Can technological neutrality be used as an effective defense in criminal cases? (II) Limitations of application of technological neutrality in the field of criminal law and defense ideas

Take the Qvod case as an example

Author: Lawyer Shao Shiwei

In recent years, Mr. Shao has represented many cases where programmers or technical teams were held criminally liable for providing technical services, such as:

• Represented a technology company legal person in a case where he was charged with aiding and abetting crime for providing software development services;
• Acted as agent for a case in which an NFT digital collection platform was charged with fraud;
• Acted as agent for a well-known Web3 information platform in a case where enforcement procedures were initiated in a different place due to compliance issues;
• Acted as agent for a member of the founding team of an exchange (CTO) suspected of opening a casino (the amount involved exceeded 100 million yuan)
• Acted for a technical team that provided payment and settlement services to an online gambling platform and was accused of opening a casino (the amount involved was billions)
• Acted as agent for a loan assistance company’s technical staff who was charged with suspected fraud (the amount involved exceeded 100 million yuan)

The commonality of the above cases, or the question that lawyers always have to deal with when formulating defense strategies for such cases, is:

Can we use “technological neutrality” as an excuse to obtain lighter sentences, reduced punishments, or even innocence for the parties involved?

Depending on the different charges and specific circumstances of the case, lawyers’ defense opinions on “technical neutrality” are often personalized. The defense ideas for the client’s behavior itself are actually the skeleton of the defense, but what really determines the depth of the defense is the foundation behind it - the original intention of the legislator, the evolution of the legal provisions, and the logic of the application of this principle in specific judicial judgments.

Only by standing at a more macro perspective of institutional evolution and understanding the judicial function positioning of the principle of technological neutrality in different periods can defense lawyers provide the judges with a credible reasoning path in highly controversial cases with ambiguous legal application. A truly powerful defense is to "make the judges willing to walk the path you have paved."

Based on this, this article will start from typical cases at home and abroad, systematically sort out the historical evolution and judicial evolution of the principle of technological neutrality, analyze the application attitude and judgment standards of this principle under the Chinese legal system, and finally return to the criminal law context to discuss the defense ideas and legal boundaries of criminal cases involving technology.

I Author: Lawyer Shao Shiwei

Looking back at the above article “ Can technological neutrality be used as an effective defense in criminal cases? (I) The judicial evolution and legal application context of technological neutrality ”, we started from the institutional origin of the principle of “technological neutrality” and combined with foreign cases such as the Sony case and the Grokster case to sort out the development context and application boundaries of this principle in the field of intellectual property rights. We also analyzed China’s judicial attitude in determining platform liability by taking institutional structures such as the “safe harbor principle” and the “red flag principle” as examples.

It can be seen that the principle of technological neutrality is essentially an institutional response made by the law to protect innovation and balance responsibilities when facing technological development. However, this principle is relatively loose in the field of private law, but its scope of application is significantly compressed when it comes to criminal justice.

3. The Severe Limitations of Technological Neutrality in the Field of Criminal Justice

In the field of criminal justice, its application is actually strictly limited. Let us start with the 2016 Qvod case, which was the first benchmark case in China to place the principle of technological neutrality in the field of criminal offenses for in-depth discussion.

1. Qvod was involved in the case of spreading obscene materials for profit

Qvod was founded in December 2007. The company is positioned as a developer of online streaming media technology. Its flagship product, Qvod, uses P2P technology and supports functions such as downloading and playing, source sharing and high-speed downloading. After 2011, Qvod became the player software with the largest market share in the country. In September 2012, the total number of installations exceeded 300 million (while the number of Internet users in China was 538 million at the time). In 2014, the installation volume covered 80% of Internet users.

In 2016, Qvod and its CEO Wang Xin were charged with disseminating obscene materials for profit, and founder Wang Xin was sentenced to three years and six months in prison.

In this case, Wang Xin put forward the defense view that "technology itself is not shameful" in court. His lawyer cited the principle of "technology neutrality" and believed that QVOD, as a technology provider, should not be held responsible for users' use of the technology for illegal activities.

