Legal aspects of the actions of the owners of laptops in case of theft

    This article continues the theme raised in a story about the Prey service , designed to track the location of a computer or phone in case it is stolen. At the very end of this article, the author asked himself: will the use of such programs have any negative consequences for the user himself? Let's try to answer.

    So, imagine a situation: you installed a spyware program on your computer, and after a while you found the absence of a computer. After some time, the program gave you news - in the form of a photograph, SMS with the coordinates of the device, or some other useful information. Is it possible, using this information, to somehow break the law and suffer for it? For example, if a computer is programmed to take pictures of the surroundings using a webcam, information that may be the secret of someone’s private life may be captured. The same goes for the rest of the information. And the law “On Personal Data”, meaningless and merciless, God himself ordered to draw to this situation. Although it’s just not applicable here . If the information needed to identify it,the new owner himself announced , then there can be no questions. And if the owner of the former " merge " the collected data on the Internet? And if this data includes photographs of a completely stranger girl, and even nude? Girl is to blame for something? Such surveillance can violate a number of laws at once - from Article 150 of the Civil Code protecting such intangible benefits as “privacy” to the Criminal Code . And there is also the CAO, in the fifth and thirteenththe chapters of which also provide liability for a number of "information" offenses. Therefore, the question of under what conditions it is possible to be held accountable, and under which it can be avoided, must be considered together, analyzing different codes.

    Guilt and innocence



    When installing such software on your computer, you should remember the rule "not caught - not a thief." Because the new owner of your computer, if found, will of course turn out to be a “bona fide purchaser” who bought it “from an unidentified person”. You yourself can assess the chances that this is true and the IQ of a person who buys expensive equipment from unfamiliar people. This is not included in the subject matter of our article, we simply state: there are small chances to suffer from the most “bona fide purchaser”, though. We presumption of innocence applies to crooks.

    First of all, you must understand the basic rule of bringing to any responsibility: in the general case, punishment is possible only with guilt. This word is familiar to everyone, and is understandable on an intuitive level.The fault in jurisprudence is the attitude of a person to his actions. It can be in the form of intent - when this person wants the onset of harmful consequences, or in the form of negligence - when these consequences occur regardless of his will, although they could be foreseen. The concept of guilt is provided for in both civil and administrative laws and in criminal law. In civil law, there are exceptions when liability can be brought without fault. Such cases include, for example, harming the so-called “ source of increased danger ”, that is, any activity that creates an increased danger to others. The owner of such a "source" in case of harm to others, will compensate the damage even if he is not guilty of this.

    The most common of these cases is harm in traffic accidents: the car is considered to be such a source. In this case, the driver must compensate for the damage if he does not prove that the damage was caused due to force majeure or the intent of the victim. But at the same time, he may be innocent of this incident from the point of view of the Criminal Code or the Code of Administrative Offenses. Therefore, compensation for damage caused in an accident is not a plea of ​​guilt , as many people think.

    If we look at the situation with "tracking" programs and try to find the fault of the owner of the computer, then it will be very difficult to do. In fact: he only installed and set up a program that fixes the situation at certain points in time. What will be recorded at these moments, and whether this information is confidential - the owner of the device does not know and cannot. Using the terminology of the Criminal Code, we can say that the actions of the owner watching the computer constitute the so-called “ innocent harm ”: “An act is deemed to be committed innocently if the person who committed it did not realize and, due to the circumstances of the case, could not recognize the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences and, in the circumstances of the case, should not or could not have foreseen them.

    In general, the forms of guilt are described in more detail in the Criminal Code; it even divides intent and negligence into two more subspecies. Intent can be direct when a person is aware of the danger of his actions and wants the onset of harmful consequences, and also indirect when he does not want the onset of consequences, but allows or does not care about them. Carelessness is also divided intofrivolity - when a person foresees the possibility of harmful consequences, but hopes to prevent them, and carelessness - when he does not foresee the consequences, although he can foresee them. And if we continue to consider the situation through the prism of the Criminal Code, we will see that our innocent infliction may well develop into an indirect intent - if we continue to collect information even after we have received it enough to establish the location of the computer. Here, by-eye assessments are already beginning, so you can make a mistake. But to spread information, which may be someone else's secret, on the Internet, of course, is not worth it in any case.

