Federal laws in the information sphere. Topic: Basic provisions of the Federal Law on Information, Information Technologies and Information Protection

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ESSAY

Basic Provisions of the Federal Law on Information, Information Technologies and Information Protection

Introduction

information law offense

Over the past decade, Russia has adopted a significant number of regulations, including federal laws, presidential decrees and government decrees. Russian Federation, both entirely devoted to the issues of regulating relations that arise in the process of creating, transforming and consuming information, and affecting information relations by separate norms. The set of legal norms governing information relations forms a relatively new and actively developing branch of Russian legislation, which has received the name "information law" in the literature.

The Constitution of the Russian Federation is the basic law that forms the information legislation. Implementation of fundamental rights and freedoms of citizens in information sphere is based on the principle of freedom of information enshrined in the Constitution of the Russian Federation. The main object of legal relations here is the right to information. The right to information has been developed in other norms of the Constitution of the Russian Federation. In general, the right to information can be characterized as a guarantee of the full realization of personal, socio-economic and political rights of citizens.

One of the most important legislative acts in the information law system of Russia is the Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and Information Protection” (hereinafter referred to as the Law on Information, the Law of 2006).

It is important to note that the Law on Information, along with the norms of direct action, contains backbone information and legal norms that are subject to further development in legislative and other regulatory legal acts industries information legislation.

1. Subject of regulation of the Information Law and subjects of legal relations in the field of information

The process of expanding the boundaries of informatization modern society, all its state and non-state structures, leads to the expansion of the sphere of relations regulated by the norms of information legislation. The content of such relations is determined gradually under the influence of external, objectively occurring and historically determined processes of a socio-economic, political and other nature.

The Law on Information regulates three groups of relations that are quite capacious in content:

) relations arising in the exercise of the right to search, receive, transfer, produce and disseminate information (Article 29 of the Constitution of the Russian Federation);

) relations arising from the application of information technologies and means of their support (for example, legal relations for the creation information networks);

) relations arising from the protection of information (for example, related to the right to protect privacy, protect information from unauthorized access).

The first area of relations regulated by the Information Law is defined by Part 4 of Art. 29 of the Constitution of the Russian Federation, which establishes the right of everyone to freely seek, receive, transmit, produce and distribute information in any legal way.

The second area of relations regulated by the Law on Information is limited to the use of information technologies. Based on Art. 2 of the Law on Information, where information technologies are understood as processes, methods for searching, collecting, storing, processing, providing, distributing information and methods for implementing such processes and methods, and Art. 12 of the Law on Information, which defines the boundaries of state regulation in the field of application of information technologies, this area includes the following relations:

search for information;

collection of information;

data storage;

data processing;

transfer of information;

provision of information (receipt and transmission);

dissemination of information (receipt and transmission);

production of information;

development of information systems (a set of information in databases and information technologies and technical means that ensure its processing) to provide information, including:

creation of information systems;

commissioning of information systems;

operation of information systems;

ensuring the interaction of information systems;

creating conditions for effective use information and telecommunication networks.

The third area of relations regulated by the Law on Information is related to ensuring the protection of information, which, according to Art. 16 of the same Law includes the adoption of legal, organizational and technical measures aimed at:

ensuring the protection of information from unauthorized access, destruction, modification, blocking, copying, provision, distribution, as well as from other illegal actions in relation to such information;

observance of confidentiality of information of limited access;

exercising the right to access information. A comparative legal analysis of these provisions in the context of other norms of this Law allows us to conclude that there are a large number of legal conflicts in it.

So, for example, in one case if in Art. Art. 1, 12 of the Law on Information are indicated as independent information processes- receiving information, transmitting information and disseminating information, then in Art. 2 of the same Law, the dissemination of information, as well as the provision of information, is disclosed through the receipt and transmission of such information.

Otherwise, if Art. 2 of the Law on Information, access to information is disclosed through the receipt and use of information, then in Art. 8 access to information is already defined as its search and receipt. At the same time, the use of information in accordance with Art. Art. 6, 7 of the Law on Information already includes its dissemination.

The essence and nature of social relations that arise between various subjects in the information sphere are largely determined by the characteristics and legal properties of information - the main object, about which these relations arise.

