Disappearing Government Records Show Police Ordering People, Companies to Stop Using Foreign VPNs

China's state sponsored media has long made it clear that foreign VPNs are not legal. For example, the Global Times wrote in 2012:

Residents in China have found logging into their Facebook and Twitter accounts increasingly difficult in recent days, after several popular VPN (virtual private network) companies have alleged that China's Great Firewall (GFW) has been upgraded. However, officials and experts in China's Internet industry have said that it is illegal for foreign companies to operate a VPN business in China.

Three overseas VPN service providers, Astrill, Witopia and StrongVPN apologized Thursday that their service to residents in the Chinese mainland has been blocked due to a recent upgrade of the GFW. Astrill claimed that most VPN protocols have been blocked,  and that many foreign companies have been influenced.

Fang Binxing, designer of the GFW, told the Global Times Thursday he did not know of any upgrade to the firewall.

"As far as I know, companies running a VPN business in China must register with the Ministry of Industry and Information Technology. I haven't heard that any foreign companies have registered," Fang said.

Unregistered VPN service providers are not protected by Chinese laws, and any company running a VPN business should realize they have a responsibility to register, he said.

An employee from the Ministry of Industry and Information Technology, surnamed Li, also confirmed that only Chinese companies and Sino-foreign joint ventures can apply to establish a VPN business.

See: "Foreign-run VPNs illegal in China: govt," December 12, 2012, https://www.globaltimes.cn/content/750158.shtml

Over the past several years there has also been a growing body of case law in China addressing the (il)legality of VPNs that are not provided by telecommunications carriers licensed  to operate in China. Courts have always been clear that providing unlicensed VPN services to others could violate a number of PRC criminal laws. For example, in State v. Liu Bingyang (刘冰洋刑事判决书, (2017)豫1329刑初556号), Liu was found to have violated Articles 285(3) of the "Criminal Law of the People's Republic of China," by "providing programs and tools for the intrusion into and illegal control of computer information services" when he "used a website of his own construction XX to distribute information about Shadowsocks software and download links to users making payments to defendant Lin Bingyang through third party platforms." The court stated that "Shadowsocks" software and services which the defendant illegally sold could circumvent the monitoring of China's Internet firewall, and illegally access foreign websites, receive and view illegal videos, and receive and listen to illegal broadcasts." See: https://blog.feichangdao.com/2018/03/prc-court-unauthorized-great-firewall.html

It has also been quite common to see courts cite a defendant's use of "wall-climbing" software as evidence of their guilt in relation to other offenses, usually involving posting or accessing content the court deemed to be illegal. For example: 

• State v. Tian Weiguo (田卫国刑事判决书, (2016)新4003刑初5号): "Tian Weiguo used wall-climbing software to register on the foreign website 'Google,' and reposted false information with the content 'Xinjiang Shache Uighurs have been massacred.'" See: https://blog.feichangdao.com/2017/03/court-cites-gfw-circumvention-software.html
  
• State v. Jiang Kun (姜坤刑事判决书, (2019)黑2701刑初71号) "The indictment of the People's Procuratorate of Jiagedaqi charged defendant Jiang Kun with using wall-climbing software to browse the foreign website Twitter. . . . From 2014 to the present, Jiang Kun used computers and mobile phones to distribute, vilify, and attack Party and State leaders on his foreign Twitter account. There were a total of 1,434 posts with harmful information which harmed the nation's image, seriously jeopardized the nation's interests, and caused a negative impact internationally." See: https://blog.feichangdao.com/2020/05/court-jails-man-for-8-months-for-tweets.html
  
• State v. Duan Zheng (段铮刑事判决书, (2017)京01刑初69号): "In November 2016, he used wall-climbing software on his mobile phone to access a foreign video website called "theYNC." On that website he watched seven violent terrorist videos." See: https://blog.feichangdao.com/2017/09/man-jailed-seven-months-for-saving-isis.html

A question remained, however: Is it illegal to simply use a foreign VPN to access ostensibly legal content on foreign websites?

That question was answered in the affirmative this year in a series of articles by Wang Yuyang (王宇扬) posted on Tencent's Wexin:

• "Is Individual Use of VPNs for "Wall-Climbing" Illegal?"  个人使用vpn"翻墙"是否违法？ , May 2, 2020.
• "A Normative Interpretation of the Concepts of 'International Access Channel' and 'Access to the Networks” - Further Discussion on the Erroneous Application of Law on Administrative Punishments for 'Wall-Climbing'," “国际出入口信道”、“接入网络”概念的规范解释——再论“翻墙”行政处罚系适用法律错误 , August 7, 2020.
  
