August 30, 2011 at 17:32Re: Legal aspects of the actions of the owners of laptops in case of theft
On August 29, an article appeared from Mrs. Glazkova on the topic “Legal Aspects of the Actions of Laptop Owners in the Case of Theft”. For comment on this article, I turned to S.P. Kubantsev, Ph.D., professor of the Department of Criminal Law, Process and Criminalistics ATiSO, senior researcher at the Department of Criminal Legislation and the Judiciary of Foreign Countries of IZISP under the Government of the Russian Federation.
Under the cat I quote his opinion on this article.
The person who wrote this article, apparently, did not delve deeply into the legal aspects of this topic. Starting even with the unfounded statement that the Federal Law “On Personal Data” is not applicable in this case due to the voluntary distribution of the data by the person to whom such data relates. At least a strange statement, given the fact that the specified person and had no idea that his personal data goes “to the side”. A statement about the extreme difficulty of determining the degree of guilt of the owner of a computer who “just installed and configured a program that captures the situation at certain points in time” is just a juggling. With the same success, it can be argued that the face only hit the other with a mount on the head, and the consequences of such an action did not depend on the striker.
In general, the fact of theft still needs to be proved, because the situation is quite real when the computer, with the spyware installed on it, will be specially transferred to a certain person / organization in one way or another in order to acquire confidential information, after which the true owner of the computer will claim the theft.
In the section “Guilt and Guilt” we are talking about a completely different subject - accidents, sources of increased danger and all that. There is nothing about the real attitude of a person installing such software on his computer. In fact, obtaining confidential information in a similar way (through an allegedly stolen computer), provided that this information is illegally distributed, i.e. without the consent of the person to whom such information relates, it will be qualified as a crime, punishment for which is provided for in various articles of the Criminal Code - 137, 138, 155, 183, etc., respectively, with compensation for material and moral harm in accordance with the Civil Code.
An indication in the article of the necessary defense seems completely unreasonable. For crimes such as theft and fraud are not associated with the violence necessary for the response to be qualified as a necessary defense from the point of view of the Criminal Code. Using a stolen item also does not imply the use of violence. Accordingly, in the absence of conditions necessary for the qualification of an act as a necessary defense, there can be no excess of such limits.
The following is a question of such a legal institution as “extreme necessity”. A classic example of extreme necessity will be the abandonment by a driver of a truck carrying perishable goods to help people in distress that threatens their lives (earthquake, flood, hurricane, etc.), as a result of which the cargo was rendered unusable. Here, the author takes the liberty of asserting that there is an emergency, justifying this with a reference to an article of the law. But does such a free interpretation of the rule of law by the author correlate with the real content of this legal norm? Of course not! Key phrase Art. 39 of the Criminal Code: "if this danger could not be eliminated by other means." If someone does not know, then it can be explained that law enforcement agencies are engaged in the fight against crimes, as well as their prevention. Therefore, in case of detecting signs of a crime, the person is obliged to report this to the police, and not to take independent actions to punish the perpetrators by obtaining and even distributing personal data affecting personal, commercial and other types of secrets protected by law. Independent fight against crimes, the so-called "Robinhood" is punishable!
The innocent harm done by the person who consciously installed spyware, received data through the use of such software, and then also used this data for their own purposes (obtaining their property, possibly stolen, but may also be voluntarily transferred to another person), I don’t even want to discuss . I will give just an example: coercion aimed at returning money previously provided under a loan agreement (on credit) will qualify as extortion, with all the ensuing consequences.
The situation is similar with a “purely criminal article” (Article 38 of the Criminal Code “harming the detention of the person who committed the crime”). There can be no talk of any detention at the crime scene. Moreover, the author himself says that the user of the "stolen" computer is most likely to be a bona fide purchaser of this thing.
Thus, this article is not based on Russian law, representing a typical philistine interpretation of legal norms when complex legal constructions are tried to be reduced to primitive perception. As a result of such insinuations, readers are misled about the legal consequences of specific acts. Following the advice of the author of this article, people may end up in the dock.
Under the cat I quote his opinion on this article.
The person who wrote this article, apparently, did not delve deeply into the legal aspects of this topic. Starting even with the unfounded statement that the Federal Law “On Personal Data” is not applicable in this case due to the voluntary distribution of the data by the person to whom such data relates. At least a strange statement, given the fact that the specified person and had no idea that his personal data goes “to the side”. A statement about the extreme difficulty of determining the degree of guilt of the owner of a computer who “just installed and configured a program that captures the situation at certain points in time” is just a juggling. With the same success, it can be argued that the face only hit the other with a mount on the head, and the consequences of such an action did not depend on the striker.
In general, the fact of theft still needs to be proved, because the situation is quite real when the computer, with the spyware installed on it, will be specially transferred to a certain person / organization in one way or another in order to acquire confidential information, after which the true owner of the computer will claim the theft.
In the section “Guilt and Guilt” we are talking about a completely different subject - accidents, sources of increased danger and all that. There is nothing about the real attitude of a person installing such software on his computer. In fact, obtaining confidential information in a similar way (through an allegedly stolen computer), provided that this information is illegally distributed, i.e. without the consent of the person to whom such information relates, it will be qualified as a crime, punishment for which is provided for in various articles of the Criminal Code - 137, 138, 155, 183, etc., respectively, with compensation for material and moral harm in accordance with the Civil Code.
An indication in the article of the necessary defense seems completely unreasonable. For crimes such as theft and fraud are not associated with the violence necessary for the response to be qualified as a necessary defense from the point of view of the Criminal Code. Using a stolen item also does not imply the use of violence. Accordingly, in the absence of conditions necessary for the qualification of an act as a necessary defense, there can be no excess of such limits.
The following is a question of such a legal institution as “extreme necessity”. A classic example of extreme necessity will be the abandonment by a driver of a truck carrying perishable goods to help people in distress that threatens their lives (earthquake, flood, hurricane, etc.), as a result of which the cargo was rendered unusable. Here, the author takes the liberty of asserting that there is an emergency, justifying this with a reference to an article of the law. But does such a free interpretation of the rule of law by the author correlate with the real content of this legal norm? Of course not! Key phrase Art. 39 of the Criminal Code: "if this danger could not be eliminated by other means." If someone does not know, then it can be explained that law enforcement agencies are engaged in the fight against crimes, as well as their prevention. Therefore, in case of detecting signs of a crime, the person is obliged to report this to the police, and not to take independent actions to punish the perpetrators by obtaining and even distributing personal data affecting personal, commercial and other types of secrets protected by law. Independent fight against crimes, the so-called "Robinhood" is punishable!
The innocent harm done by the person who consciously installed spyware, received data through the use of such software, and then also used this data for their own purposes (obtaining their property, possibly stolen, but may also be voluntarily transferred to another person), I don’t even want to discuss . I will give just an example: coercion aimed at returning money previously provided under a loan agreement (on credit) will qualify as extortion, with all the ensuing consequences.
The situation is similar with a “purely criminal article” (Article 38 of the Criminal Code “harming the detention of the person who committed the crime”). There can be no talk of any detention at the crime scene. Moreover, the author himself says that the user of the "stolen" computer is most likely to be a bona fide purchaser of this thing.
Thus, this article is not based on Russian law, representing a typical philistine interpretation of legal norms when complex legal constructions are tried to be reduced to primitive perception. As a result of such insinuations, readers are misled about the legal consequences of specific acts. Following the advice of the author of this article, people may end up in the dock.