Research on the Criminal Imputation Path of Network Service Providers

. Network service providers have taken on a more prominent part in the process of Internet governance in recent years as one of the important subjects of cyberspace. Criminal justice dilemmas like ambiguous semantics of network service providers, a failure to distinguish between different types of network service providers, and difficulties in convicting network service providers frequently arise when it becomes necessary to assess the criminal law of network service providers. In this paper, the author analyzes the reasons behind the dilemma through the legal norm analysis method, such as the diversification of network services and the high-speed development trend of network technology, the difficulty of unifying the classification standards, and the large differences in the types of network services, and the controversial application of new crimes. Based on this, with reference to the relevant provisions of foreign countries, and based on the existing legal environment in China, network service providers should be divided into two types from the subjective and objective aspects. At the same time, the specific semantics, scope of obligations, and scope of criminal imputation under their respective types should be clarified in order to achieve a more reasonable and feasible path of criminal liability fixation, so as to help the judicial authorities define the subject of network service providers more efficiently, and conviction and sentencing more accurately.


Introduction
"Internet+" is presently one of China's significant national strategic plans.On the one hand, network information and digitalization are the key trends of future scientific and technical development and are a significant part of China's hundred-year powerful country plan.On the other hand, various issues have come to light as a result of the Internet's quick expansion.As an important part of the Internet, network service providers have gradually come into people's life after the millennium.Due to a certain lag in the law, there are some problems in practice, such as semantic ambiguity, individual differences, and the difficulty in unifying the current classification standards of Internet service providers.Scholars represented by Sun Wanhuai currently held the opinion that, despite the fact that relevant judicial interpretations had long established the criminal imputation of network service providers, the judiciary undoubtedly still held a cautious wait-and-see attitude from the current overall situation, and there were few examples of the crime of network service providers in practice.[1] Yang Caixia also held the opinion that different categories of network service providers may play varied roles in preserving network order due to their varying levels of proximity to illicit network users and their varying levels of control over network information and information.As a result, it is necessary to create a set of obligation system with complete types, appropriate structures, and order of priority.[2] Some scholars also believe that because network service crimes are based on network technology, "network control" or "technical checks and balances" may be more effective than a strict crackdown, so they advocate abandoning a strict crackdown.[3] Therefore, based on discussing the judicial dilemma and causes of criminal imputation of network service providers, this paper matches the existing legal environment in China with relevant articles at home and abroad, re-divides Internet service providers according to different behavior patterns and element standards, and then explores the path of criminal imputation.

Semantic Ambiguity of Network Service Providers
The concept of the network service provider is mentioned in Article 286-1 of the Criminal Law of China.Later, the article also introduced relevant judicial interpretations in 2015 and 2017 years, and also interpreted the article, but the concept of the network service provider was not clearly explained.Some scholars believe that the reason why they do not explain it is that the law has a certain lag, and the rapid development of the Internet can play a role in the guarantee.If specific explanations are given, the law may need to be revised frequently.Afterward, Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Illegal Use of Information Networks and Assistance in Criminal Activities of Information Networks [4] clearly defined three kinds of "network service providers" in this article, including network access, information release, and various services provided through information networks.The network service providers in this judicial interpretation are more inclined to be large enterprises or Internet companies, but in practice, individuals can also be network service providers due to the particularity of the Internet.Even though the Provisions on the Administration of Internet Electronic Bulletin Services stipulates the rights and obligations of some network service providers, in practice, network service providers often fail to fulfill their responsibilities under various excuses.Especially for some previous cases, such as the "QvodPlayer case", network service providers often excuse themselves with the principle of the safe harbor or the reason that they have fulfilled their responsibilities, in order to avoid criminal responsibility.[5] Therefore, on the basis of existing laws, we should consider clarifying the specific semantics of network service providers.For the consideration of some scholars mentioned above, an "other" can be added at the end of the specific semantics as a guarantee.

