IN RECENT DAYS, THE INTERNET HAS BEEN FLOWING OUT OF SHANGHAI TO AN AI."APITransit station“THE CHIEF OF STATION WAS DETAINED FOR 37 DAYS IN CRIMINAL CUSTODY ON SUSPICION OF SELLING OFFSHORE AI INTERFACE RESOURCES, WHICH WAS CHANGED TO BAIL PENDING TRIAL, AND THE CASE IS STILL UNDER INVESTIGATION. AS SOON AS NEWS EMERGED, A LARGE NUMBER OF SIMILAR PLATFORMS WERE SHUT DOWN AND MOVED, AND THE WHOLE INDUSTRY WAS BOOMING。
There are rumours that this case may be going onOffence of illicit dealingIn the case of prosecution, what is the space for defence that can be sought
What's the business at the stop
A brief description of the operational modalities of such platforms. Because major mainstream models like OpenAI and Claude have regional limitations on mainland China, domestic developers need some thresholds for direct access to their API. So someone saw the need:
Typical mode of operation
1.Access, at low cost, to the interface resources of large models abroad by means of bulk registration accounts, free amounts and even reverse crawling
2.A reverse agent on an overseas server to enable domestic users to access without going over walls
3.The ability to call is then sold in packages, such as “1 dollar for millions of Token” to earn the difference and service fees。
However, some are far more excessive, falsely watered, misrepresenting Token consumption, impersonating models with poor models, and even selling user data for dialogue。
This model is clearly on the red line of law in our country. If criminal responsibility is to be pursued, two charges are often brought in practice:Offence of illicit dealingThe other one is..Provision of computer information system toolsI don't know. The sentences for the two counts are very different and the defence strategy is very different. Let's start with the crime of illegal dealing and see how many stitches this wall can break。
The logic of the prosecution sounds smooth, but every step of the way can be relaxed
If the offence of illicit dealing is prosecuted, the prosecution ' s general approach is as follows:
PROVISION OF AI INTERFACE ACCESS TO DOMESTIC USERS ON A REIMBURSABLE BASIS, UNDER THE CATEGORY “INFORMATION SERVICES”Value-added telecommunications operations;
VAT operations require a VAT operating licence
No permit, thenViolations of national regulations;
Disruption of telecommunication market order, with a relatively large amount of money and compositionOffence of illicit dealing.
This chain looks at the rings, but there's room for doubt at every link。
Five defense gaps, one by one
Sew one
Are “national regulations” really “national regulations”
The offence of illegal dealing must be “in violation of the provisions of the State”. Article 96 of the Penal Code makes it quite clear that this “State regulation” can only beLaws of the National People ' s Congress and its Standing Committee, or administrative regulations, decisions, orders of the State CouncilI don't know. Sector regulations and local regulations cannot be counted。
Zhou Zaiwei's oil sales:: Sale of diesel gasoline without a licence for the production of oil, prosecuted for illegal business. The court finally found that it was only part of the Ministry of Commerce that had violated itSectoral regulations) does not meet the preconditions of the offence of illegal dealing and does not constitute an offence。
Reference cases
IN THE CASE OF THE AI TRANSIT STATION, THE PROSECUTION IS LIKELY TO USE THE TELECOMMUNICATIONS ORDINANCE. THIS REGULATION IS INDEED AN ADMINISTRATIVE REGULATION, SUFFICIENT FOR “NATIONAL REGULATION”. BUT THE PROBLEM IS THAT THE REGULATION WAS BORN WITHOUT EVEN A SMARTPHONE, LET ALONE AN AI-SIZE MODEL. THE TYPE OF VALUE-ADDED TELECOMMUNICATIONS BUSINESS LISTED IN ITTHERE'S NO "AI LARGE MODEL API AGENT."I don't know. Defence counsel may well argue that there is no explicit prohibition in this regulation for such new business。
If the prosecution is based only on the Ministry's Licensing Scheme for Telecommunications Operations (Sector Regulation), it would be simpler to refer directly to article 96 of the Penal Code, which is not sufficiently hierarchical to serve as a basis for conviction。
AI INTERFACE AGENT, IS IT REALLY VALUE ADDED TELECOMMUNICATIONS
EVEN IF THE TELECOMMUNICATIONS REGULATIONS WERE TO BE RECOGNIZED AS “NATIONAL”, WE HAVE TO ASK WHETHER THE AI INTERFACE AGENT IS A VALUE-ADDED TELECOMMUNICATIONS OPERATION