    Self Defense Rights



    Now we need to study two more basic concepts relating to the independent defense of our rights - the necessary defense and extreme necessity . They relate to situations where self-defense of one’s rights is already beyond the line that separates normal behavior from an offense. But even then responsibility can be avoided. The concept of necessary defense is associated with the independent suppression of an offense, which is carried out not by the authorities, but by the citizen himself. It is provided for in the Criminal and Civil Codes. The relevant article of the Criminal Code excludes such acts from the number of crimes:

    "1. It is not a crime to harm an offending person in the state of necessary defense, that is, when protecting the person and the rights of the defender or other persons protected by the law of the interests of society or the state from a socially dangerous encroachment, if this encroachment was associated with violence dangerous to the life of the defender or another person , or with an immediate threat of such violence.
    2. Protection against encroachment not associated with violence dangerous to the life of the defender or another person, or with a direct threat of such violence, is justified if it was not allowed to exceed the limits of the necessary defense, that is, deliberate actions clearly not corresponding to the nature and the dangers of assault. ”

    Since our hypothetical situation is not related to violent actions, the question will inevitably arise whether there was “exceeding the limits of the necessary defense”, that is, whether the measures taken to repel the encroachment corresponded to the danger of this encroachment itself. And here all sorts of “hypothetical situations” end: you can answer the question about the presence or absence of excess only by examining each specific case. In this case, it should be taken into account that your computer also has information constituting a personal secret, so that “defense” is at least equivalent to an encroachment. In addition, when it comes to damages, the Civil Code article on the so-called “ self-defense of civil rights ” can also be applied . Such self-defensealso similar to the necessary defense , the law also requires proportionality to its violation. The rules of the Civil Code on necessary defense also exclude compensation for harm only when its limits are not exceeded. But in the Code of Administrative Offenses there is no such article at all, which is understandable: the danger of administrative offenses is relatively small, and if you allow citizens to stop them, then the harm from this can be more than good.

    Finally, there is another reason for exemption from liability - the so-called extreme necessity . It is provided for in all three codes. Section 1067The Civil Code provides for compensation for damage caused in a state of emergency, “that is, to eliminate the danger that threatens the causer of the harm or other persons if this danger could not be eliminated by other means under the given circumstances”. But the Code of Administrative Offenses and the Criminal Code in this case do not recognize acts committed in a state of emergency, neither an offense, nor a crime. As an example, the wording of article 39 of the Criminal Code:

    «Не является преступлением причинение вреда охраняемым уголовным законом интересам в состоянии крайней необходимости, то есть для устранения опасности, непосредственно угрожающей личности и правам данного лица или иных лиц, охраняемым законом интересам общества или государства, если эта опасность не могла быть устранена иными средствами и при этом не было допущено превышения пределов крайней необходимости.»

    Соответствующая статья КоАП говорит не о превышении пределов, а о причиненном вреде, который не должен превышать предотвращенного. То есть, если вы действовали в состоянии «крайней необходимости», то ни к уголовной, ни к административной ответственности вас не привлекут, а вот материальный ущерб возмещать заставят. Эта норма очень похожа на случаи innocent liability provided for by the Civil Code, with the only difference being that the harm causer “by necessity” can be exempted from compensation, or forced to pay the one in whose interests the causer acted.

    And finally, a purely criminal article, the equivalents of which are not found in other codes: “It is not a crime to harm the person who committed the crime when detained for delivery to the authorities and to prevent the commission of new crimes, if it was not possible to detain such a person by other means and there was no excess necessary measures for this. ”Although in the case of“ spyware ”programs, the collection of information by itself is not“ detention ”, but since it is carried out for the purpose of detention, this article in this article uchae can be applied. Of course, our "bona fide acquirer" has every reason not to suspect that he bought the stolen equipment. But we, too, have every reason to believe that it was he who stole our computer. What are the chances that this is exactly what happened - is also not included in the subject of this article.

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