Different types of network service providers are not distinguished
Based on the previous question, not only the semantics of network service providers need to be clarified, but also different types of network service providers should be distinguished.Because different types of network service providers provide different services, and cannot be effectively and efficiently regulated with too general a concept.With the rapid development of Internet technology, the number of network service providers has increased dramatically.As for China Internet Information Center, there are hundreds of network service providers in other regions and countries that do not include the Center, who register with CN domain name registration service agencies.There are many types of network service providers, including Baidu and Sohu as the leading search engine, Tencent's WeChat and QQ as the representative of social media, Alipay as the representative of the network payment platform, etc.However, if the semantics are not accurately described and the specific types of network service providers are regulated, it will lead to ambiguity in the criminal imputation of network service providers.Distinguishing different types of network service providers can quickly and accurately allow the general public and many network service providers as well as the judiciary to clarify their rights and obligations.

Difficulty in Convicting Internet Service Providers
Along with the increasingly prominent role of network service providers as public platforms, the public governance of the "private power" of platform companies has become one of the most critical issues in the field of cyberspace governance today [6].It is undeniable that network service providers have played a huge role in promoting the development of the Internet, but once problems arise due to the nature of the network, they face serious consequences such as a wide range of influence, rapid dissemination, difficulty in apprehension, and difficulty in elimination.As in the case of "QvodPlayer", which has been widely debated in the past few years, some scholars believe that the case is a sign that the center of China's Internet regulation has shifted from the majority of Internet users to network service providers, and that "the characterization of network service providers has taken on a strong color of criminalization before confirmation of the crime".After the verdict was handed down in the case, many prominent Chinese scholars fully explored what the platform was, what type of network service provider it was, and whether it could be applied as neutral assistance to information network crimes.Even for a case with such a wide impact, there are still many difficulties in conviction and identification of the subject, which is one of the important reasons why criminal imputation should be explored for network service providers.Although the post-Supreme Court and the Supreme Prosecutor clarified the network service providers later, it is still difficult to convict them.As of August 26, 2022, only five documents have been retrieved from the "Crime of Refusing to Fulfill the Obligation of Information Network Security Management" on the Chinese Judicial Documents Network.Search with the keyword "help information network criminal activity crime" to get up to 32331 search results, and then add the keyword "network service provider" to get one search result, but the case has nothing to do with network service providers in a broad sense.
The crime of refusing to perform the obligation of network security management, with "network service provider" as the subject of crime, has been eight years since it joined the Criminal Law in 2015.Information network security issues repeatedly emerged but failed to effectively improve.While the Internet is a major trend of future development, on the one hand, due to the special nature of the network, if the network service providers are not effectively supervised, the general public's information network security is difficult to be guaranteed, so the criminal imputation of responsibility for network service providers is very necessary.

Diversification of network services and high-speed development trend of network technology
In the face of the difficulties and problems of criminal imputation of network service providers, it is still necessary to seek answers in the "between facts and norms.[7] According to the 50th Statistical Report on the Development of Internet in China released by China Internet Network Information Center (CNNIC) in Beijing, as of June 2022, the number of Internet users in China was 1.051 billion, and the Internet penetration rate reached 74.4%.It shows that the Internet has been closely connected with many elements of daily life, such as consumer payment, travel and transportation, shopping, and other traditional businesses that have been combined with the Internet to become new industries and new models.In the mode of "Internet + everything", the demand for network services is still increasing, and the scope of network services will continue to expand.In addition, the rapid development of network technology also provides the possibility of generating new types of network services.The result of the above two trends is that the number and types of network service providers are increasing.Driven by technology empowerment and power politics, the role, and function of network service providers are undergoing qualitative changes.[8] Faced with the huge volume of existing network services and the potential emergence of a large number of new forms of network services in the future, and considering the high cost caused by repeated legislation or frequent amendments to the law, legislators chose to specify the main constituent element of network service providers in individual articles of law.Although the relevant obligations and the scope of responsibility are stipulated in the form of identity crime, the concept and connotation of identity crime are not explained in detail or further classified.Such an action can make the judiciary expand the interpretation of the way to effectively combat the new network service providers as the subject of crime, to deal with the impact of Internet emerging things on the lag of law.However, it also results in the blurring of the connotation of network service providers and the overly broad extension of the situation, which will give rise to unreasonable free discretionary space for the judiciary, and may have an improper impact on the definition of whether the perpetrator is a network service provider or even a miscarriage of justice, leading to wrongful conviction and sentencing.Such an action can make the judiciary expand the interpretation of the way to effectively combat the new network service providers as the subject of crime, to deal with the impact of Internet emerging things on the lag of law.However, it also results in the blurring of the connotation of network service providers and the overly broad extension of the situation, which will give rise to unreasonable free discretionary space for the judiciary, and may have an improper impact on the definition of whether the perpetrator is a network service provider or even a miscarriage of justice, leading to wrongful conviction and sentencing.

