Software developers do not agree with the definition of "special technical equipment" from the FSB

    On July 3, 2018, the FSB published for public comment a draft amendment to the Criminal Code (CC) of the Russian Federation , which introduces a definition of technical means for secretly obtaining information. The authors of the project explain that at present the meaning of the term “special technical means intended for secretly obtaining information” is not disclosed in federal legislation. Accordingly, it is required to formulate specifically which devices are considered spyware and fall under the phrase “illegal traffic” from the Criminal Code.

    According to the document, under the special technical means (ITS), intended for secretly receiving information, this Code refers to devices, systems, complexes, devices, special tools and software.for electronic computers and other electronic devices, regardless of their appearance, technical characteristics, and operating principles, which are intentionally given qualities and properties to ensure the function of covert (secret, non-obvious) information acquisition or access to it (without the knowledge of its owner) ".

    The FSB drafted this bill pursuant to clause 1 of the assignment of the Government of the Russian Federation dated March 12, 2018 No. RD-P4-1313 after a well-known story with a Kurgan farmer bought by a Chinese GPS tracker to monitor a cow. FSB officers detained him near the post office with the package in his hands. The farmer was brought to criminal responsibility, and in 2017, fellow villagers asked Vladimir Putin to investigate. After that incident, the Prosecutor General’s Office of the Russian Federation began an inspection. Amendments to the Criminal Code have been prepared so that such stories will not recur.

    In theory, the amendments should help humanize legislation and reduce the number of cases of criminal prosecution under Article 138.1 (“Illegal circulation of special technical equipment intended for secretly obtaining information”). From 2014 on this article, the number of convicts exceeds 200 people per year: in 2014 - 212 people, in 2015 - 259 people, in 2016 - 228, in 2017 - 254.

    The above clarified wording proposes to fix as a footnote to article 138.1. The explanatory note states that the proposed meaning of the term “JTS” corresponds to the legal position set forth in paragraph 3.1 of the Resolution of the Constitutional Court of the Russian Federation dated March 31, 2011 No. 3-P, is exhaustive and allows differentiating the JTS from technical means (objects, devices), which, by their technical characteristics, parameters, properties, or direct functional purpose, are intended only for domestic use by the mass consumer, unless they are deliberately given the necessary qualities and properties, including through special technical refinement, programming it for unobvious, covert application. ”

    However, the clarified wording from the FSB did not suit Russian software developers. Claims on behalf of a number of companies were expressed by Nikolay Komlev, Chairman of the Council of the Chamber of Commerce and Industry of the Russian Federation on the development of information technologies and the digital economy. In particular, the mention of software, which “was deliberately endowed with qualities and properties for providing the function of covertly obtaining information,” is most doubtful .

    According to Komlev, the majority of domestic and international software vendors use various systems for monitoring hacking programs to protect their intellectual property rights. In addition, developers collect information to provide users with technical support.

    In other words, banal functions such as web surfing data collection in Firefox browser fall under this definition . Although in the browser information is sent in an impersonal (anonymous) form, other programs do not carefully protect the privacy of users, and sometimes do not even warn them about collecting information. According to the new wording of the FSB, such actions can theoretically be qualified as secret surveillance of users - and judge developers under article 138.1, which provides for liability for illegal circulation of funds for secretly obtaining information in the form of restriction of liberty for up to four years, fine or forced labor.

    The Council of the RF Chamber of Commerce and Industry for the Development of Information Technologies and the Digital Economy no later than September will send its proposals to the FSB to the draft law.

    Public discussion of the bill ended on July 17, 2018. The planned date of entry into force is December 2019.

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