Source: Data Governance Garden April 25, 2025, 12:10 Shanghai
In the context of a global network landscape profoundly reshaped by digital technology, the use and legal status of VPNs, as technical tools for bypassing network access restrictions, have sparked continuous debate. From a technical perspective, a VPN reconstructs the network access path through encrypted tunnels and routing forwarding mechanisms. At the legal level, China’s current cybersecurity legal framework imposes strict restrictive regulations on the qualifications of network service providers and the management of information content. In practice, it is common for individuals to use VPNs to “scale the wall” to look up academic literature, access overseas websites, and engage in other similar activities. There is a significant divergence of opinion in both theoretical and practical circles regarding the legality of such behavior, necessitating further in-depth discussion.
I. What is “Scaling the Wall”?
To block and filter illegal information from abroad and effectively curb its spread within the country, China has established corresponding security review measures, namely the “Great Firewall.” The so-called “wall” is a general term for multiple sets of network censorship systems that review and filter internet content. The technical measures adopted mainly include IP blocking at national gateway, keyword filtering and blocking on backbone routers, domain name hijacking, and port blocking. What we refer to as “scaling the wall” is the use of technical means to get over the firewall set up for network monitoring and censorship, bypassing the corresponding IP blocking, content filtering, domain name hijacking, etc., thereby achieving access to the relevant network content.
II. Methods Used for “Scaling the Wall”
Based on the layer at which the “wall-scaling” service technology operates in data communication, these services can be divided into the following three categories:
- Application-layer-based HTTPS proxy: Connects to an overseas proxy server through a web browser to access content on foreign websites.
- Session-layer-based Socks5 proxy: The principle is similar to the former, but it can support access to more network protocols.
- Network-layer and data-link-layer-based VPN (Virtual Private Network) technology: Achieves access to overseas website content by constructing an encrypted tunnel, supporting the largest number of network protocols.
The network proxy technologies used in the first two models are distinctly different from VPN technology. However, because VPN technology is the most widely used in “wall-scaling” services in China, many netizens use the term “VPN wall-scaling” to refer to all different types of network “wall-scaling” services.
III. Legal Determination of an Individual’s Use of a VPN for “Scaling the Wall”
Relevant Chinese laws and regulations are mainly concentrated in the Interim Provisions on the Administration of International Networking of Computer Information Networks (2024 Revision) (hereinafter referred to as the “Interim Provisions”) and the Implementing Measures for the Interim Provisions on the Administration of International Networking of Computer Information Networks (hereinafter referred to as the “Implementing Measures”).
Article 6 of the Interim Provisions on the Administration of International Networking of Computer Information Networks (2024 Revision): “Computer information networks that directly carry out international networking must use the international ingress and egress channels provided by the national public telecommunication network. No entity or individual may establish or use other channels for international networking.” Article 10: “When computers or computer information networks used by individuals, legal persons, and other organizations (hereinafter collectively referred to as users) need to connect to international networks, they must do so through an access network. Before the computers or computer information networks mentioned in the preceding paragraph connect to an access network, they shall obtain the consent of the access network provider and complete registration procedures.” Article 7 of the Implementing Measures for the Interim Provisions on the Administration of International Networking of Computer Information Networks: “Computer information networks within China that directly carry out international networking must use the international ingress and egress channels provided by the national public telecommunication network of the Ministry of Posts and Telecommunications. No entity or individual may establish or use other channels for international networking.” Article 5 of the Measures for the Security Protection Administration of International Networking of Computer Information Networks (2011 Revision): “No entity or individual may use international networking to produce, reproduce, consult, or disseminate the following information: (1) Inciting resistance to or undermining the implementation of the Constitution, laws, or administrative regulations; (2) Inciting the subversion of state power and the overthrow of the socialist system; (3) Inciting the division of the country or undermining national unity; (4) Inciting ethnic hatred or discrimination or undermining ethnic solidarity; (5) Fabricating or distorting facts, spreading rumors, and disturbing social order; (6) Promoting feudal superstitions, obscenity, pornography, gambling, violence, murder, terrorism, or abetting crime; (7) Openly insulting others or fabricating facts to slander others; (8) Damaging the reputation of state organs; (9) Other acts that violate the Constitution, laws, or administrative regulations.”