Difficulty in unifying classification standards and large differences in network service types
For the scientific classification of "network service providers", the academic community has not yet formed a consensus or unified opinion.However, many scholars have explored and attempted to classify them according to different criteria.Some scholars proposed the classification of network connection service providers, network platform service providers, and network content service providers according to the criteria of what kind of services the providers provide .[9].Some scholars proposed the classification of service providers for their own information and service providers for others according to the criteria of what kind of objects the providers provide services for .[10]Some other scholars propose the classification types of intermediate service providers, Internet information service providers, and third-party trading platform service providers according to the content of relevant laws in China.When classifying a thing, we should try to make its connotation under each classification item without overlapping each other, and finally achieve the result that the sum of each sub-item extends.Because of the continuous development of the network service industry, it is extremely rare for network service providers to provide services for only one object or only one service.There are many types of network services that can be provided by a single subject.New network service providers are constantly emerging, and the network services involved are also very different.Thinking by using the above classification may lead to an unclear classification of subjects under different types due to their overlapping network service scope.According to this observation, it is difficult to unify the current classification standards, and the above-mentioned classification methods proposed by different scholars have their shortcomings.
The diversity and complexity presented by society in the network era mean that there is a practical necessity to realize the transformation from engineering-style control thinking to ecological-style adaptation thinking.[11] The reality is that a network service provider often has multiple service businesses, and when it meets the criteria of multiple types under a certain classification method, then how to define its nature is a key issue to be considered.If it is only identified as one of the types, whether there will be the absence of legal interest and criminal law evaluation under other types of damage.If it is defined as a subject that meet multiple types, whether this classification is meaningful only to a few providers of network services with a narrow scope, which are the issues that need to be discussed.It can be seen that it is difficult to make an exhaustive classification of network service providers in the current situation of rapid development of the Internet.