The object of information relations has undeniable specific properties. This specificity is predetermined by the multidimensionality and versatility of the very concept of "information". Accordingly, information relations, as a rule, do not act in pure form. Most often they accompany other relations in the field of management, state building, international cooperation, in the field of economy, life of citizens, etc. The processes of this support are increasingly regulated by legislative and other regulations: obligatory provision of relevant types of information, the procedure for its dissemination, rules for access to it and restrictions, liability for certain offenses, ensuring information security etc.

The Law on Information has a more balanced approach to regulating the essence of information than its predecessor: refusing to use the concept of "information resource", the legislator replaced it with the concept of "documented information" (information recorded on a material carrier). Thus, documentation has become one of the properties of information.

The legislation finally has a definition of an electronic message: "information transmitted or received by the user of the information and telecommunications network." From this definition it follows that an electronic message is a method of fixing information, similar to documentation (clause 1 of article 149 of the Civil Code of the Russian Federation on so-called non-documentary securities), facsimile or other copying.

The Law on Information also names a special subject of legal relations in the field of information - the operator of the information system. This is a person carrying out activities for the operation of an information system, including the processing of information contained in databases. By general rule, the owner of the technical means used in this case is considered the operator, but it can also be the person with whom this owner has concluded an agreement on the operation of the information system. If the information system is not state or municipal, then the procedure for its creation and operation is determined by its operator (Part 6, Article 13 of the 2006 Law). Therefore, before engaging the operator in the provision of services for the operation of the information system and concluding an appropriate agreement with him, it is important to familiarize yourself with its internal rules or regulations (which are usually included in the terms of the agreement and therefore have legal force for the parties).

2. Access to information. Provision and dissemination of information

In the legal regulation of "information" relations, one of the central ones is the problem of access to information. In accordance with the 1995 Law, the possibility of access to information was: 1) in accordance with Art. 10, selection criterion certain types information - open / public and limited access ( state secret and confidential information) 2) in accordance with Art. 12, one of the subjective rights of its owners (owners).

The provisions of the 2006 Law are, in fact, similar to those described: Part 2 of Art. 5 proceeds from the same division of information into public and restricted access, and Art. 8 directly defines access to information as a subjective right of its owner. We will dwell on the latter in more detail, since the regulation of the right to access to information, as already noted, is the central issue of any "information" legislation.

P. 6 Art. 2 of the Law on Information defines access to information as the possibility of obtaining and using it. This definition looks dubious from the point of view of legislative technique. It seems that access is always a matter of fact, while the possibility of obtaining and using information is really only the right to access it. This misunderstanding is most clearly manifested in Part 4 of Art. 8 of the 2006 Law, which establishes a list of types of information, access to which cannot be restricted (in fact, in the sense of the word used in the Law, it is possible to restrict not the access itself, but the right to it), as well as in Part 6 of the same article, which provides the right to appeal against decisions and actions (inaction) of authorities that already violate the right to access to information.

The novel is approved in Part 8 of Art. 8 of the Law on Information is a list of information that is provided free of charge. This list contains three items: 1) information about the activities of authorities posted in information and telecommunication networks (meaning the Internet), 2) information affecting the rights and obligations of the person concerned, and 3) other information established by law (as an example, the provisions of the Federal Law of December 26, 1995 "On Joint Stock Companies" on the provision of certain information to shareholders). In the field of paid provision of information by the authorities, everything remained the same: a reference was made to other laws (for example, to Article 75 of the old Forest Code of the Russian Federation).

The provision of information refers to actions aimed at obtaining it by a certain circle of persons or transferring it to the same circle of persons, and dissemination - actions aimed at obtaining information by an indefinite circle of persons and its transfer to the same circle of persons (parts 8, 9 of Art. 2 of the Law on Information). These definitions become clearer when reading Art. 10 of the Law on Information, from which, in particular, it follows that the provision of information is carried out only in pursuance of the agreement of the parties (part 4), in other cases the information is distributed. Unfortunately, the Law on Information does not even establish the basis for the legal regulation of contracts aimed at providing information, including confidential information, although in practice their conclusion is quite common.

The dissemination of information is carried out, as a general rule, freely, with certain exceptions, which are specified in the Law on Information. In particular, in the Law on Information, the requirement to restrict the dissemination of information applies only to information that is aimed at propaganda of war, incitement of national, racial or religious hatred and enmity, as well as information for the dissemination of which criminal or administrative liability is established (available in mind a state secret and different kinds confidential information). However, of course, it is also possible to limit the dissemination of information by agreement of the parties on its provision, which is important to remember when concluding such agreements.

