According to the “Media Consumption in Russia – 2020” study conducted by Deloitte, for the third year in a row, messengers remain the most popular smartphone function 1 .
Due to the constant growth in the popularity of instant messengers, the issue of legal protection of the privacy of correspondence stored on citizens’ mobile phones has become particularly relevant both in the scientific community and in practical activities 2 . This problem also justifiably causes concern among citizens themselves.
Criminal legal basis
Violation of the secrecy of correspondence or other method of confidential exchange of information should be understood as unauthorized acquaintance of a third party with data transferred by one person to another.
If a violation is found, the punishment is imposed based on the provisions of Art. 138.
Unauthorized access as :
- lack of permission to review from at least one of the participants in the information exchange process;
- lack of judicial grounds to familiarize yourself with the correspondence of other persons.
We will talk about the legal significance of violation of the secrecy of correspondence, telephone conversations, postal, telegraph or other messages in the national Criminal legislation of the Russian Federation in the article.
Personal correspondence
Unauthorized access to personal information contained in personal private letters/messages/e-mails sent to another private person/from another person. via mail, mobile communications (SMS, mms) or the Internet (via any social network, Skype, Asya).
Phone conversation
Unauthorized familiarization with the content of telephone conversations, including long-distance ones , using a parallel telephone or by connecting specialized devices to the network, recording conversations on any storage medium.
Postal message
Unauthorized viewing of letters, telegrams, secograms received by another person, before or after the addressee becomes familiar with the contents of the message.
Unauthorized access to information transmitted using the capabilities of telegraph lines.
Objective part
It consists of familiarizing the perpetrator with the content of information that was transmitted by one citizen to another. It should be noted that there is no such thing as “secrecy of correspondence” for persons who are in places of serving a criminal sentence. The volume of information, the confidentiality of which has not been maintained, does not affect the qualification of the act.
Crime Analysis
At what point is the violation of the confidentiality of correspondence reasonably considered completed? A crime is considered committed if the offender has become familiar with the contents of any type of message .
Familiarization without permission with the information content of messages transmitted by private individuals to each other in any way is a crime , since it violates the constitutional rights of a citizen of the Russian Federation (Part 2 of Article 23).
The corpus delicti is formal . Object: the right of a citizen to non-disclosure of the information content of correspondence, messages received through mobile, telegraph communications, and Internet capabilities.
Objective side: familiarization with the contents of messages transmitted in any way from one private person to another. Not valid for correspondence conducted by persons in institutions that restrict the freedom of offenders.
The size of the information is not a factor influencing the degree of punishment .
Subject: a person who has reached the age of sixteen .
Subjective side: presence of intent . By getting acquainted with someone else's personal information without permission, a person understands that he is acting illegally.
Criminal-legal characteristics: violation of the constitutional right of another person by a person who has reached the age of sixteen, acting with intent, using or not using special means in the process.
Secrecy of correspondence, telephone and other conversations
The question often arises: in what cases can we talk about an invasion of a person’s privacy? Often, citizens in public transport or on the street talk quite loudly with someone on a variety of (including private) topics. In such a situation, can people passing by or nearby be considered criminals? In this case, the surrounding citizens are not violators. This is due to the fact that loudly speaking subjects do not take measures to maintain the confidentiality of information. But if, for example, a person standing next to you shows an unhealthy interest and tries to look into the phone of another person while he is texting with someone, this behavior will be unlawful.
Qualifying features
Consciously familiarizing yourself with the contents of someone else's correspondence/telephone conversations/messages of any kind, without obtaining permission from one of the participants in the communication or a judicial authority.
The fact of the crime is confirmed by the conviction of illegal access to private information . Persons sixteen years of age and older are subject to punishment.
A similar crime committed by an official who took advantage of personal influence or equipment at his disposal that helps to obtain secret information entails an increased degree of punishment .
Hero #6. “Hacked” the website of a government organization
A resident of the city of Kamyshin, Volgograd region, visited a “hacker” site, where he discovered and copied the login and password of the specified web server with an IP address
.