There are many disputes on the application of new accusation
The crime of refusing to perform the obligation of information network security management in Article 286-1 and the crime of helping information network criminal activities in Article 287-2 of the Criminal Law Amendment (9) (hereinafter referred to as the crime of helping information) are the embodiment of the criminal law's explicit inclusion of network service providers into the scope of evaluation and the setting of obligations and responsibility boundaries for them.However, there are still many disputes on the judicial application of the above two crimes, resulting in difficulty in imputation.
The current hot topic of research on the criminal liability of network service providers is the crime of refusing to fulfill the obligations of network security management, which is still controversial as a pure omission crime or an impure omission crime, and the specific scope of obligations involved in the accusation.Although there is a corresponding judicial interpretation of the crime later, it is not enough to give clear guidance on the scope of obligations and responsibilities of network service providers.Lots of scholars believe that the sources and contents of information network security management obligations need to be further clarified.Considering the differences in the technical capabilities of network service providers and the cost of supervision, it is generally necessary to limit the scope for substantive interpretation and reasonable allocation of obligations.However, most of these studies only mention the need to determine the scope of obligations, while the specific criminal obligations of network service providers are still unclear.
Meanwhile, the crime is also a typical administrative crime.It is easy to appear in the process of linking administrative and criminal affairs due to administrative pre-procedure, most network service providers will not commit a crime if they only need to make corrections according to the requirements of the regulatory authority.Even if serious consequences are caused, they do not need to bear criminal responsibility, making the crime exist in name only.There are also cases where administrative illegality directly infers criminal illegality, making a large number of administrative illegal acts recognized as crimes.Therefore, most scholars insist on the theory of relative independence of illegal judgment and emphasize the independent value of criminal law evaluation.
The crime of helping information has become a trend of "pocket crime" in recent years.Although Internet service providers are rarely identified as the crime of helping information, they can still be the subject of the crime of helping information.There may be cases of conviction in the future, so there is still value to discuss under what circumstances Internet service providers constitute the crime of helping information.
The nature of the crime of helping information has a significant impact on crime and non-crime.At present, most scholars agree with the view that the helping offender should be the principal offender for the nature of the crime of helping information, but in some cases, there may be a problem that the crime, responsibility, and punishment are not unified.If A wants to carry out online fundraising fraud, it will release relevant information on the B network platform.As an online service provider, the B platform still provides A with a platform account, transfer payment function, and other services knowing this situation.If A terminates the crime later, the punishment may be exempted, but B will be convicted and punished for the crime of helping information.Therefore, from the perspective of the principal offender, the criminal responsibility and punishment are obviously unbalanced.In this case, it is more appropriate for the judiciary to deal with B with the crime of fundraising fraud, rather than the crime of helping information.On the other hand, if we do not take the view of being a principal offender, it is basically impossible to investigate the criminal responsibility of the perpetrator who provides help for network criminal activities with the crime of helping information for the cases where the upstream and downstream criminal facts have not been investigated clearly in reality by applying the traditional accomplice theory.The significance of establishing this crime will be greatly reduced.Therefore, there may be different conclusions on the determination of the nature of the crime of helping information under different circumstances due to various factors.
The construction of the crime of helping information in the subjective aspects of the crime requires knowing perfectly well that others use information networks to commit crimes, so the identification of knowing perfectly well is particularly critical.However, judicial practice on the understanding of knowing perfectly well is more confusing, there are "should know", "may know", "know may" and other different standards of identification, but also requires "two-way meaningful contact".In addition, according to the Interpretation of New Cyber Crime released in 2019, the "knowing perfectly well" identification of the perpetrator of the crime of helping information has adopted the judicial identification rules of presumption, which has also brought about the inversion of the burden of proof.How to correctly apply the presumption rules and the procedure for identifying the facts of the case still need to be further clarified.
The legal operation behavior, legal business behavior or legal behavior of providing network technical services of network service providers are all neutral help behaviors in cyberspace.For example, the "behavior of providing technical help for network crimes" mentioned in Article 287 of the Criminal Law may include neutral help behaviors in some cases.There are still great controversies on the definition of neutrality of help behavior and the details of subjective and objective imputation in the academic circle.
The more responsibility given to the network service providers will hinder the development of network technology and the economy, while excessive management scope will provide them with too much room for improper exemption from liability.The discussion on whether the act of neutral help behaviors is punishable includes the theory of overall affirmation and the theory of limitation, among which the theory of limitation includes the theory of subjectivity, the theory of objectivity, and the theory of compromise.The theory of overall affirmation shows that there are many unreasonable places, so it is seldom approved by scholars.Then which behaviors of network service providers belong to unpunishable neutral help behaviors, or whether all their behaviors should be considered as neutral help behaviors but their behaviors are punishable, which requires specific judgment by the judiciary.For example, the article on the crime of helping information stipulates that "providing technical support such as Internet access, server hosting, network storage, communication transmission, or providing assistance such as advertising promotion, payment, and settlement".
Providing Internet access services is a neutral act of help.However, if you know very clearly that the person you are helping uses this technology to commit a crime, but you still help him, you may commit the crime of helping information.For other acts that are not explained in the legal provisions or judicial interpretations, how the judges analyze the punishability of their neutral help acts depends on the judges' personal understanding and interpretation, so the subjectivity is strong.It is difficult to grasp the rules of whether or not to convict and why to commit a crime.To sum up, it is difficult to convict and sentence network service providers.

