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English Language Page Despite the fact that Part 2 of Article 23 prohibits the use of technology not authorized by a court decision in the obtainment and the use of private information, special services justify their activity by citing regulatory acts that limit control over compliance by FSB and other agencies with the said provisions of the RF Constitution to an even greater extent. On the basis of Order ¹130 of the RF Ministry of Communications “On the Procedure for Introducing Technical Systems to Support Investigative Measures within Telephone, Cellular, and Wireless Communications Networks and General-Use Paging Systems,” dated July 25, 2000, law enforcement officials suggest that commercial providers should install systems that would function independently of the provider. The technical description of the system suggests that law enforcement personnel will be given all access keys, a dedicated channel and a mobile control panel (2). They can obtain free and uncontrolled access to communications nets. At the same time, Articles 5 and 9 of Federal Law “On Investigative Activities” order the issuance of court approval for initiators of investigative activities. However, external companies providing telephone, electronic and other communication services are barred from getting information about the existence of a court permit for inspection of correspondences. Therefore, invasion of privacy actually increases, because there are no mechanisms to control the activities of governmental agencies engaged in investigative work (3). Uncontrolled telephone communications monitoring became the subject of at least three court cases between 1995 and 2000 (suits brought by P. Netupsky, L. Balakina, I. Chernova) (4). Though such monitoring was found illegal for different reasons in all three cases (5), the same SORM-1 and SORM-2 systems continue to be introduced almost without alteration. We should recognize that the rather rare attempts on the part of Internet providers to resist introduction of SORM-2, had for all practical purposes stopped by 2001 (6). Commercial providers must be licensed, and this makes them vulnerable. Licensing terms and conditions, among other things, specify that providers installing SORM system must give assistance to law enforcement agencies. The Ministry of Communications and its regional structures do not take into account the ambiguous nature of SORM’s legality and threaten to withdraw the provider’s license if the latter disobeys. Court proceedings on the illegal nature of such actions may last many months or even years, which cannot but ruin a business, even if the final result of the litigation happens to be favorable for the provider (7). Additionally, there is no broad-based public resistance to the implementation of SORM-1 and SORM-2. Monitoring of the press and Internet sites indicates a reduction of articles on the topic, and no new court cases have been initiated. Meanwhile, the activities of governmental bodies entrusted with supervisory and control functions continue to expand in the same direction: groundless restriction of people’s freedoms and invasion of privacy. This includes the work of the Federal Agency on Legal Protection of Results of Intellectual Activities of Defense, Special and Dual Purpose (FAPRID), established in the fall of 1998 and subordinated to the Ministry of Justice. Moreover, the limited public interest in this issue results in a situation where the activities of relevant state structures are brought to open discussion only after such questionable activities have become routine. FAPRID exercises control over information sent abroad with the aim of preventing the export of information of national importance. To this effect, FAPRID issued Order ¹31 “On the Legal Examination of Commodities for the Purpose of Identifying Results of Intellectual Activities of Defense, Special and Dual Purpose, the Rights to which Belong to the Russian Federation” dated August 21, 2000. Order ¹31 as such does not contradict the RF Constitution since it excludes from examination “material carriers, hardware and software which belong to individuals and which are taken abroad for personal use” (Annex 1). However, the management of the St. Petersburg Customs issued Letter ¹24-05/3840, dated March 26, 2001, allegedly adding on to Order ¹31 but actually introducing total control over audio, video and electronic information sent abroad by individuals; all information carriers are subjected to mandatory examination. Audio and video cassettes and CDs are accepted at city post offices for delivery only “in a packing sealed by the personal seal of an inspector of the Information and Technical Department of the Customs Department.” What is more, there is a charge for this service (8). Nevertheless, we must make note of some positive trends in the new Russian legislation. In 2001, the European Convention for the Protection of a Person in Connection with Automated Processing of Personal Data was ratified, which implies registration and substantiation of the necessity of existing data bases for personal data collection in Russia. Such data bases include information that is subjected to automated processing collected in the passport issuing departments, taxation inspections, traffic inspection agencies, military commissariats and various law enforcement agencies (9). Under the Convention, the regulation of access to and use of personal information contained in the data bases of state agencies must be founded on the principles of respecting fundamental human rights. The Convention is aimed at protecting the right to inviolability of privacy. (Issues of collecting, storing and transmitting personal data are considered therein.) (10). The priority of international law, stipulated by the Constitution of the Russian Federation, obligates the Russian government to legalize appropriate rules in keeping with the relevant international standarts. Given the above, we may assume that the overall situation, including the use of SORM, at least in a reduction in the level of secrecy and an increase in control over the process of introduction and operation of the system, may change. Today, however, SORM installation remains top secret and closed to public scrutiny. Unauthorized invasion of domicile is another violation of the constitutional norm of the right to inviolability of privacy. Normally occurrences of invasion into