The judicial debate on the principle of "technological neutrality" in the Qvod case is not only a landmark event in China's Internet rule of law process, but also has a profound impact on the adjudication methods of subsequent similar cases. In the judgment of this case, the court systematically explained the principle of technological neutrality, which can be summarized as follows:

• Technology neutrality is a defense, not a golden ticket to immunity : The liability exemption of “technology neutrality” is usually limited to technology providers , while the liability of technology users must be judged based on their specific behavior;
• Qvod's role positioning : Qvod is not only a technology provider, but also a provider and actual participant of online video information services. Its scheduling servers and cache servers actively intervene in the content dissemination process.
• Subjective fault determination : Qvod knew that its technology was used to spread obscene videos (it had been subject to administrative penalties and was known as the "otaku's magic tool" in the industry), and had the ability to prevent it but did not , which was a case of laissez-faire;
• The safe harbor principle does not apply : The court emphasized that the objects of protection of the "Regulations on the Protection of Information Network Dissemination Rights" are legal works , and obscene video content is illegal and does not fall within the scope of protection of the safe harbor rule.

2. Comments from Lawyer Shao Shiwei:

(1) Technology itself is not an object of evaluation under criminal law

From the above judgments, we can see that in criminal cases, the use of technology neutrality as a defense is conditional and is more applicable to technology providers rather than users . The guilty party is never the technology, but the person who uses the technology to commit crimes. Technology is neither good nor bad. What the criminal law evaluates is the person who develops or provides the technology and how he uses the technology.

Regarding this point, the judgment in the Qvod case and the aforementioned US cases, the Sony case and the Grokster case, ultimately reached completely different verdicts, and are consistent in legal theory.

In the Sony case, after selling the video recorder, Sony could not control how the user used the product, which is why Sony was exempted from liability. In the Grokster case, as a platform service provider, it had the intention of luring consumers to use its P2P software to infringe copyrights and earn huge income. Therefore, Grokster is not just a product provider.

A similar judgment can be seen in the Baidu Music Box infringement case mentioned above: the court held that: "The search engine cannot make a prior judgment on the legality of the searched content, and cannot be deemed to be at fault simply because the search results contain infringing content. As for the lyrics "snapshot" and "cache" services provided by Baidu, the court determined that its caching method "replaced the role of third-party websites in providing lyrics", constituting direct infringement.

Even though it is the same technology, different ways of using it will lead to different responsibilities, and freedom of innovation will stop at commercial use.

(2) Whether “neutral assistance” can be used as a defense needs to be determined in combination with the specific business model.

"Neutral assisting behavior" refers to behavior that appears not to pursue illegal purposes, but objectively promotes the crime of others.

For example, in the classic "kitchen knife theory", a kitchen knife can be used to cut vegetables or injure people. If the person who sells a kitchen knife knows that others buy the kitchen knife to commit a crime, but still sells it, it is considered "neutral assistance". Does it constitute a crime? Although there are different views in the theoretical community, from the perspective of China's legislation, China's criminal law does not punish unilateral accomplices (neutral assistance is essentially unilateral accomplices) unless there is a law that explicitly stipulates that it will be treated as a principal.

For example, Article 287-2 of the "Amendment to the Criminal Law (No. 9)" stipulates that if a person knowingly provides technical support or payment settlement assistance to others who use information networks to commit crimes, he shall be guilty of a crime.

For example, Article 2 of the "Opinions on Several Issues Concerning the Application of Laws in Handling Online Gambling Crime Cases" stipulates that providing financial payment and settlement services to gambling websites, or providing Internet access, server hosting, network storage space, communication transmission channels, software development, technical support and other services to gambling websites, is a joint crime of opening a casino.

However, the judge of the Qvod case held that Qvod's cache server downloaded, stored and provided pornographic videos for dissemination with the purpose of illegal profit-making, which constituted the actual act of disseminating pornographic videos, and the platform was not a neutral assisting behavior.