• "'Wall-Climbing' Postscript (1) - Addendum - Some Thoughts After Three Months of Studying Issues Involving the Administrative Punishments Law"  “翻墙”文后记（一）补遗——历时三个月的行政法问题研习感言 ,  August 13, 2020.
  
• "'Wall-Climbing' Postscript (2) - The Colorful Mysteries of Administrative Punishments,"  “翻墙”文后记（二）——行政处罚的神秘主义色彩, June 21, 2020.
•  "'Wall-Climbing' Postscript (3) -  A 'Guide' to the Framework of the 'No Penalty for Defense' System," “翻墙”文后记（三）——“申辩不加罚”制度的架空“指南”, July 22, 2020.
• "'Wall-Climbing' Postscript (4) - A Guide for Applying for Administrative Reconsideration for Those Punished for Wall-Climbing (With Sample Application),  “翻墙”文后记（四）——针对翻墙处罚的行政复议申请指南（附申请书样例）, July 29, 2020. 
  
• Regarding the Phased Nature of Searcing for 'Wall Climbing' Punishment Cases - 50 Cases of Punishment and 1 Civil Case, 关于“翻墙”处罚的阶段性案例检索——处罚50例、诉讼案件1例, August 4, 2020, 
  
• "It Is an Undisputed Fact that Wall-Climbing is Illegal, In August Alone, Zhejiang Province had 18 administrative penalties for 'Individual Wall-Climbing' (With 60 Cases Over the Whole Year) 「翻墙违法是无可争议的事实」浙江省仅8月份“个人翻墙”行政处罚达18起（全年60例）, September 4, 2020.
  
• "The Entryway to the Zhejiang Government Services Website's 'Open Information on Administrative Punishments Outcomes' Has Been Shut Temporarily," 浙江政务服务网“行政处罚结果信息公开”系统入口遭临时屏蔽（文末附既往材料备份链接）, October 30, 2020.

Wang documented dozens of examples of police apprehending and punishing inviduals solely for using VPNs. In each of the cases there was no claim either that the individuals posted anything illegal, or that the information they were accessing was illegal. In some cases the VPNs were being used to play games.

Below are full translations of three entries taken from the Zhejiang Government Services website's "Open Information on Administrative Punishments Outcomes":

Majin Police Precinct, Public Security Bureau of Kaihua
Administrative Punishment Decision
Kai Public (Ma) Administrative Punishment Decision [2019] No. 2019150842

Date Administrative Punishment Issued: September 27, 2019

Main Illegal Facts: From June 2019 to September 2019, Yao Zenglei used VPN software to illegally access international networks while playing the game “Ace Fishing: Wild Catch” on her mobile phone. There was no profit involved. Yao Zenglei’s behavior constituted unauthorized use of non-statutory channels for international networking

Category and Basis of Administrative Punishment: In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" it was decided to give Yao Zenglei a warning as an administrative punishment.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.

Chengguan Police Precinct, Public Security Bureau of Changshan, Zhejiang
Administrative Punishment Decision
Chang Public (Chengguan) Administrative Punishment Decision [2020] No. 005601

Date Administrative Punishment Issued: September 14, 2020

Main Illegal Facts: From 2014, 2015 to September 6, 2020, Zhang Liping downloaded wall-climbing software on her personal mobile phone and utilized the software to log onto the overseas "Twitter," "Facebook," "youTube," "instagram," etc. to browse various kinds of information. There was no financial gain. She was apprehended by our bureau on September 14, 2020. Zhang Liping's actions constitute unauthorized use of non-statutory networking channels.

Category and Basis of Administrative Punishment: In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" it was decided to give Zhang Liping a warning as an administrative punishment.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.

Jiefang Police Precinct, Dinghai District, Public Security Bureau of Zhoushan, Zhejiang
Administrative Punishment Decision
Zhou Ding Public (Jie) Administrative Punishment Decision [2020] No. 016921

Date Administrative Punishment Issued: October 24, 2020

Main Illegal Facts: From the first half of 2019 through October 2020, Zhang Tao searched and downloaded the wall-climbing software "LANTERN" using Baidu, and repeatedly used the "LANTERN" wall-climbing software to illegally browse the Wikipedia website for information. On October 24, 2020, Zhang Tao was apprehended by the public security agency in Room X, Unit X, Building X, Mingzhuyuan, Huannan Street, Dinghai District.

Category and Basis of Administrative Punishment: This Precinct believes that Zhang Tao illegally used mobile phone wall-climbing software to access international networks in order to inquire about relevant information. His action constitutes: Unauthorized establishment and use of non-statutory channels for international networking, and shall be subject to administrative punishment according to the law. In accordance with the provisions of Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" and based on the circumstances of this case, it was decided to give Zhang Tao a warning as an administrative punishment, and he was ordered on the spot to stop making illegal connections to the international network.