THE PROSECUTION USUALLY RELIES ON “INTERNET DATA CENTRE OPERATIONS” OR “CONTENT DISTRIBUTION NETWORK OPERATIONS”. BUT THINK ABOUT IT, THE CORE OF THE AI TRANSIT STATION IS TO BUY, PACK, SWITCH, AND EARN A SERVICE FEE FOR THE TECHNICAL SKILLS OF THE OFFSHORE AI SERVICES, WHICH IS MORE LIKE, IN ESSENCE“Technic two-track dealer” or “SaaS polymer”Instead of operating a basic telecommunications network. It has a considerable distance from the “communication pipeline” of traditional telecommunications operations。
There's one more thing that can be confused:AI TRANSIT STATION ≠ VPNI DON'T KNOW. THE CORE VIOLATION OF TRADITIONAL VPN IS THAT IT IS ILLEGAL TO OPERATE TELECOMMUNICATIONSEstablishment of an international channel and provision of a universal wallbreaking serviceI DON'T KNOW. AI TRANSIT STATIONS, ON THE OTHER HAND, USUALLY TRANSMIT ONLY SELECTED AI INTERFACES AND DO NOT PROVIDE UNIVERSAL ACCESS TO OFFSHORE NETWORKS. THE TWO BUSINESS PATTERNS ARE FUNDAMENTALLY DIFFERENT AND CANNOT BE DIRECTLY TRANSPOSED TO THE VPN CONVICTION LOGIC。
AND SO FAR, THERE IS NO "AI API RESALE LICENSE" IN OUR COUNTRY. ANY INTERNET API MIDDLE LEVEL SERVICE IS DEFINED AS VALUE-ADDED TELECOMMUNICATIONSPrinciple of clarity of criminal lawNot really。
Sew three
I can't put anything in there
THE ARTICLE OF THE LAW MOST LIKELY TO BE USED TO CONVICT THE AI TRANSIT STATION IS ARTICLE 225 (4) OF THE PENAL CODE: “OTHER ILLEGAL ACTS WHICH SERIOUSLY DISTURB THE ORDER OF THE MARKET”. IT'S TYPICALBottom ClauseIt is also the source of the suspicion that the crime was “pocked”。
The acquisition of corn without a license by Wang LijunOne farmer resold corn without a warrant and was sentenced at first instance. After the Supreme People's Court ordered a retrialAcquittedI don't know. Reason: Although administrative regulations have been violated, they “have not yet reached the level of serious disruption of the market order and are not comparable to the social harm associated with the offence of illegal dealing”。
:: Supreme Law Guidance Cases
This establishes a principle: the application of the bottom-up clause depends on“Is there a clear judicial interpretation”(Formal requirements)"Is it similar to the acts listed above?"(Substantive requirements)。
NONE OF THE EXISTING JUDICIAL EXPLANATIONS WAS EXPLICITLY INCLUDED IN THE “AAI LARGE MODEL API AGENT”. AND ITS SOCIAL HAZARDS ARE PROBABLY FAR FROM THE LEVEL OF TOBACCO, MEDICINE AND FINANCE. THE AI TRANSIT STATION MEETS PRECISELY THE NEED FOR DOMESTIC DEVELOPERS NOT TO USE THE BLANKS OF CERTAIN AI FUNCTIONS, BUT TO LOWER THE TECHNOLOGY THRESHOLD. WHAT IS THE MARKET ORDER THAT IT “DISTURBED”? ALL OF THIS REQUIRES EVIDENCE FROM THE PROSECUTION。
Sew four
It's not that serious
The crime of illegal dealing isPredatorIN ORDER TO QUALIFY AS AN OFFENCE, IT MUST BE “SERIOUS”. HOWEVER, THE AI TRANSIT STATION IS NEW AND THERE IS NO SPECIFIC JUDICIAL INTERPRETATION OF ITS “GRAVITY” THRESHOLD。
At this point, you'll have to be more nuanced。“Illicitly operating amounts” and “Irregular proceeds” are two different thingsI DON'T KNOW. THE PROCEEDS OF THE OFFENCE MUST BE NET PROFITS AFTER DEDUCTION OF DIRECT REASONABLE EXPENSES. THE COST OF BUYING THE API INTERFACE FROM ABROAD, RENTING THE SERVERS, BANDWIDTH AND LABOUR COSTS SHOULD BE DEDUCTED. THE FLOW OF USER-VALUE WATER MUST NOT BE TREATED DIRECTLY AS THE PROCEEDS OF AN OFFENCE。
There's another legal principle"From old to light"I don't know. There has been a precedent in which a case at first instance is sufficient to meet the old criteria, and the new judicial interpretation during the second trial has raised the threshold of admission, resulting in a court of law directly changing the acquittal. If there is a new change in the relevant criteria during the trial, it will be taken at the first opportunity。
IN ADDITION, IF THE STATION CHIEF ' S RESOURCES INCLUDE AN API QUOTA THAT IS FORMALLY PURCHASED, THIS WOULD AMOUNT TO NORMAL RESALE, NOT ILLEGAL ACQUISITION. IN CALCULATING THE AMOUNT, THIS PART MUST BE EXCLUDED. ONLY FREE, REVERSE CLIMBS ARE THE REAL SOURCES OF VIOLATIONS。
Sew five
He probably didn't feel guilty