In part 5 of Art. 9 of the Law on Information, for the first time, the concept of professional secrecy appeared: information received by citizens (individuals) in the performance of their professional duties or organizations in the exercise of certain types of activities. But in the legislation at that time there was already and still exists the concept of an official secret (Article 139 of the Civil Code of the Russian Federation), which, apparently, has the same meaning. Attorney secrecy (Article 8 of the Federal Law of May 31, 2002 "On Advocacy and the Bar in the Russian Federation"), auditing (Article 8 of the Federal Law of August 7, 2001 "On Auditing"), banking (Art. 26 of the Federal Law of December 2, 1990 "On Banks and Banking Activities"), notarial (Articles 16, 28 of the Fundamentals of Legislation on Notaries), medical - all these are types of official secrets.

3. Responsibility for offenses in the field of information and protection of information

Provisions on liability for offenses in the field of information are contained in Art. 17 of the Law on Information. In this article, the term "disclosure" is used, which, in fact, refers to its dissemination.

In the area of civil liability for the illegal dissemination and use of information, there are also certain rules. First, in part 2 of Art. 17 of the Law on Information establishes the possibility to demand compensation for moral damage caused by such an offense. Here it is necessary to bear in mind the rules of Art. 151 and paragraph 2 of Art. 1099 of the Civil Code of the Russian Federation. Thus, Part 2 of Art. 17 of the Law on Information allows you to claim compensation for moral damage if the illegal dissemination and use of information violated not only non-property, but also the property rights of a citizen (individual). However, such a claim in any case can be satisfied only if the offender is at fault.

Secondly, in Part 2 of Art. 17 of the Information Law establishes the grounds for exemption from liability in the form of damages: such a requirement is not subject to satisfaction if it is declared by a person who did not take measures to maintain the confidentiality of information or violated the requirements established by law for the protection of information, if the adoption of these measures and compliance with such requirements were the responsibility of that person. It seems that the legislator took advantage of the meaning of the provisions of paragraph 2 of Art. 1083 of the Civil Code of the Russian Federation on accounting for the gross negligence of the victim, although there the right, on its own initiative, to limit the liability of the tortfeasor is granted not to the legislator, but to the court. However, we believe that judicial practice will be guided by the provisions of the special Law on Information.

And, finally, from the point of view of the Law on Information, persons providing services are exempted from liability: 1) for the transfer of information provided that it is transferred without making changes and corrections mass media) and 2) on the storage of information and providing access to it, if the person providing such services could not know about the illegality of dissemination of information (this rule, in particular, applies to various types of companies providing hosting services).

One article is devoted to the issues of information protection in the Law on Information. Within the framework of this norm, there is a legislative consolidation of the obligations of the information owner (or information system operator) to ensure the protection of information (only in cases established by law), including, for example, preventing unauthorized access or transfer of information, as well as the possibility of immediate recovery of modified or destroyed information .

Bibliography

1.Kovaleva, N.N. Commentary to the Federal Law of July 27, 2006 No. 149-FZ "On Information, Information Technologies and Information Protection" (item-by-article) / N.N. Kovaleva, E.V. Cold [Electronic resource] - ATP ConsultantPlus. 2007

2.Lebedko, Z. Commentary on the adoption of amendments to the Law “On information, information technologies and information protection” / Z. Lebedko // Administrative law. - 2012. - No. 3.

The procedure for admitting persons to other types of information with restricted access, taking into account the provisions of the Federal Law "On Information, Information Technologies and Information Protection", is within the competence of the relevant officials (heads ...

When defining the concept of "information sphere", it should be taken into account that at present there is no such well-established unified legal concept. If we consider the concept of "information sphere" (environment), which in the legislation is understood as "the sphere of activity of subjects associated with the creation, transformation and consumption of information" (Federal Law "On Participation in International Information Exchange"), then it is, in our opinion, , too general. In addition, the Law, for example, does not contain a sign of information storage, which is called one of the main ones for a document; instead of the signs specified in the Constitution of the Russian Federation (Article 29, paragraph 4), others are proposed: instead of "production" - "creation and transformation", instead of "search, receipt, transfer, distribution" - "consumption", although these signs are not one order. Below is a definition given in relation to objects and their main features.

