xi has made the pursuit of internet freedom even more costly than under his predecessors. Since 2017, providers and users of VPNs have faced criminalization as part of Xi's bid to fortify the Great Firewall against any ideas or information that Xi deems threatening. VPN providers can easily fall prey to charges of “illegally providing a tool for intruding into a computer information system” or illegal business activity, since, as we have seen, both “pocket crimes” effectively extend criminal liabilities to violators of administrative regulations. More research is needed to understand the rationale behind sentencing. Despite an announcement by the Beijing city government on August 15 of a three-year plan to expand openness in some areas in internet content service, it is doubtful that the trend towards increasingly strict government control over the distribution and sharing of content in cyber space that could be interpreted as political will see meaningful change. What is crystal-clear, however, is that Xi has magnified his internet control by punishing online users who access or post information that is deemed sensitive or subversive by the state, or enable others to do so, outside of China’s government-approved domestic networks.

Fortifying the Great Firewall: The Criminalization of VPNs, Part I

China’s Great Firewall keeps people inside the country from accessing thousands of overseas websites, 
including Twitter, YouTube, and Facebook. Image credit: Megan Pendergrass

With a netizen population of 829 million at the end of 2018, China is arguably the world’s most sophisticated surveillance state: with increasing effectiveness, China blocks information deemed sensitive or harmful by the party from entering its domestic network. Its notorious censorship scheme, widely known as the “Great Firewall,” came into operation not long after the internet arrived in China in 1994. The Chinese government realized the need to protect the regime from “flies” once “the window is open for fresh air,” a famous quote from Deng Xiaoping, who sought to keep the nation away from western influence, despite a commitment to economic reform.

The Great Firewall has blocked around 10,000 domain names, including Dui Hua's, according to Greatfire.org, a non-profit group that monitors the status of online censorship in China. Almost all popular social media websites and mobile apps are censored, including Google, Facebook, YouTube, Instagram, and Twitter. The New York Times, The Wall Street Journal, Reuters, Bloomberg, and the BBC are among the best-known foreign media outlets blocked by China’s domestic network. Just ahead of the 30th anniversary of the events of June Fourth, 1989, all versions of Wikipedia, in all languages, joined the long list of foreign websites blocked by the Chinese government. Even academic, cultural, and scientific sites can be blocked: current examples include Google Scholar, The China Quarterly, Northwestern University Medical School, and Shutterstock.

Driven by their desire for information filtered out by the domestic network, an estimated 20-30 million internet users rely on virtual private networks (VPNs) to get unfettered access to overseas websites (commonly referred to as “scaling the wall”). They typically do so by paying a small subscription fee. The academic sector relies on VPNs for research data and to connect to libraries worldwide. VPNs are also a necessity for both Chinese companies that conduct business overseas and foreign companies that conduct business in China.

Xi Jinping expresses his views on cybersecurity: “There is no national security without cyber security.” Image Credit: Xinhuanet

In view of the growing number of internet users accessing overseas information, Beijing has not hesitated to target VPN providers and cripple their services. VPN service providers describe the battle against online censorship as a game of cat-and-mouse, in which they play mice trying to evade a giant cat—the Chinese government—by continuing to modify or develop new tools to skirt the increasingly fortified Firewall. The mice, however, have been playing a tougher game ever since Xi, in early 2017, called on other countries to respect different models of regulating the web space and extolled his concept of “cyber sovereignty.” A hallmark of how Xi exercises his cyber sovereignty is the launching of clean-up campaigns that periodically shut down websites and online accounts containing or propagating “harmful” online information. China’s state-owned internet service providers China Mobile, China Unicom, and China Telecom were ordered to completely block VPNs by February 2018. Green VPN, one of the most reputable China-based VPN companies, ceased service on July 1, 2017. In the same year, Apple defended its decision to remove 674 VPN apps from its China app store because they violated Chinese laws. All companies and individuals must seek government approval to use and install VPNs, effective March 31, 2018.

In addition to expanding the list of blocked foreign IP addresses and shutting down unofficial VPN services, Xi has recently shifted to targeting individual users and providers of VPNs. Those who attempt to escape the tight leash on internet control, or those who enable others to do so, not only face fines, but also criminal detention and imprisonment for varying offenses.

Before & Now

China started regulating the use of VPNs with the enactment of the Regulations of the Administration of International Networking of Computer Information in 1996. Article 6 of the regulation states that “[c]omputer information networks within the territory of China, when connected with international networks, must use international inward and outward channels (guojichurukouxindao 国际出入口信道) provided by the national public telecommunication network of the Ministry of Posts and Telecommunications.” Violators shall be ordered to terminate their networking activities and are subject to a maximum fine of RMB 15,000. But in over two decades of existence, the regulation was not enforced until 2017, when Xi began tightening control over the VPN market, according to Lee Jyh-An, at the Chinese University of Hong Kong, who publishes extensively on Chinese internet law.