Typed network service provider
Internet service providers are divided into two parts by subjective aspects.Foreign laws have clearly classified Internet service providers: in 1996, the United States promulgated the Communications Decency Act (hereinafter referred to as CDA), which divided network service providers into two categories including information content providers and interactive service providers.In 1998, the United States promulgated the Digital Millennium Copyright Act (DMCA), which clearly divided network service providers into four main bodies including temporary digital network transmission, system cache, storage information according to user instructions and information positioning tools under the premise of the application of the safe harbor principle.Germany once defined legal service providers as natural or legal persons who provide, introduce and control network services, and implemented a hierarchical responsibility system, specifically divided into access providers, proxy cache providers and storage providers, which were classified from a functional perspective.It is not difficult to see that the historical classification of Internet service providers in foreign laws is more concise, clear, and clear than the existing classification in China, and the dichotomy idea of CDA is worth learning from.Therefore, this dichotomy model will be highly inclusive and refined to summarize the complex situation of China's Internet service providers and explore its value and significance for China to help identify the subject of information network activities and identify the responsibility.Network service providers can be generally divided into "network intermediate service providers" and "network spontaneous service providers".Network intermediate service providers can be identified as online "middlemen" and provide services for virtual networks.This service can provide, but is not limited to, access, location, storage, and platform services.The specific task of such subjects may include providing information access equipment, channels, places, wiring, etc. for others, and may also include providing storage space, servers, etc. Network spontaneous service providers, namely, the subjects who provide network services from their own will through their own independent declaration of meaning that the key is "spontaneity".The difference between network spontaneous service providers and intermediate service providers is that they have independent spontaneity.If they lack spontaneity, they lose the independence of network service provision, that is to say, they are difficult to exist.For example, pornographic video websites, pirated film and television websites, pirated literature websites, etc., as a kind of network service, their providers carry out this service for their own purposes of profit, dissemination, etc.If they do not provide this service, pirated film and television, pornographic videos, and pirated literature will not exist, and after the intermediate network service providers do not provide intermediate services, their connected "forwarders" and "receivers" will still exist, it just its function of linking.
Network service providers are divided into two parts by objective aspects.As a result, the above dichotomy logic can also be used and continue to dichotomize the network service providers into "network service technology providers" and "network service content providers" according to their objective service attributes.The network service technology provider can have a thorough understanding of the network intermediate service provider.As a technology provider, its main task is network service access, positioning, storage, or platform services.It only needs to be a third person to connect the forwarder and the receiver.The identification of different technical behaviors in different cases will also affect whether they constitute the subject of "network service providers".Therefore, the network technology service provider emphasizes more on the objective aspect.That is to say, the technology provision behavior of the network service provider is more important in the context of the network technology service provider.When identifying the nature of the behavior of network technology service providers, the judiciary is required to conduct specific analysis and consideration of the characteristics and composition of their behavior, and dig out the "third party" in their behavior to make a substantive distinction with the network service content providers and obtain more accurate rulings and make more reasonable rulings.On the other hand, network service content providers can be associated with network spontaneous service providers.For content services, network service providers, including natural persons and organizations, are spontaneous and initiating.Spontaneity is reflected in the fact that network service content providers mainly provide services through their own will.There is no service provided for the needs of an individual, and their service provision is completely spontaneous.Initiation is different from the intermediate service provider.It does not exist and does not destroy the subject it is connected to.If the initiator is missing, the receiver and the forwarder will no longer exist, and the independence of network service behavior will be lost.Such division of network service providers is more helpful to understand the "crime of helping information network criminal activities" stipulated in Article 287 of the Criminal Law.It makes the identification of the subject of this crime more clear and definite, thus making up for the lack of understanding and identification of "Internet service providers" in China to effectively carry out criminal imputation.

