(Continuation of the series devoted to the legal and technical aspects of audio recording as a means of protecting one’s rights and using it as evidence in court. Links to other articles are below).
Article 138.1 of the Criminal Code of the Russian Federation - Illegal trafficking of special technical means intended for secretly obtaining information (STS NPI)
I approached this topic for a long time, the ground was painfully shaky. And in many ways, it is precisely this article that is associated with numerous unpleasant stories with buyers of various devices “from the Chinese” and other interesting gizmos from the world of electronics and other problems often experienced by completely respectable citizens.
There are not too many criminal cases regarding violation of secrets (illegal wiretaps, spying and dissemination of such information - Article 138 of the Criminal Code of the Russian Federation) at the everyday level. The distribution included buyers and owners of baby monitors, pens with built-in video cameras, GPS trackers and other items that were recognized by STS NPI.
What is the problem?
First of all, in the very concept of “special technical means,” or rather, in its uncertainty. There is no normative document containing a definition or an exhaustive list of characteristics of STS NPI. Law enforcement agencies, concocting such cases from improvised means, usually refer to a couple of Government Resolutions (RR), which include STS NPI, but... all this is very far-fetched - the meaning of the documents is reduced to regulating other legal relations and they do not contain any signs, according to which a certain device can be classified as an STS NPI. The scheme is simple - a device that seems suspicious is sent for examination, the expert, according to certain established traditions, famously refers it to the STS NPI, and then it’s all in the bag.
It should be noted that in some cases, law enforcement officers pay attention to the above circumstances and avoid mentioning, or even specifically stipulate that they did not use PP No. 14 and No. 770 when qualifying devices.
But then a reasonable question arises: on the basis of what and what signs was the conclusion made? Based on the expert’s idea of “how would it be reasonable”, or his civic position? At the same time, it is obvious that no matter what procedural legislation says about equality of evidence, an expert’s opinion is a trump card in many cases in general and in this category in particular.
The problem here is that the very concept used to qualify STS NPIs is fundamentally outdated.
Due to the fact that the range of electronic devices existing in the world today is incredibly large and equipment and technologies are developing very rapidly, it seems to me that creating an exhaustive list of signs of STS is a very difficult task. This all remains in the times when there were rare, expensive and bulky household devices and specially created unique “spy things” that really had nothing in common with everyday ones.
Now, not only innovative developments, but also familiar household devices, which have gone through the path of miniaturization, universalization, and a significant increase in technical characteristics, no longer have anything in common with previous household appliances, but are more like what only a narrow circle previously owned and used. This is a general path of development, once art was an exclusively elitist matter, and then it went to the masses, and technology - gradually the masses are mastering what was previously the lot of the elite. And de facto, now law enforcement officers, relying on long-outdated dogmas, are trying to stop the course of history - no matter how pathetic it may sound.
About walks with pipe cutting
Mikhail Tyrin , retired captain of the Ministry of Internal Affairs, journalist, writer:
— Yes, there is a problem with Article 138.1 of the Criminal Code of the Russian Federation. I consider this legal norm to be redundant. If someone wants to get classified or private information, they will find a way without Chinese toys. There are miniature and completely legal means of recording information on the open market, which, with a little ingenuity, can be well disguised and used for espionage, blackmail, etc.
My other argument is the problem with the classification of the so-called. "special technical means". There are devices that are specifically designed to steal and decrypt sensitive information - those that can be built into a local computer network, into a cell phone battery, etc. Everything is clear with them.
But there is another group of STS - these are devices disguised as household items: key rings, pens, toys. Whether they can be considered special technical means is a big question. Let's say you use a mobile phone in the form factor of a wristwatch. It is not prohibited. But some models also have a camera. What will the expert and the judge decide - is it a harmless watch-phone or a “spy” watch-camera?
And there are also electronic endoscopes. They are convenient for checking the condition of household pipelines, but you can attach a tiny “eye” with a wire to a bag or stick it through a gap to your neighbors - and it immediately becomes a “special technical tool”? We have a tiny video camera lying in our toy box at home, which we bought legally for a child’s quadcopter. It is easy to hide even in a matchbox - does it then become a “special technical means”?
I support the initiative to partially decriminalize this article of the Criminal Code. Truly highly specialized devices that are intended solely for stealing information should remain outside the law.