An early case concerning the criminalization of internet users who bypass the Great Firewall, however, predated the VPN ban in 2017. In May 2015, Chen Lefu (陈乐福) was detained for 28 days in Shanghai on suspicion of sabotaging a computer information system. Chen promoted the use of Twister, an open source peer-to-peer (P2P) microblogging network whose decentralized platform prevents sent messages from being blocked or deleted after they are published. The tool also protects publishers’ identities from being tracked, since the posts’ IP addresses are not recorded. Exiled activist Wen Yunchao speculated that another reason for detention was that Chen helped other dissidents to circumvent the Great Firewall. Chen also published a list of Shanghai and Chongqing netizens he suspected of being the 50 Cent Army, a colloquial term referring to state-backed online commentators. Human rights lawyer Liu Xiaoyuan said that several other individuals were detained alongside Chen, but their identities are not known.

In December 2018, news media sources began reporting more cases concerning VPN users. Zhu Yunfeng (朱云枫) was given a warning and a fine of RMB 1,000 by public security in Shaoguan, Guangdong, for “establishing or using an unauthorized channel to access the international internet” via Lantern, a globally recognized circumvention tool. The administrative punishment decision stated that Zhu had logged into the VPN 487 times in one week prior to the warning. A similar case occurred in Chongqing on January 4, 2019. Police summoned Huang Chengcheng (黄成成), on suspicion of the same offense. Huang was previously sentenced to two years’ re-education through labor in March 2011, after circulating online messages calling on netizens to “go for a stroll” to support China’s pro-democracy protests that year, known as the Chinese “Jasmine Revolution” and inspired by the Arab Spring in Tunisia.

In addition to individual VPN users, police have also targeted unauthorized use by trading corporations. In June 2019, a news media source reported that an overseas trading company in Haining City, Zhejiang, received an administrative punishment for installing an unauthorized circumvention application. Police alleged that the use of such applications from an unidentified developer exposed the risk of privacy leakage. Nothing else is known about the administrative punishment.

It must be noted, however, that using VPNs does not necessarily incur a penalty, nor is it necessarily criminal. Global Times editor-in-chief Hu Xijin, an active user of Twitter, is known to use a mobile circumvention tool frequently to tweet while defending China against international criticism, including over Xinjiang’s political re-education camps, which hold or have held over one million Muslims. China’s state media outlets China Daily and Xinhua, as well as Chinese telecommunications companies, rely on foreign social networking sites that are blocked in China to launch soft-power, marketing, and advertising campaigns. For example, Xinhua has accounts on both Facebook and Twitter, although these sites are blocked for most Chinese users. Similarly, despite being widely mocked online for tweeting “Happy #2019” on New Year’s Day with a “Twitter for iPhone” stamp clearly visible due to a VPN issue, Huawei continues to actively use Twitter and Facebook to rebut accusations that the telecom giant poses a threat to U.S. national security.

"Politically harmful content": The categories of offenses

While the Chinese government justified its internet clean-up campaigns to combat economic crimes, online gambling, and pornography, the crackdown is also conspicuously aimed at eradicating “politically harmful content.” Within one month after the Cyberspace Administration of China launched a campaign on October 20, 2018, about 9,800 social media accounts had been scrubbed for posting sensational or vulgar content, or “spreading politically harmful information, maliciously falsifying the party history, slandering heroes and defaming the nation’s image.” As part of the internet clean-up, the crackdown has extended its reach to online users who post or circulate online messages unwanted by the party, or sometimes even local officials, beyond the Great Firewall.

"Picking quarrels and provoking troubles"

The offense of picking quarrels and provoking troubles is typically invoked to punish such VPN users. In November 2018, Radio Free Asia (RFA) reported that Liu Jichun (刘继春) was formally arrested in Chongqing because he refused to delete a large number of his tweets attacking social ills. Available sources, however, have not revealed the exact content of his tweets. Another case, also reported by RFA, sheds light on the political nature of offenses that resulted in imprisonment: in December 2018, Jiangsu netizen Liu Hongbo (刘红波) received a six-month sentence for picking quarrels and provoking troubles. The judgment stated that Liu Hongbo posted 72 tweets between August 2017 and August 2018 that “defamed the party and national leaders” and 329 tweets that harmed the image of the party and government. Liu Hongbo stated in his defence that the tweets were not composed by himself; he only liked and retweeted Guo Wengui's tweets. Guo is an exiled billionaire tycoon wanted by China for a variety of crimes. He is currently seeking asylum in the U.S.