For defense lawyers, if there is sufficient evidence to prove that the platform's business model constitutes "neutral assistance" based on the circumstances of each case, there is room to fight for innocence in that individual case.

(3) Even if it is impossible to achieve “technological neutrality”, it is still possible to obtain a lighter sentence

In the QVOD case, the judge held that the reason why the platform could not obtain a technology-neutral exemption from liability was that it was fully aware that its P2P technology services were being used by others to spread pornographic videos, and that its own caching technology was being used as a tool to accelerate the spread of a large number of pornographic videos, and that the platform had the obligation but the ability to prevent this but did not.

According to the applicable legal provisions of this case, those who commit the crime of disseminating obscene materials for profit shall be sentenced to three to ten years in prison if the circumstances are serious, and more than ten years in prison if the circumstances are particularly serious. And according to judicial interpretation and the market share of Qvod products, and the fact that the parties did not surrender themselves or make meritorious contributions (there is no possibility of downgrade), if the law is followed, the parties should be sentenced to more than ten years in prison as "particularly serious circumstances", but in fact, the court only determined that the platform's behavior was "serious" and finally sentenced the founder Wang Xin to three years and six months in prison.

The important reason why the statutory sentence in this case was reduced from more than ten years to three to ten years was the argument that QVOD was subjectively intentional and negligent in spreading obscene videos.

The verdict mentioned that "there is no evidence in this case to prove the existence of collusion between Qvod and the webmasters of pornographic websites or other users who post pornographic videos. Qvod did not differentiate or select either the content of its services or the objects of its services, and it is impossible to determine that there is a criminal connection between Qvod and pornographic websites and other direct and intentional disseminators of pornographic videos."

In addition, the verdict also mentioned that "considering the difference between the non-intuitive nature of Qvod's laissez-faire dissemination method and the traditional intuitive display method, as well as the characteristics of technical intervention, it is too harsh to evaluate the criminal responsibility of Qvod and the defendants based solely on the number of obscene videos actually stored in the cache server."

(4) Conditional application of the “safe harbor principle”

As mentioned above, the "safe harbor principle" has been established in my country's legal provisions related to information network dissemination rights. This principle is a direct reflection of technological neutrality.

The defense lawyers in this case believed that based on the "safe harbor" rule, Qvod, as a network service provider, could apply the provisions of the "Regulations on the Protection of Information Network Communication Rights" to be exempted from liability. However, the judgment of this case mentioned that "the cache exempted from liability based on the "safe harbor" rule in the field of intellectual property law refers to "temporary storage that is cleared when the power is off, but the videos stored in the cache server in this case can be stored for a long time and available to users at any time", and the safe harbor principle protects legal works, not illegal works."

Lawyer Shao believes that although the safe harbor principle was not applied to the platform in the case, it does not deny that the principle in the field of intellectual property law cannot be applied in criminal cases. Therefore, if the "temporary storage" + "legal works" can be met, there is still a lot of room for defense in specific cases.

4 Legal boundaries of technological neutrality and new challenges in the digital age

1. Legal boundaries of technological neutrality

From the above discussion, we can see that the application of the principle of technological neutrality is mainly in the field of intellectual property rights, especially in copyright disputes. The law establishes a balance mechanism between technological innovation and the protection of rights holders through specific systems such as the safe harbor principle and the red flag principle. The underlying logic of this balance is: copyright is a private right, and the rights holder can judge whether there is infringement or not and assert his rights through the notification mechanism; network service providers are exempted from liability by cooperating in deletion.

In the criminal field, when the application of technology involves the protection of public interests such as social public order and national security, the legal evaluation standards are significantly tightened. Based on the principle of legality of crime and punishment and the priority of protecting legal interests, the criminal law has a strict restrictive attitude towards technological neutrality.