The information sphere is an environment for the circulation of information (production - distribution - consumption), in which subjects realize their needs and capabilities in relation to information.

The main objects of the information sphere are:

1. Information, including informational resources- arrays of documents, databases and data banks, all types of archives, libraries, museum collections, etc., containing data, information and

knowledge recorded on the relevant information carriers.

2. Information infrastructure, which includes a set of information systems:

a) organizational structures that ensure the functioning and development of the information sphere, in particular, the collection, processing, storage, distribution, search and transmission of information.

b) information and telecommunication structures - geographically distributed state and corporate computer networks, telecommunication networks and systems special purpose and general use, networks and data transmission channels, means of switching and information flow management;

c) information, computer and telecommunication technologies;

d) media systems.-

The structure of social relations and legal relations derived from them should be determined based on the standard information circulation cycle, which can be represented as the simplest formula: production - distribution - consumption - production, and the basic powers of subjects in the information sphere, established primarily in the Constitution of the Russian Federation: freely seek, receive, transmit,

produce, disseminate information, and have the right to privacy, secrecy and protection against so-called " harmful information".

At the same time, it is necessary to take into account three main cases of the transition of social relations into legal relations: 1) at the will of the subject, 2) in addition to the will and desire of the subject, 3) regulated by morality, customs, habits, ethical norms, where the right is only

guarantees freedom of conduct. For the effective regulation of social relations by the rules of law, one should take into account the objective laws that operate both in the information sphere as a whole and in its individual areas, which can be distinguished on the basis of the general laws of the development of nature, society, and thinking in relation to the information sphere.

The main objects of the information sphere are:

1. Information, including information resources - arrays of documents, databases and data banks, all types of archives, libraries, museum collections, etc., containing data, information and

knowledge recorded on the relevant information carriers.

2. Information infrastructure, which includes a set of information systems:

b) information and telecommunication structures - geographically distributed state and corporate computer networks, telecommunication networks and systems for special purposes and general use, networks and data transmission channels, means of switching and managing information flows;

c) information, computer and telecommunication technologies;

d) media systems.-

produce, disseminate information, and have the right to privacy, secrecy and protection from so-called "harmful information".

Objective laws of development of the information sphere and information relations

TO general laws for the information sphere, one can attribute the objective law of organization and restrictions of information in social systems: the higher the level of organization of the system (where information acts both as a means of organizing the system and as a qualitative characteristic of the degree of its organization), the higher should be the level of regulation and restrictions. In the conditions of a multiply increasing volume of information consumed, the formation of an information society, in the absence of a civil society, the responsibility for the social regulation of these processes lies primarily with the state. This provision was reflected in the Doctrine of Information Security of the Russian Federation, which concluded: "Improving the legal mechanisms for regulating public relations arising in the information sphere is a priority direction of state policy in the field of ensuring information security of the Russian Federation."

Another objective law of the development of the information sphere, which is also reflected in the transition period to the information society, is the law of information advance: the solution of the problems of information interaction should be ahead of each next step in other areas of social activity, which makes it possible to more fully coordinate reforms, create favorable conditions for the functioning of markets for goods, services, capital and labor, to ensure an equal right to acquire ownership of property, to own, use and dispose of it, to pursue a coordinated policy in various areas. A single information space should precede the creation of a single economic and legal space, as well as Information Support should be ahead of every next step in decision-making in various social spheres. The reverse also follows from this - failure to solve the problems of information interaction or delay here will necessarily lead to a serious lag in other areas of social activity, which is happening today. Apparently, this is also the reason for the appeal of the leaders of the G8 in the Okinawa Charter of the Global Information Society(2000) to close the international information and knowledge divide, and also led to the conclusion that "a solid IT policy and action framework can change the way we interact to advance social and economic progress around the world."

The general laws of information interaction should also include a group of laws relating to the organization and operation of complex systems, which were discovered at the beginning of the 20th century. A. A. Bogdanov in his "Tectology" -. The essence of these laws (laws of additivity, (from lat. addere - add) is that the total potential of the system

is determined by the nature of the interaction of its subsystems. So, if the subsystems are indifferent (indifferent) to each other, then the total potential of the system is equivalent to the potential of one of the subsystems. If the subsystems are at war with each other, then the potential of the system is less than the potential

the weakest of the subsystems.