It was a service web server that belonged to the Ministry of Information and Communications. The man connected to the server and installed and launched special software designed to obtain passwords for all users of a given operating system, and designed to promote websites in search engines
.
Article: Criminal Code of the Russian Federation, Article 272. Illegal access to computer information
Punishment: fine of 100,000 rubles (cancelled in connection with the resolution “On declaring an amnesty in connection with the 70th anniversary of Victory in the Great Patriotic War of 1941-1945”)
Court document: Judgment in case 1-526/2015
Punishment and responsibility
Violation of the confidentiality of correspondence by a non-official is punishable by:
- imposing a fine of up to 8,000 rubles;
- a fine equal to salary and other income for a period of up to 6 months;
- compulsory work for up to 360 hours;
- correctional labor (up to a year).
Violation of the confidentiality of correspondence by an official is punishable by:
- imposition of a fine from 100 to 300 thousand rubles;
- a fine equal to salary and other income for a period of one to two years;
- deprivation of the right to work in certain positions, engage in certain types of activities for 2-5 years;
- compulsory work (up to 480 hours);
- forced labor (up to 4 years);
- arrest (up to 4 months);
- imprisonment (up to 4 years).
If caught in the illegal production/purchase/sale of equipment for obtaining confidential information , they are punished in accordance with Art. 138 h 2 of the Criminal Code of the Russian Federation:
- imposing a fine of up to 200 thousand rubles;
- a fine equal to salary and other income for a period of up to 18 months;
- restriction of freedom (up to 4 years);
- forced labor (up to 4 years) with deprivation of the right to certain activities (up to 3 years) / without deprivation of the right;
- imprisonment (up to 4 years) with deprivation of the right to certain types of activities (up to 3 years) / without deprivation of the right.
The maximum punishment for violating the secrecy of telephone conversations is determined by the court, taking into account the provisions of Art. 138 of the Criminal Code of the Russian Federation and taking into account the motives of the person who committed the offense and the conditions under which it was committed.
Correspondence on a smartphone: can the police watch it?
A police officer’s demand to unlock a phone or provide an access code to it is always an encroachment on the constitutional right to privacy of correspondence, and without a court decision this demand will be illegal. As a result, a citizen’s refusal to unlock his phone cannot be considered as disobedience to the lawful demands of a police officer.
After disseminating information on the Internet about mass checks by police officers of citizens’ mobile phones in order to identify instant messengers installed on them and familiarize themselves with personal correspondence, the Russian Ministry of Internal Affairs on its official website confirmed that police do not have the right to demand citizens to unlock their phones and explained to the latter that In the event of such demands from police officers, they have the right to file complaints both with the prosecutor’s office and with the internal security service of the Ministry of Internal Affairs of Russia 3 .
Thus, police officers have no legal right to demand that citizens unlock their phones.
However, in practice, this often does not prevent police officers, taking advantage of the legal illiteracy of citizens, to demand from them a password to access a smartphone. In this case, as a rule, various tricks are used, for example, the citizen is informed that if he refuses to unlock his phone, he will have to go to the police department. And despite the fact that the law does not legally provide such an opportunity to police officers, in fact such a scenario works quite well.
In most cases, citizens follow the lead of police officers either because they do not know their rights (which is most often) or simply wanting to avoid possible troubles.
At the same time, of course, there are no guarantees that even if a citizen unlocks his phone and provides it for inspection by police officers, he will subsequently also not have to go with them to the department.
Unlocking a smartphone using a fingerprint: does a police officer have the right to put your finger on it?
Consider a situation where access to a smartphone is protected by a fingerprint. Can a police officer simply touch the owner's finger to the phone?
No, he can not!
In this case, in addition to the illegality of the very demand to unlock the phone, the policeman is forced to exert physical influence on the citizen , and this, in turn, is already qualified as the official taking active actions that clearly go beyond the scope of his powers, which entailed a significant violation of rights and legal interests of citizens.
In other words, there are signs of a crime under Art. 286 of the Criminal Code of the Russian Federation (exceeding official powers), punishable by imprisonment for up to four years.
A similar situation arises when unlocking the phone via Face-ID.
