In the internet era, providing network connection, information transmission, resource sharing, platform trading, and other network technology support has become a common technical service work, which is neutral and harmless in itself and belongs to a typical neutral assistance behavior. However, with the addition of the crime of assisting information network criminal activities in the "Criminal Law Amendment (Nine)," the crime of providing technical support has become a significant legal risk faced by network technology operators, and many technical providers have thus been drawn into the vortex of crime.

As criminal patterns evolve, the judicial crackdown chain continues to advance, and the technical neutrality is frequently compromised in trials. This warns us that the neutrality of technology is by no means a "get-out-of-jail-free card" in criminal trials; the "behavior model" is far more decisive in determining guilt or innocence than the "technical content."

How can we avoid the servers and customized software provided from becoming "accomplices" in fraud or money laundering, and delineate the legal boundaries of technical operations? How can we secure sufficient and reasonable development space for technological innovation and industrial development while finding a balance between network security maintenance and network freedom protection? The Sa Jie team will focus on the most critical aspect of determining the crime of assistance, which is the identification of "knowledge," clarifying the punishment boundaries of neutral technical behavior, and guiding technical providers on the path to compliant operation.

The specificity of network technology determines that the "knowledge" requirement for the crime of assistance becomes the key to distinguishing between guilt and innocence. Unlike traditional accomplices who take "collusion" as the starting point for establishing and punishing crimes, the concealment and decentralization of cyberspace allow the perpetrator and the helper to connect through virtual identities.

At the same time, with the help of the internet and information sharing mechanisms, even weak or nonexistent intent can objectively become part of criminal activities. Therefore, for legislative purposes and crime governance needs, the determination of the crime of assistance should not be limited to traditional accomplice theory.

Regarding the understanding of "knowledge" in the crime of assistance, there are generally three different opinions in theory and practice:

1. "Certain knowledge," meaning explicitly knowing;
2. Knowing and should have known;
3. "Clearly knowing" and "possibly knowing."

We support the first viewpoint.

1. The contradiction of the principles of should have known and possibly knowing

Through the review of judicial cases, it can be seen that current judicial practice adopts a relatively low standard for determining "knowledge," namely (2) or (3), which leads to the continuous expansion of the crime of assistance. This is a result guided by the characteristics of cybercrime. Specifically, due to the wide coverage of information network crimes and the complexity of network technology, there are often difficulties in investigation and evidence collection in judicial practice.

As a result, judicial authorities tend to expand the interpretation of "knowledge," equating it with "should have known" or "possibly knowing," to reduce the difficulty of objective proof. However, this standard is inappropriate for the following reasons:

First, at the theoretical level, interpreting knowledge as "should have known" or even "possibly knowing" violates the principle of legality in criminal law and the principle of responsibility, confusing the determination of intent and negligence.

On one hand, knowledge is a real understanding rather than a potential understanding, while "should have known" implies that the actor does not actually know; such an equivalent interpretation contradicts objective facts and does not meet the requirements of the principle of responsibility.

On the other hand, "knowledge" means that the actor is already aware of the existence or possible existence of certain facts, which is a foreseeable situation, while "should have known" is essentially "not knowing," which is an unforeseen situation. Equating the two expands intentional responsibility into the realm of negligence, which is clearly inappropriate.

Second, at the practical level, expanding the scope of knowledge would unreasonably increase the review obligations of technical providers, hindering technological progress.

For network service providers, the internet access, server hosting, and other technical behaviors they provide often have business neutrality; at the same time, the recipients of network services usually present a wide range of "one-to-many" characteristics, which makes it difficult for technical providers to discern and review from a vast amount of information. If it is only required to "should have known" or even "possibly knowing" that others are using the network to commit crimes, it undoubtedly imposes excessively harsh requirements on network service providers.

2. Establishing the standard of clear knowledge

For the above reasons, the Sa Jie team believes that the knowledge requirement for the crime of assistance should be limited to "clear knowledge": first, the actor indeed knows and admits to knowing; second, the actor actually knows, which is determined by applying presumptive rules. Only when the actor clearly understands the object of assistance, that the object is using their technology to engage in harmful social behavior, the promoting effect of the assistance on others, and the resulting harm, can the crime of assistance be established.

As for what kind of crime is being committed, whether it is fraud or money laundering, it is irrelevant. This cognitive deviation does not hinder the establishment of the crime of assistance. The debate over the difficulty of ascertaining subjective intent should be proven by evidence of technological advancement and improvement, rather than broadening the boundaries of knowledge in violation of basic principles.