How should “other channels” in Article 6 of the Interim Provisions be interpreted?
Article 3 of the Implementing Measures defines “international ingress and egress channels” as “the physical channels used for international networking.” Therefore, the “other channels” referred to in Article 6 of the Interim Provisions should be limited to physical channels that can bypass the international gateways, including specific methods like privately establishing international communication gateways or privately setting up cross-border communication lines. However, whether using VPN technology or network proxy technology, the data resources from users accessing overseas websites still rely on the access and backbone networks built by basic operators and are transmitted through existing international gateways. They do not bypass or separately build physical channels and thus do not fall under the category of “other channels” in the Interim Provisions.
Furthermore, this interpretation is supported by the Overall Plan for Promoting High-Level Institutional Opening-up of the China (Shanghai) Pilot Free Trade Zone by Aligning with High-Standard International Economic and Trade Rules (Guo Fa [2023] No. 23), issued by the State Council on November 26, 2023. Article 26 stipulates that “on the premise of complying with network management systems, consumers may use terminal equipment that does not cause harm to the network to access the internet and use services and applications available online.” This indicates that, at the national level, China is actively promoting the orderly flow and reasonable use of cross-border data through institutional optimization and rule improvement, sending a policy signal that encourages lawful and compliant acquisition of cross-border network information and data. This shift reflects China’s governance wisdom in cyberspace, which is to both firmly uphold the bottom line of national security and strive to balance the release of the value of data elements with the protection of citizens’ legitimate rights and interests, rather than adopting simple control or containment strategies.
In addition, other administrative regulations such as the Telecommunications Regulations of the People’s Republic of China and the Administrative Measures on Internet Information Services involve the licensing and approval of international networking business services. The notice from the Ministry of Industry and Information Technology on Cleaning Up and Regulating the Internet Network Access Service Market stipulates that “without the approval of the telecommunications authorities, no one may establish or lease dedicated lines (including Virtual Private Networks – VPNs) or other channels to carry out cross-border business activities.” These are all related to the provision of “wall-scaling” tools that may involve illegal provision of commercial telecommunications services and do not concern restrictions on individual citizens using “wall-scaling” tools to access overseas websites.
It is worth noting that regulatory agencies in many localities have frequently imposed administrative penalties on individuals for “scaling the wall,” citing the Interim Provisions and its Implementing Measures, resulting in a considerable number of enforcement cases. At the same time, in the judicial field, some courts have directly ruled civil contracts involving “wall-scaling” to be invalid, based on the grounds of “violating mandatory provisions of administrative regulations.” Individual cases may lead to legal interpretation and application that deviate from the principles of the rule of law, which not only affects the justice of individual cases but also undermines the unity and authority of the legal system. In view of this, there is an urgent need to conduct a systematic review of “wall-scaling” behavior from a legal perspective to promote the precision and legitimacy of enforcement and application.
In summary, the act of an individual simply using VPN technology to “scale the wall” to access overseas websites is essentially within the scope of a citizen’s legitimate rights. Provided that it does not violate the prohibitive provisions of the law, it does not warrant evaluation under criminal law. From the perspective of the essential function of law, its core value lies in regulating behaviors that cause substantial harm to national security, social order, and public interests, rather than indiscriminately restricting the basic freedoms of citizens. For “wall-scaling” behavior solely for the purpose of browsing information, regardless of whether the content aligns with the standards of public order and good customs, as long as no actual socially harmful consequences are produced, public authorities should avoid excessive intervention, in accordance with the principle of last resort in criminal law. In other words, the determination of the illegality of an act should follow the core element of the infringement of legal interests (Rechtsgut), meaning the focus should be on whether the act causes substantial harm to national sovereignty and security, public interests, or the legitimate rights and interests of others, rather than taking the technical means itself as the sole criterion for determining illegality. Only by adhering to this logic of determination can a dynamic balance be achieved among national security, public interest, and the protection of citizens’ rights in cyberspace governance.
References
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