The scope of obligations and responsibilities of network service providers from the perspective of dichotomy
Some scholars believe that the consequences of the refusal of most network service providers to perform their security obligations were decreased by interviews and administrative penalties, and the network service providers were forced to rectify by means of fines.The relevant provisions of the Regulations on Interviewing Internet News and Information Service Units issued by the State Internet Information Office recently also specify the number of reasons for being interviewed, including many similar contents to those related to the crime of refusing to perform information network security management obligations [12].The legislator may be for the protection of the development of the Internet, social influence and other aspects of consideration, still hope that the network service providers can correct themselves, if network service providers still do not fulfill their obligations before accepting a fine.Although this can protect the vitality of Internet development to a certain extent, only by distinguishing different types of Internet service providers on the basis of clarifying the connotation and extension of Internet service providers, as mentioned above, can their rights and obligations be clarified.In practice, whether the network service provider fails to fulfill its due network security management obligations or provides helpful activities for the crime, it can better conduct the criminal imputation and emphasize the criminal attribute of its responsibility.[13] After the network service providers are divided into subjective and objective aspects, the following further clarifies the respective obligations and responsibilities of the two different types of network service providers.Since the classification of the subjective aspect can be interpenetrated and mutually understood with the two types of the objective aspect, it will be elaborated from the two types of the more intuitive and specific objective aspect.
Obligations and responsibilities of network service technology providers.This type of network service provider mainly provides neutral technical behavior, and its technical ability to conduct realtime and comprehensive monitoring and analysis of huge network information data is obviously insufficient.On the other hand, as the third person connecting the forwarder and the receiver, if the obligation to monitor the network information is added to it, it will undoubtedly violate the citizens' basic rights such as freedom of speech, freedom of information, personal privacy.Therefore, from the perspective of technical feasibility or realistic feasibility, network service technology providers only need to assume the obligations of "discovery-deletion", user information protection and management, and cooperation with relevant departments to perform their duties, rather than undertaking the obligation to supervise the transmission and storage of information in the network in advance, nor undertake the obligation to actively collect facts or relevant evidence of network illegal activities.This type of network service provider often acts as a helper when it comes to criminal offenses.When there is exact evidence that the network service technology provider conspires with others to commit crimes, it can be convicted and sentenced according to the corresponding crime.It is generally believed that the responsibility can be exempted without knowing about the crime and taking measures to delete the blockade in a timely manner after knowing about it.
Obligations and responsibilities of network service content providers.Because of its spontaneity, this type of network service provider is very clear about the service content provided by itself.Therefore, the "control ability of specific network information data" is stronger than that of network service technology providers, that is, they are quite aware of the illegality of the network information provided and easy to control, and the risks arising from them are their own, so they should bear higher regulatory obligations.Such as ensuring the legality and compliance of the information provided, taking measures to eliminate illegal and inappropriate information, keeping relevant records and reporting to relevant departments.[10] The act of providing illegal information by the network service provider can constitute a separate crime in the form of an active crime.If it is knowing that others provide illegal information or commit illegal acts, it can constitute a crime of helping nature, including the joint crime of traditional crimes and the crime of helping information network criminal activities.It can also constitute a crime of omission that does not perform management obligations, i.e., the crime of refusing to perform information network security management obligations.[14] The scope of exemption shall be strictly limited.

Conclusions
This paper explores the criminal imputation path of network service providers, divides them into subjective and objective aspects through the typification of network service providers, and clarifies the scope of criminal obligations and responsibilities.The development of information networks is urgent, but it is necessary to balance the interests of the state, network service providers, and the general public, and promote China's information networks to continue to advance.On the one hand, the development of data security, information networks, 5G plans, and "Internet+" plans, and other aspects require the development and support of many network service providers.On the other hand, there are more and more network crimes with endless techniques.Without effective governance, the vast number of Internet users and society will certainly cause irreparable losses.Therefore, a reasonable definition of the criminal imputation of Internet service providers can effectively solve the dilemma of today's Internet-related problems.Based on the existing legal environment in China, a more reasonable and feasible criminal imputation path is sought to help the judiciary define network service providers more efficiently and convict and sentence more precisely.