As for digital toys of universal use, they should not be the subject of criminal or even administrative prosecution. One day, my co-worker found a mini voice recorder hidden in the lining of her bag. Her acquaintance wanted to follow her personal life. On the one hand, there is interference in the private sphere of a private individual. On the other hand, this voice recorder was and is freely sold in stores. It's not about the fact of having a device, but about the ways in which it is used. It is the methods that should be the object of interest of the law enforcement system.
Here's a related example. You can walk around the city with impunity with a piece of iron pipe. But if you break down someone else’s door with this pipe, an aggravating circumstance will appear in the criminal case: the use of technical means. And if you hit someone with this pipe, it automatically becomes a weapon, which also aggravates the guilt.
The same applies to general purpose electronic devices. If you do not use them for illegal activities, you are not guilty of anything. But if a tracking gadget appears in a case of libel, blackmail, or espionage, the public prosecutor has an aggravating circumstance against the defendant.
Another aspect reflected in the law and comments to it: the conversion of any devices for “spy” purposes. I believe that in these cases criminal or administrative prosecution is justified.
And one last thing. Article 138.1 of the Criminal Code of the Russian Federation and its enforcement already seem morally outdated simply due to the development of technology. Another ten years - and it will look as ridiculous as the ban on keeping donkeys in the bathroom, which is still in effect in some US states.
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What signs are looked for in practice?
The most common feature by which devices are classified as STS is “camouflage”. Explaining this, also not very specific term, they talk about the “built-in” audio and video surveillance devices in household appliances. And on this basis, the voice recorder/video camera built into the handle and the video camera built into the fire alarm system (smoke sensor) are also classified as STS. This example alone raises many questions.
- and how does “camouflage” in household appliances, which law enforcement agencies are after, differ from the combination of functions - the path along which the development of technology in general (food processors) and electronics in particular is taking place?
- why a pen with a built-in voice recorder was recognized as an STS (based on the fact that the audio recording device is “camouflaged” in a household device - a fountain pen), and mobile phones with built-in voice recorders (using the logic of experts - the same audio recording devices, “camouflaged” in a household device - a telephone) – no one is interested? There is selectivity in law enforcement, due, first of all, to the “defectiveness” of the regulatory regulation of this issue.
Trying to somehow explain such obvious, but stubbornly applied, inconsistencies, representatives of the competent authorities begin (perhaps forcedly, since they also work in the same poor-quality legal field) to engage in literally “fantasies on the topic” and refer to invented signs:
- “Telephones are produced in mass quantities” - (where did the criterion “mass of a batch” come from? How much is a mass batch? Who measured it?)
- “The audio recording functions of a phone are well known” - where did the criterion “well known” come from? Who assessed it? Based on what scale?).
(These are all real quotes from the responses of the competent authorities to requests)
I'm not even talking about the fact that 20 years ago mobile phones were not “massive” and it was not “common knowledge” that a phone contains audio and video recording functions, and now, for example, it is not generally known that a phone also has a lot of capabilities for recording and transmission of information from communication channels, and access to many functions that are much more “special”, if you like, “spy” than those that are accessible using a pen with a voice recorder. Those. Even if we accept the criteria of “well-known”, “mass”, then the situation with telephones has become the norm not because this is their natural state, but because several years ago, for a number of reasons, no one prosecuted for their production, sale and acquisition, and through what The same thing may happen with conventional pens with video cameras (of course, no one is against smartphones, we are talking about the inadmissibility of the widespread double standards in the application of laws).
Article 138.1 of the Criminal Code of the Russian Federation is closely adjacent to Art. 138 - Violation of the confidentiality of correspondence, telephone conversations, postal, telegraph or other messages
Here, too, everything is not so simple.
In my opinion, the most appropriate way to solve problems arising in the process of applying Art. 138 of the Criminal Code of the Russian Federation (and 138.1) - shifting the emphasis from technology to action, i.e. it doesn’t matter what kind of device is used to violate a secret protected by law (using the miniature and smartest audio and video recording system built into a tiny earring in the ear, or a primitive cassette recorder made in the 80s). An act that violates rights must be punished, and the issue of prosecution “for technology” in modern realities must be approached very, very thoughtfully.
Comments on Article 138.1 of the Criminal Code of the Russian Federation
Object of crime . The main object of the crime under Art. 138.1 of the Criminal Code of the Russian Federation, as well as other crimes provided for by the norms of Chapter 19 of the Criminal Code of the Russian Federation, is the constitutional right to the secrecy of correspondence, telephone conversations, postal, telegraph and other messages of citizens.
