With that said, the most obvious difference between Tor and any
VPN service (to my eyes anyway) is that VPNs use a paid-for something
to grant right of access, anonymous or not. Could it be possible then, that VPN providers could be deliberately classified as "virtual ISPs", just so that they would be afflicted by this proposal? Obviously CS would still be unaffected, but I would be interested to hear your opinion.
Good questions - but, of course, paid/unpaid can't be the categorical boundary since we could just give away cryptostorm access (which we already do for many activists, worldwide) and thus subvert that distinction - or Tor could be accused of "charging" for the service by asking for donations.
As you say, the distinction in telecomms law generally relates to either "hosting" of content, or hands-on management of the content. Those who simply transit packets largely exempt from active pressures to monitor specific traffic. This has to be the case, as we often remind our colo providers; otherwise, Level 3 would have to filter every packet on their wholesale routes to be sure someone's not sharing Asses of Distinction XXXCCVII
or whatever. Which is entirely infeasible, obviously.
The thing is, it's possible to write statutory language specifically targeting a service such as cryptostorm - we expect that to happen, over time. It's been done by Iran, for example: using a "VPN service" is formally illegal there. That happened after the Green Revolution of 2009, during which we (working as Cryptocloud at the time) donated many hundreds of subscriptions to frontline activists - including several very prominent on the political side of things - and engaged in a running cat-and-mouse game of evading governmental efforts to block connections to our network throughout. So when the dust settled, they made "VPN service" illegal. That's how governments work.
But, laws like that must traverse a sclerotic process to become real - and we can move faster. It's asymmetric conflict, obviously... and in such a context, adaptability and creativity are the key tools of the outgunned underdog. That's us
The mice survived, and the dinosaurs went down...