living quarters are related to professional activities of law enforcement personnel. In carrying out orders based on federal laws and instructions from their superiors, law enforcement officials violate constitutional norms. Law enforcement personnel consider their conduct justified, though their actions may be a glaring violation of the RF Constitution and the RF Criminal Code. To give just one example, in February of 2001, in the Chechen Republic, MVD officers, acting on orders, for the second time broke into R. Kutaev’s apartment while he was out. When he returned, the apartment was a mess and some belongings, including money and decorations, disappeared (11). Violations of medical secrecy, when of a medical case containing private information is made public. Are also frequent.. It is difficult to register such cases because people are reluctant to turn to the courts for protection, but regional monitors sometimes come across such situations. For instance, the director of the Kirov House of Veterans (Kirov region) decided to collect medical information about one of the veterans and publicized it in the media. Likewise, in violation of medical secrecy and current legislation, employees of the outpatient clinic ¹3 of the city of Kirov, at the request of a judge of the Leninsky district court, handed over the medical file of a plaintiff to a third party. Lack of proper control over the compliance with departmental instructions by postal service employees leads to frequent opening and damaging of letters and parcels. Reports were coming from many regions of the Russian Federation (Kirov, Novosibirsk, Orenburg, Kurgan, Khakassia, Krasnodar, Sverdlovsk and Ivanovo) in 2001 about the receipt of correspondence stamped “received damaged.” This stamp removes grounds for formal complaints regarding violations of privacy of correspondence, but nevertheless gives reasons to assume that the inspection of correspondence still exists, especially since some of the opened letters were not marked with the “received damaged” stamps. In the Kurgan region, for instance, only one damaged letter received by the Kurgan regional branch of the public movement “For Fair Elections” bore this stamp. It is often regional practice to interpret federal laws very broadly, including Federal Law “On Protection of State Secrets.” Many regulatory documents were adopted on such a basis. In the Saratov region, the department of state service and personnel of the local government adopted Statute “On Procedures of Keeping Personal Files on People Occupying State Positions in the State Service of the Saratov Region,” with an annex included. This annex is a form consisting of a long list of questions covering not only the respondent himself/herself, but also personal information on family members, and even on previous families (12). The desire to faithfully follow the regional law resulted in the personnel department of the regional hospital carrying out the questionnaire-based survey of its doctors, who are not civil servants (13). Since the nature of the survey was mandatory, the doctors could not refuse to fill out the forms. As a result, confidential information was received from the respondents whose consent or opposition was not taken into account. (1) The bill “On Introducing Amendments into Federal Law “On the Participation in International Information Exchange,” which envisages the introduction of legal entities authorized by the government forobtaining access to information, which may contradict Russian legislation, was submitted to the State Duma. On the same day, the draft law of 1997 “On the Right of People to Information” was rejected. (2) Introduction of SORM-1 system, with subscribers telephone communications bugging capability, was not accompanied by any notable discussion in the press. Since state monopoly rules out any competition in the market of automated telephone services, law enforcement agencies had no problem introducing SORM-1 at enterprises that are in fact owned by the state. (3) It should also be stressed that under Article 15 of the RF Constitution, a regulatory act affecting human rights must be published in order to become law. Order ¹130 of the Ministry of Communications was not made public and is actually an internal ministerial instruction that functions as a legislative act. For more information, see: Yu. Vdovin, “Telephone Right For the Sake of Man” on the web-site of the Perm Regional Human Rights Center — http://www.prpc.ru/newspaper.htm¹33. (4) See the corresponding chapter in the Collections of Reports Human Rights in Russian Regions for the years 1998–2000. (5) On September 25, 2000, the Supreme Court satisfied the claim of journalist P. Netupskyá who protested against Order ¹130 of the Ministry of Communications of the Russian Federation. The court ruled that the procedure of monitoring personal telephone talks without presented court decision proving that such monitoring is indispensable, was illegal. (6) Company providers are offered the SORM-2 introduction plan, which envisages their own financial participation in purchasing and installation of appropriate equipment (it is underscored that installation must be done secretly), and in follow up maintenance of the system. Thus subjects of operative-detective activities have the opportunity to save money by using unrestricted access to the Internet. (7) Pressure was brought to bare upon the Volgograd-based Bayard-Slaviya-Communications company and on a number of private Internet provider companies in Nizhnii Tagil, Krasnodar territory and Irkutsk. (8) V. Kostyukovsky, “Everybody Is Suspected And Everybody Pays.” Novyye Izvestia (May 18, 2001, ¹82). (9) Article 2 of the European Convention on the Protection of a Person in Connection with Automated Processing of Personal Data. (10) See the European Convention on the Protection of a Person in Connection with Automated Processing of Personal Data. (11) “In Chechnya Police Robbed the House of a Human Rights Activist.” Prima (February, 20, 2001, ¹198). (12) It must be noted in this connection that Federal Law “On Protection of State Secrets” envisages checks on state servants for their compliance with the requirements for state servants. But nevertheless, no questionnaire-based surveys are needed under this law. (13) E. Sineva, “Confession According to the Table of Organization.” Obshchaya Gazeta (March 22, 2001, ¹12). Back |
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