The direct object of the crime is the procedure established by law and other regulatory legal acts for the production, acquisition, and sale of special technical means intended for secretly obtaining information.
The subject of the crime in question is special technical means intended for secretly obtaining information.
Often, special technical means are disguised by the manufacturer as household items (watches, glasses, pens, pencil cases, etc.), which contribute to a person’s erroneous perception of their functional purpose.
The concept of special technical means is given in Appendix 1 of Article 138 of the Criminal Code of the Russian Federation.
Such means within the meaning of Article 138 of the Criminal Code of the Russian Federation include, for example, special technical means:
- for secretly receiving and recording acoustic information;
- for covert visual observation and documentation;
- for secret wiretapping of telephone conversations;
- for secret interception and recording of information from technical communication channels;
- for secret control of mail messages and shipments;
- for secret research of objects and documents;
- for secret entry and inspection of premises, vehicles and other objects;
- other technical means, the free circulation of which is not permitted, if these actions are performed without an appropriate license and not for the needs of bodies authorized to carry out operational investigative actions (Resolution of the Government of the Russian Federation of April 12, 2012 N 287 “On approval of the Regulations on licensing activities for the development, production , sale and acquisition for the purpose of sale of special technical means intended for secretly obtaining information").
An electronic device intended for secretly obtaining information is a specially manufactured product containing electronic components, secretly introduced (placed or brought in) into places where protected acoustic speech, visual or processed information can be collected (including in the fences of premises, their structures, equipment, objects interior, as well as in vehicle interiors, in technical means and information processing systems) (Resolution of the Government of the Russian Federation of April 16, 2012 N 314 “On approval of the Regulations on licensing activities to identify electronic devices intended for secretly obtaining information (except when the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur).”
The illegality of performing the actions specified in the disposition of Art. 138.1 of the Criminal Code of the Russian Federation means their commission in violation of the established procedure.
For example, in accordance with Art. 12 of the Federal Law of 04.05.2011 N 99-FZ “On licensing of certain types of activities” the development, production, sale and acquisition for the purpose of sale of special technical means intended for secretly obtaining information are subject to licensing. In development of the provisions of this Federal Law, a Resolution was adopted. Government of the Russian Federation dated April 12, 2012 N 287 “On approval of the Regulations on licensing activities for the development, production, sale and acquisition for the purpose of selling special technical means intended for secretly obtaining information.”
The objective side of the crime under Art. 138.1 of the Criminal Code of the Russian Federation, constitutes the commission of actions specified in the law in violation of the above and other regulatory legal acts.
The production of technical equipment should be understood as their industrial or handicraft production, adaptation of household equipment for special purposes, its modernization for secretly obtaining information, etc.
Sales involve the transfer of an item to another person (at least one), exchange, donation, etc.
Any form of taking possession of a technical device can be considered an acquisition If the method of taking possession of an object contains signs of an independent crime (for example, theft), the act should be classified according to the totality of the crimes.
The corpus delicti is formal. The crime is completed from the moment the actions for the production, sale or acquisition of special technical means intended for secretly obtaining information are carried out.
The subjective side of the crime is characterized by guilt in the form of direct intent. The person realizes that he illegally produces, sells or acquires special technical means intended for secretly obtaining information, and wants to carry out these actions.
The motive for the crime does not affect the qualification of the act. They may be curiosity, self-interest, envy, etc.
The subject of the crime is general - a sane individual who has reached the age of 16 at the time of the commission of the crime (Part 2 of Article 20 of the Criminal Code of the Russian Federation).
Is there light at the end of the tunnel?
The uncertainty of the legislation and the temptation for law enforcement agencies to make plans to solve such dusty cases have given rise to a lot of ridiculous, but no less disgusting precedents. They had strong support, cases were appealed to the Supreme Court, complaints were considered in the Constitutional Court - nothing got through. Having such an impenetrable position, law enforcement officers got carried away and reached the point of complete absurdity, which eventually spilled out to the very top (I mean the case of the Kurgan farmer who suffered for a calf tracker). And from that moment on, some breakthroughs began - the Supreme Court of the Russian Federation suddenly saw the light and Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 25, 2018 No. 46 appeared, setting more sound positions on these issues, securing more understandable and adequate approaches to issues related to the protection and violation of secrecy, and to issues relating to technical devices. In particular, the court indicated that
“technical devices (smartphones, voice recorders, video recorders, etc.) can be recognized as special technical means only if they are deliberately given new qualities and properties through technical modification, programming or other means, allowing them to secretly receive information”
“The actions of a person who acquired a device intended for secretly obtaining information with the intention of using, for example, for the purpose of ensuring personal safety, the safety of family members, including children, the safety of property or for monitoring animals and did not intend to use it as a means of encroaching on the constitutional rights of citizens.”