Thus, in administrative jurisdiction, requiring police officers to unlock a phone or tell them the phone password without a court order is illegal in all cases. If a citizen does not unlock his smartphone himself and does not voluntarily allow the police to examine its contents, then they will not be able to gain legal access to it. The police have no legal grounds to force him to do this.
Unfortunately, this issue is resolved differently when administrative legal relations are replaced by criminal procedural ones.
Examples from judicial practice
Case 1
The company hired an employee to monitor any information received/sent via corporate email .
During the course of the activity , the personal non-corporate e-mail of one of the organization’s employees was hacked, after which it was established that he had disclosed trade secrets to the company’s competitors.
At the trial, the data obtained by hacking the defendant’s e-mail was not taken into account, since there was no legal permission to obtain it .
Case 2
An employee of a telecommunications company provided information about citizens' telephone connections for a fee . The court imposed a sentence of compulsory labor (400 hours).
Case 3
Driven by jealousy, the citizen managed to gain access to the contents of letters in an e-mail registered to her husband’s ex-wife and her page on a social network. Before being convicted of a crime, the offender repeatedly received personal information from the victim . By a court decision, the accused was sentenced to a fine of 24,00 rubles, in addition to which she was ordered to pay monetary compensation of 10,000 rubles to the victim.
From the point of view of the law, even reading a short SMS message that is not intended for you is a violation of Article 138 of the Criminal Code of the Russian Federation . Moreover, it does not matter how related your relationship is with the person whose personal “territory” you are violating.
If desired, if you are caught viewing data that is not intended for you, a person has the right to sue for such a display of curiosity .
Moreover, the court, in 99% of cases, will be on the side of the offended person and will award punishment. Violation of the confidentiality of correspondence may result in criminal liability.
Hero #3. “Hacked” a colleague’s VK page
A technical support specialist from Ryazan downloaded the DroidSheep program onto his phone ( this was in 2015 ) to intercept sessions of users using open Wi-Fi.
When he was in the office with a colleague, he was able to log into her VK page using this program, read personal messages and copy the girl’s personal photographs from there (what was depicted on them was not indicated in the case). The colleague would never have known about this, but the guy HIMSELF showed the girl that he could read her correspondence.
Article: Criminal Code of the Russian Federation, Article 272. Illegal access to computer information
Punishment: restriction of freedom for a period of five months.
Court document: Judgment in case 1-53/2016
I wanted to find an example of a case in which a woman would be tried for reading her husband’s/friend’s email or social networks. But there were no such people... This is strange, because we are very curious and every third person does this. But, apparently, men do not consider this situation a reason to report a loved one to the police.
Where to report a crime
When considering cases where there has been a violation of the confidentiality of correspondence, the injured party must present the facts of the offense committed. First of all, it is necessary to fill out and submit to the police a statement in the prescribed manner, drawn up in the following order:
- Full name of the police station to which the application is addressed.
- Applicant details Full name.
- Phone number, exact registration address.
- The essence of the appeal.
- Explain how the attacker violated the confidentiality of correspondence.
- Indicate the requirements for taking action against the offender.
- Enter the date of application and personal signature.
Along with the application, it is necessary to present facts and disclose information from personal correspondence. During the consideration of the case materials, you can submit an application for compensation for damage caused. If police officers refuse to accept such a statement, you must contact the prosecutor's office or court.
How are criminals identified?
The heroes of the stories described above are united by excessive arrogance. Many of them had an education in the IT field (the files mention that they worked as system administrators and programmers), but they completely forgot about the simplest rules of conspiracy. Namely:
- Accessed the network from your home or office computer;
- Did not use ANY means to hide your IP address;
- Some used a mobile phone that was registered to them to access the Internet;
- They quietly stored traces of the crime on their hard drive;
- They told the victims about what they had done.
These facts served as evidence of their crimes.
Did the heroes know that all this could serve as proof of their guilt? Probably yes. But under the influence of emotions (jealousy, resentment, excitement) they forgot about caution. And, perhaps, many of them did not even imagine that such trifles could actually lead to prosecution.
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