And if the interaction of all subsystems is purposeful, then the potential of the system is much greater than the sum of the potentials of all subsystems. This is the law of superadditivity when the whole is greater than the sum of its parts.

In the field of information production, there is an objective law of incomplete use of information, including when making decisions in management activities, which is determined both by the paradox of redundancy of information and by the inability (bad faith) of subjects to fully use it. In the current legislation in this area, "production", "creation", "transformation" of information are singled out. Legal regulation is present here in the form of regulatory norms that contribute to the creation of organizational and economic prerequisites for the development and improvement of information production; in the form of guarantees of freedom of creativity, behavior, education, etc.; in the form of protection and protection of intellectual property rights, as well as in the form of prohibitions on the production of "harmful" information.

In the field of information dissemination, there is an objective law of information distortion as it moves, which is associated with the different ability and readiness of subjects to perceive it. Legislators here are unanimous, singling out only the "dissemination" of information. At the same time, relations related to the transfer of information, which is enshrined in Art. 29 of the Constitution of the Russian Federation and also applies to the dissemination of information, have not been properly reflected in the legislation. According to the method of distribution, direct and indirect distribution can be distinguished.

With direct distribution, the creator of the information product directly affects the consumer (actual communication, the transfer of ideas in the educational environment, (lectures, conferences, seminars, rallies, theatrical performances and other cultural events). Legal regulation provides here for the establishment of prohibitions on the dissemination of confidential and " harmful" information, including false information and slander, and liability for this, as well as legal protection and protection of copyright and related rights.

Rice. 1. Information sphere as object of law

In case of indirect distribution, there is an intermediary between the creator of information and the consumer - a means of fixing and transmitting information, the presence of which predetermines the mass nature of such information relations. As the historical development of means and technologies for disseminating information, the mass character of information exchange and the importance of information in society grew, which predetermined a high degree of legal regulation in this area, including the protection and protection of the rights to the integrity and confidentiality of information disseminated, to intellectual property, to information systems to protect against the spread of "harmful information".

In the field of information consumption, there is an objective law of forced alienation and socialization of information, which is connected both with the reluctance of subjects to voluntarily give up their information, and the need for socialization of information in the interests of realizing the information rights of citizens, building an information society and preserving and developing a single information space of the country. In the current legislation in this area, a number of concepts are distinguished: "consumption", "search", "collection", "receipt", "accumulation", "storage". Legal regulation should provide here for the protection and protection of the rights to access to information, the rights to privacy, to secrecy and to intellectual property, the rights to protection from the impact of "harmful" information, the rights to information systems and the interests of the state to preserve a single information space country.

"Some authors propose to consider other components as part of the information sphere: the market of information technologies, means of communication, informatization and telecommunications, information products and services; the system of interaction between the information space of Russia and the world's open networks; the system for ensuring information protection (security); the system of information In our opinion, we cannot agree with such an approach, since the listed components are rather qualitative characteristics, conditions, signs, in the presence of which the totality of system objects forms a single information space.

2 The implementation of this provision involves: assessment of the state and effectiveness of the application of existing

legislative and other regulatory legal acts in the information sphere and the development of a program for their

improvement; creation of organizational and legal mechanisms for providing information

security; determination of the legal status of all subjects of relations in the information sphere, including

users of information and telecommunication systems, and establishing their responsibility for

compliance with the legislation of the Russian Federation in this area; creation of a system for collecting and analyzing

data on the sources of threats to the information security of the Russian Federation, as well as on the consequences

their implementation; development of regulatory legal acts that determine the organization of the investigation and

the procedure for litigation on the facts of illegal actions in the information sphere, and

also the procedure for eliminating the consequences of these unlawful actions; formulation development

offenses, taking into account the specifics of criminal, civil, administrative, disciplinary

responsibility and the inclusion of relevant legal norms in criminal, civil,

administrative and labor codes, to the legislation of the Russian Federation on state

service. 3 Bogdanov A. A. Tectology. (General Organizational Science). In 2 books. M, 1989. S. 304, 351; Bodyakin V.

I. Where are you going, Man? Fundamentals of evolutionology (informational approach). M., 1998. S. 332.

Federal laws in the information sphere. Topic: Basic provisions of the Federal Law on Information, Information Technologies and Information Protection

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