In addition, legislators are taking another approach to trying to reformulate the relevant norms (the new edition is currently undergoing approval procedures), but judging by the edition that I saw, we should not expect any special breakthrough here. The approach has not changed radically; they are trying to solve the existing problem within the framework of the same, initially defective concept, by juggling with words. This may, of course, improve the situation somewhat (especially coupled with the above-mentioned position of the RF Armed Forces and the scandal that occurred), but the new formulation does not seem to bring a radical breakthrough in this matter.
What is STS NTI
Recently, the number of criminal cases initiated under Article 138.1 of the Criminal Code of the Russian Federation has sharply increased. In most cases, the accused admits his guilt, so such cases are considered as special proceedings. However, this does not mean that there are no procedural difficulties in applying this law. If the accused disagrees with the charge, the defense relies on the lack of a clear definition of STS NTI. Indeed, in the current regulatory framework there is simply no list of such means. There are also no criteria established by law by which certain technical means can be classified as special.
Investigative authorities, conducting a preliminary investigation into a case initiated under Article 138.1 of the Criminal Code of the Russian Federation, avoid gaps in the law by conducting various examinations. The expert must have a diploma, certificate or other document allowing him to conduct such examinations. As a result of the study, undocumented properties of the device may be identified, according to which this device is classified as an STS NPI. The investigator relies on the fact that the hidden capabilities of the device have been identified. A striking example is an ordinary ballpoint pen with a built-in voice recorder or video camera.
The court fully trusts the certificate written by the expert, so a guilty verdict is a matter of time. The saddest thing is that a citizen who, out of ignorance, had the imprudence to purchase such a product may end up in the dock. Undoubtedly, private life, as well as its inviolability, must be protected by law.
Disclosure of information without the consent of its copyright holder is unacceptable. But it is completely unclear why the law sharply distinguishes between the legality of such situations when the conversation was secretly recorded with a miniature voice recorder, unnoticed by the speaker (if such a voice recorder was acquired legally) and when the conversation was also secretly recorded with a ballpoint pen. The second, by the way, is a criminal offense.
- On the one hand, the ambiguity of legislation gives rise to arbitrariness among law enforcement officers. Any unlucky buyer who purchases a “Chinese” toy, of which there are many on the market now, can easily be charged under Article 138.1 of the Criminal Code of the Russian Federation.
- On the other hand, the vagueness of the term STS NPI gives the lawyer a free hand, and the main strategy for protecting the client becomes proof that the device does not belong to this group.
If there are no reasons on the part of law enforcement agencies to bring a citizen to justice (they do not carry out the plan or do not detain the citizen under this article, since his actual guilt under another article has not been proven), then the investigators will prefer to withdraw themselves, allowing the expert to decide whether the device belongs to technical NPI devices. As practice shows, experts literally “stamp” conclusions about the belonging of technical means to STS NPI, since their conclusions do not have any legal justification.
Against the background of the above, one should draw the correct conclusion about the need to attract a competent lawyer. To put it bluntly, bringing a person to criminal liability under Article 138.1 is a matter of the investigator’s mood. A number of provisions of the law on operational-search activities stipulate that in the process of operational investigative activities devices may be used that are designed to secretly obtain information and are designed to conceal the fact of surveillance of a person. These STS NTP form a very specific list approved by Government Resolution. This resolution specifies the intended purpose of the technical means. We can conclude that special technical means intended for secretly obtaining information include:
- means used in operational-search activities by specially authorized bodies;
- funds registered and registered with the FSB of Russia as STS NPI.
Many experts refer to the Government Resolution, which approves the list of technical devices that require mandatory licensing for import and export. These devices include:
- remote controlled photographic equipment;
- photo or video transmission systems via cable, radio and optical communication lines;
- devices camouflaged as household appliances.
It would seem that the uncertainty has been eliminated, however, based on the above list, we can safely classify devices such as a regular camera with a remote control, a webcam, or a miniature camera hidden in a children’s toy by parents who want to monitor their child’s behavior as STS NPI . In any case, at the stage of examination of the device, a turning point may occur, since the further course of the case depends on the expert’s conclusion. Only a competent lawyer is able to protect the interests of the accused and completely free him from criminal prosecution.