Method of Execution and Time Limit of Administrative Punishment: Reprimanded on the Spot.

 

Police have also ordered companies to stop using foreign VPNs, again citing Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks." The screenshots below show that police ordered several companies to stop using Astrill and other VPNs and issued the companies official reprimands. There was no indication that the companies was using their VPNs to access foreign websites (as opposed to say, using them for video conferencing or exchanging files).

 

Articles 6 and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks" provide:

Article 6. To carry out international networking of computer information, the output and input channels provided by the Ministry of Posts and Telecommunications in its public telecommunication network shall be used. No units or individuals shall establish or use other channels for international networking on their own accord.
Article 14. Those that violate stipulations in articles 6, 8 and 10 shall be ordered by public security departments to stop networking, with a warning issued to them. They may also be fined an amount up to 15,000 yuan. If they have earned any illegal income, said income shall be confiscated.

The police's application of Articles 6 and 14 has been explicitly endorsed by courts in China in both civil and administrative punishment cases. For example:

Panxing Ximin v. Google LLC (潘⾏紫旻与⾕歌有限责任公司⽹络侵权责任纠纷⼀审民事判决书, （2018)皖0291民初4662号): Wherein the court held that any evidence gathered by the plaintiff using ExpressVPN should be excluded by the court because its collection violated Article 6 of the Interim Provisions of the People's Republic of China on the Management of International networking of Computer Information:

关于原告潘行紫旻提交光盘中的屏幕快照、视频。根据《中华人民共和国计算机信息网络国际联网管理暂行规定》第六条规定，“计算机信息网络直接进行国家联网，必须使用邮电部国家公用电信网提供的国际出入口信息。任何单位和个人不得自行建立或者使用其他信道进行国际联网”。而本案中原告潘行紫旻提交的屏幕快照、视频显示，其是在中国使用ExpressVPN访问了被告谷歌有限责任公司经营的Gmail邮箱，并进行了相关邮件内容的查阅，违反了前述行政法规的规定，本院依法不予采信。

Lai Liangping v. Public Security Bureau of Shanghang (赖亮平行政判决书,（2019）闽0803行初36号): 

With respect to the question of plaintiff Lai Liangping’s claim that defendant Shanghang County Public Security Bureau issuing the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision on June 28, 2019, ordering him to cease networking and giving him a warning was once again imposing administrative punishment on him, and constitutes double jeopardy. An investigation showed that the Hang Public (Lufeng) Administrative Punishment Decision [2019] No. 00031 administrative punishment decision issued by defendant Shanghang County Public Security Bureau was with respect to Lai Liangping’s violation of the provisions of Articles 6(2) and 14 of the "Interim Provisions on the Administration of International Networking of Computer Information Networks of the People's Republic of China" and was an administrative punishment of ceasing networking and a warning for the unlawful action of “climbing the wall” to access foreign websites. The laws and regulations upon which it was based were not the same as the distinct administrative actions that are the subject of the lawsuit, and was a separate distinct administrative action, and therefore does not constitute double jeopardy. The plaintiff’s claim is not consistent with the facts, and is not supported in accordance with the law.

See: https://blog.feichangdao.com/2020/08/lai-liangping-v-shanghang-public.html

Readers wishing to conduct their own research regarding the aforementioned cases should note the following:

Restricted Access to Court Judgments: The texts for the court cases cited in this post were retreived from the Supreme People's Court's China Judgments Online database (裁判文书网, https://wenshu.court.gov.cn) . However, beginning on September 1, 2020, anyone wishing to use the  China Judgments Online database must first register using a mobile phone number. For this reason I have not included any links to cases in that database, because they will not work for many readers.

Disappearing Administrative Punishment Decisions: In November 2020, the Zhejiang Government Services website's "Open Information on Administrative Punishments Outcomes" (http://www.zjzwfw.gov.cn/zjzw/punish/frontpunish/showadmins.do) removed cases relating to "Illegal Use of Non-Statutory Networking Channels." The first screenshot below shows that in September 2020 a search for the term "信道" ("Channels") returned 111 search results, and the first page of results was all cases involving "Illegal Use of Non-Statutory Networking Channels" (擅自建立、使用非法定信道进行国际联网). The second screenshot shows that by November 2020, however, the same search only returned 12 results, none of which related to cases involving "Illegal Use of Non-Statutory Networking Channels." For this reason I have not included any links to cases in that database, because they currently resolve to a 404 page.

This screenshot appeared in "It is an Undisputed Fact that Wall-Climbing is Illegal, In August Alone, Zhejiang Province had 18 Administrative Penalties for 'Individual Wall-Climbing' (With 60 Cases Over the Whole Year)," Wang Yuyang, September 4, 2020,.

This screenshot was taken by the author on November 7, 2020