The key to this difference is that the higher the level of legal interests protected by law, the smaller the scope for the application of technological neutrality. Copyright, as a private right, can be balanced with technological innovation through institutional design; while public law interests such as social management order and national security usually take precedence over technological neutrality. Therefore, this also reminds us that in commercial activities, whether it is platform operators, technology developers, or outsourced technology parties, they cannot exempt themselves from responsibility on the grounds of "just providing technical services."

2. New challenges of technological neutrality in the digital age

When we (especially legal workers) look at the Sony case and the Qvod case from today's perspective, we may not think that the issues debated in these cases are still controversial. This is because the relevant legal provisions and adjudication rules have gradually absorbed early views and experiences in practice. However, at the beginning of these cases, there was often a lack of clear legal basis and no precedent logic to refer to. Every qualitative judgment made by the adjudicator was actually a process of "rule creation". This can be seen in the comments of the relevant media on the Qvod case at the time:

"Based on the above clauses, it seems difficult to convict Qvod seamlessly based on its behavior. For example, how to prove that Qvod had the subjective intention to spread pornographic videos after establishing an internal filtering and reporting system and obtaining official approval, etc. This leaves room for the defense lawyer to play.

The prosecutors’ ignorance of technology during the trial, in contrast to the defense counsel’s frequent “golden sentences” , made it hard for the public, who rely on common sense rather than legal expertise to judge right and wrong, not to have the illusion of “making false accusations”.

The lag of legal provisions and the rapid development of emerging technologies are an eternal contradiction. Just as at present, with the explosive development of new technologies such as artificial intelligence and blockchain, the current legal framework also has no clear answers to the legal issues arising in these fields (such as infringement caused by the application of encryption technology, open source technology, etc.).

Especially for criminal defense in emerging areas, we believe that although the law lags behind technological development, law enforcement officers cannot ignore the new changes brought about by new technologies when trying cases.

Criminal defense itself is a legal job that seeks hope in despair . Because the law often does not have ready-made explicit provisions for new technologies, defense lawyers are left with a broader space for reasoning.

As lawyers, we must proactively understand and embrace new technologies, and have a deep understanding of their principles and operating logic, so that we can be targeted in our defense - fully demonstrating to the judicial authorities the rationality of the parties' behavior, whether there is indeed subjective malice, and whether the alleged crime actually constitutes it.

This is also the reason why Lawyer Shao has been able to achieve good defense results in many new types of criminal cases in the fields of Web3, blockchain, etc.

5 Conclusion: Technology itself may be neutral, but its application is always subject to value judgment

The principle of technological neutrality originated from the Sony case in 1984. After 40 years of testing and revision in judicial practice, it has evolved from a simple "substantial non-infringing use" standard to a comprehensive judgment system that includes multiple factors such as subjective intention, objective behavior, and profit model. This evolutionary process reflects the deepening of the law's understanding of the complexity of technological innovation - technology itself may be neutral, but the application of technology is always subject to value judgment.

Therefore, during the lawyer's defense process, he should also deeply explore the actual purpose, usage, profit model of the technological products and the role of the parties' behavior in the specific business chain.

Especially when programmers, platform parties, and outsourcing service providers are involved in criminal cases such as computer crimes, casino crimes, fraud, and aiding and abetting crimes, they cannot simply advocate "technological neutrality" to law enforcement officers. Instead, they need to make comprehensive judgments based on the platform's business model, user behavior, technical design intent, marketing promotion plans, and the specific behaviors of the parties involved, and make sufficient theoretical arguments.

In the digital age, the principle of technological neutrality faces challenges brought by new technologies such as AI and blockchain, but its core concept remains unchanged - the law should evaluate people's behavior rather than the technology itself; the determination of responsibility should consider subjective intentions rather than just technical functions; and the protection of innovation must take into account both social welfare and the protection of private rights.

The more technologically opaque and unclear the regulation is in a cutting-edge field, the more it requires criminal defense lawyers to proactively construct new reasoning frameworks and clearly explain to law enforcement officers the boundaries of technology and the applicable conditions of neutrality, so as to truly obtain substantive fair trials for their clients.

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