The crime of illegal dealing is typicalStatutory offencesI DON'T KNOW. IT IS NOT AS NATURAL AND MORALLY OFFENSIVE AS IT IS INTENTIONALLY INFLICTED, AND THE ILLEGALITY DERIVES ENTIRELY FROM THE PROVISIONS OF ADMINISTRATIVE REGULATIONS. WITH REGARD TO THE NEW BUSINESS THAT HAS EMERGED IN RECENT YEARS AS AI TRANSITS, WITH VAGUE INDUSTRY RULES AND UNCLEAR REGULATORY BOUNDARIES, MANY STATION CHIEFS MAY FEEL THAT THEY ARE DOING TECHNICAL SERVICESI didn't realize I could have broken the lawI don't know. The absence or weakness of this “criminality perception” is also an important subjective ground in the legal defence of the offender。
If the station commander had been operating in public, using his real identity and contact, and had not been hiding, it would have shown that he had no subjective knowledge of the offence. Compared to the black-and-shell production of lot numbers, deciphering interfaces and re-selling data, there is also a marked difference in subjectivity. This can vary in terms of both conviction and sentencing。
In addition to hardcore, there's a way to save the country
In judicial practice, many courts are in fact more inclined to find another charge in relation to the overturning agents and the transmission of such acts through the interface -Provision of procedures for intrusion, illegal control of computer information systems, instrumentalities offences(Article 285, paragraph 3, of the Penal Code)。
Why is this charge better for the client? Look at the comparison of sentences:
Current allegations
Offence of illicit dealing
SeriousFive yearsParticularly serious5-15 years
♪ For application ♪
Provision of computer information system tools
SeriousThree yearsParticularly serious3-7 years
Maximum penalty15 years down to 7 yearsThe gap is huge. If the technical means of the defendant do meet the requirements of the offence (e.g. the geographical limits of the construction of a counter-advertising agent to a service provider outside transit, they can be regarded as providing an “intrusive” instrument). When the situation is extremely disadvantaged, the minor offence may be claimed。
VPN ET ALTHE COURT EVENTUALLY CONVICTED THE PROVISION OF A COMPUTER INFORMATION SYSTEM TOOL BECAUSE THE AMOUNT OF ILLEGAL BUSINESS DID NOT MEET THE CRITERIA. EVEN THE TRADITIONAL VPN DOES THAT, NOT TO MENTION THE AI TRANSIT STATION
Reference cases
But if the perpetrator's actions are merely “formally bought and resold”, and there is no technical means of circumventing the restrictions, there are serious questions as to whether the minor offence constitutes a crime that is completely historicalNot guiltyGo in the direction。
It's a procedural braid
Entities are spears, procedures are shields. In the Shanghai case, the fact that a person was detained for 37 days on bail pending trial is in itself an indication of the risk that the investigative authorities may not find the available evidence hard enough to meet the “possible sentence of imprisonment above” required by the arrest. It's a defenseWeak evidenceThe indirect basis。
In the investigation phase, we need to step in. FocusThe forensics of electronic data is illegalI don't know. Transaction records, server logs, user-charge records, all of which are electronic evidence. Did the extraction process follow the rules? Was the defendant's statement voluntary? Are you tired of questioning? Thirty-seven days of detention, such cases in particular need to be carefully verified。
New technologies and old criminal law, where are the borders
I'M NOT SURE I CAN DO THATCombination:
First floor
Defence of innocence: There is doubt about the characterization of the bite business, the norm cited is not “national regulation”, the amount is not up to standard and the order is not disturbed。
Second floor
Light plea(b) Minor offences for which the maximum penalty is sought for a period of only seven years (procedures for intrusion, illegal control of computer information systems, instrumental offences), with a reduction in the amount of the proceeds of the offence。
Third floor
Defence of sentencing(C) PLEADINGS OF GUILTY PLEAS, REFUNDS OF DAMAGES, FIRST-TIME OFFENDERS, CESSATION OF CONDUCT, SHORT-TERM OPERATION, AND LIMITED SOCIAL HARM, IN THE CONTEXT OF THE POLICY CONTEXT IN WHICH THE STATE IS NOW STRONGLY ENCOURAGING THE AI INDUSTRY TO SEEK SUSPENDED SENTENCES OR EVEN PARDON。
AT THE END OF THE DAY, THE A.I.T. CASE, YESNew business collisions with old lawI don't know. The absence of license plates “never natural amounts to “illegal business”. Where the boundaries of criminal law should be drawn is the most fundamental issue in this confrontation。
This paper is intended for study studies only and does not constitute a case-specific legal opinion。