In judicial practice, how to prove the actor's subjective "knowledge" is the key and difficulty in determining the crime of assistance. Given the difficulty of directly obtaining the actor's inner intentions, judicial authorities have further improved the principle of "consistency of subjective and objective" — that is, by examining a series of objective external behaviors and individual external characteristics of the actor to infer their subjective cognitive state.

The Sa Jie team summarizes as follows through a "flowchart":

Simply defining knowledge from a theoretical perspective is far from sufficient to serve as a warning. The Sa Jie team will combine academic theories and practical cases to classify and create three behavioral profiles based on the objective manifestations of behavior and the subjective psychology of the actor, to delineate the red line of neutral technology and the boundaries of criminal punishment.

(A) Technical assistance behavior provided for crime

Technical assistance provided for crime refers to the act of creating or providing network products or services specifically for committing crimes. Typical examples include creating and selling malware, viruses, botnets, phishing websites, and illegal technical systems. Such criminal behaviors unique to the technological era have exceeded the scope of technical neutrality and have become tools for crime.

In this case, the actor knows that they are providing assistance for engaging in information network criminal activities, and there is no difficulty in proving this; therefore, as long as the objective circumstances meet the severity requirements, the crime of assistance can be established.

In addition, such malicious behaviors can also be treated as accomplices based on accomplice theory, depending on the crime committed by the assisted party. The existence of intent between the perpetrator and the accomplice does not affect the determination of complicity; thus, unilateral complicity still has ample grounds for establishment.

(B) Misused technical assistance behavior

Misused technical assistance behavior refers to situations where the technology itself is created for legitimate purposes but is used to assist illegal information network criminal activities. It needs to be specifically judged whether the technology is primarily used for legitimate purposes or for illegal criminal activities. Typical examples include providing P2P software, bookmark sites, link sites, or installing GOIP devices and surveillance cameras for signal transmission, renting, installing, and maintaining "multi-card treasure" devices, and building telephone voice gateways.

This behavior itself is legitimate and compliant, but it does not rule out the possibility of becoming a tool for crime. In this case, sufficient evidence must be provided to prove that the actor "knows" that others are engaging in information network criminal activities in order to be held liable for the crime of assistance. The judgment standard for knowledge is as previously described.

(C) Occasionally misused technical behavior

Occasionally misused assistance behavior refers to situations where the technology is legal and compliant, and the provider's purpose is legitimate, but it is occasionally used illegally by the user. There is considerable debate regarding the responsibility of network platforms providing server hosting and software services in specific criminal activities. In this case, the violation of obligations by the technical provider is a prerequisite for criminal liability.

Based on the safe harbor rule, developing, selling, renting, providing, and maintaining software services are technically neutral behaviors with legitimate purposes and should not bear civil tort liability or criminal liability. In general, network service operators and platform operators do not have a special obligation to supervise users' specific usage behaviors. As long as operators conduct business and provide services within the framework of laws, regulations, and industry standards, and do not deeply participate in others' criminal activities, maintaining business neutrality, even if they know that others may use the servers they provide to commit crimes, they should not constitute the crime of assistance.

However, if operators violate compliance obligations, establish a close relationship with users, or collude to provide specific assistance for criminal activities, or refuse to correct after being ordered by regulatory authorities to take corrective measures, they may constitute the crime of refusing to fulfill information network security management obligations or even the crime of assisting information network criminal activities. The specific identification path for this still requires further research and improvement.

Technical neutrality is not a legal vacuum; the boundaries of the law often do not lie in the technology itself but in the purpose and use of the technology. Any "technical provision" behavior that harbors a fluke and operates in gray areas faces extremely high criminal risks.

For network technology operators, it is essential not only to delineate the boundaries with illegal technical behaviors but also to be vigilant about "misused technical assistance behaviors" and "occasionally misused technical behaviors," establishing a sound compliance review mechanism, clarifying service objects and usage scenarios, and avoiding inadvertently becoming a "booster" for crime. Only by innovating within compliance and developing within responsibility can a sustainable path be found between technological freedom and legal bottom lines.

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Original text: “Is Technical Neutrality a ‘Get-Out-of-Jail-Free Card’? A Detailed Explanation of the Determination of ‘Knowledge’ in the Crime of Assistance”

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