An indictment statement recently circulated online stated that Shi Genyuan (施根源) was indicted for the same offense as Liu Hongbo in March 2019, because he used Twitter and Facebook to post 383 messages that “attacked the party and Chinese leaders, and exaggerated and distorted certain sensitive cases and incidents.” His messages, which have been discussed, forwarded, and liked 2,316 times, were said to have “caused a serious disturbance in a public place.” Since the Supreme People’s Court issued a judicial interpretation in 2015, the crime of picking quarrels and provoking troubles has extended its reach into virtual space, even though, ironically, most citizens do not have access to much of the space without VPNs.

Dui Hua’s research into online judgments uncovered several cases that have not been reported by news media sources. A day prior to detention on October 7, 2018, Xu Nailai (许乃来) staged a solo protest on Beijing’s Wangfujing Street with a banner that read, “End the Chinese communist dictatorship; no more sexual assaults and faulty vaccines; taxpayers are in dire straits.” On March 25, 2019, Xu was sentenced to three years and six months’ imprisonment in Tianjin for picking quarrels and provoking troubles. The allegations against him also included posting a large number of tweets that “vilified the Communist Party and political system, slandered Chinese leaders, and hurled insults at public security.”

The criminalization of VPN users also extends to critics of local officials. In a separate case also concluded in Tianjin in September 2018, Mu Zhixiang (穆志祥) was sentenced to 22 months’ imprisonment and convicted of the same offense as Xu Nailai, in addition to illegal business activity. Apart from using his personal blog and domestic online forums that required no circumvention, Mu was accused of posting multiple messages on Facebook and Twitter that allegedly attacked Tianjin public security officials and smeared the government.

"Offenses related to defamation"

VPN users can also stand accused of defamation. Initially detained and arrested for picking quarrels and provoking troubles in the second half of 2017, Yin Zhenglin (殷正林) was sentenced to 11 months’ imprisonment for defamation in Chongqing in July 2018. The prosecution accused Yin of obtaining a large amount of information that defamed the party and Chinese leaders concerning four issues: the Malaysian aircraft MH370 that went missing on March 8, 2014, with 153 Chinese nationals on board; the wrongful conviction and execution of Nie Shubin; the abnormal death of Lei Yang in police custody; and Guo Wengui, the tycoon mentioned above, now living in the U.S. Yin was said to have spread this negative information using three different Twitter accounts, “seriously harming the image of the party and nation, endangering state security, and disrupting social and public order.”

Also convicted of defamation, Wang Zhiqiang (汪志强) was sentenced to one and a half years’ imprisonment in Benxi, Liaoning. Wang was found guilty of composing 412 tweets that defamed the Chinese leaders, with 637,610 views between June 2016 and September 2018. The judgment stated that his tweets “harmed the nation’s image and seriously endangered state interests.”

Disseminating terrorist, subversive, divisive, and reactionary information

VPN users who share dissenting versions of narratives about Xinjiang could be charged with a different set of offenses. For instance, Shandong netizen Wang Mingde (王明德) was sentenced in 2018 to 15 months’ imprisonment for “fabricating or intentionally disseminating false terrorist information,” a charge stemming from, among other things, his posting messages on Twitter and Facebook about “East Turkestan.” The Chinese government calls “East Turkestan” a terrorist group advocating both violence and Uyghur independence. In another case, Xinjiang resident Tian Weiguo (田卫国) was accused of tweeting two “fake” messages from his account, which has 98 followers. One of his tweets concerned the deadly incident in Shache, Xinjiang, that left 96 dead (including 59 terrorists) on July 28, 2014, according to official accounts. Tian called the incident the “Shache Massacre,” and claimed thousands of people were killed, many of whom were Uyghur women. Tian also called on the UN to look into the incident. In March 2016, Tian was sentenced to three years’ imprisonment for “inciting racial hatred” in Xinjiang’s Ili Autonomous Prefecture.

More recently, Zhou Yongjun (周勇军) has been charged in Dongxing City, Guangxi, with picking quarrels and provoking troubles on the grounds of using overseas social networking media, presumably with the help of a VPN, to disseminate “reactionary information.” This is the fourth time Zhou has been taken into custody since he took part in the Tiananmen Square protests of 1989. Before he was charged with picking quarrels and provoking troubles, Zhou was initially detained for “using a cult to undermine implementation of the law” and then indicted for inciting subversion. Both charges stemmed from his alleged possession of Falun Gong materials, and his critical tweets about the Communist Party.

Read Part II to find out about the crackdown on VPN providers.