3. THE CONCEPT AND TYPES OF SOURCES OF CRIMINAL-EXECUTIVE LAW

Principle embodied in article 29 of the Universal Declaration of Human Rights: “In the exercise of his rights and freedoms, everyone shall be subject to such restrictions as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general well-being in a democratic society". There is a need for clear and comprehensive legal regulation of all those facets of state influence that in one way or another can significantly restrict human rights, including in the information and legal sphere.

The “Strategy for the Development of the Information Society in Russia”, adopted by the Security Council of the Russian Federation on July 25, 2007, notes that “Along with the expansion of the creative possibilities of the individual and society, the intensive development of information and communication technologies creates new opportunities for realizing threats to national security associated with violation of the established regimes for the use of information and communication systems, infringement of the constitutional rights of citizens, use of the capabilities of modern information technologies to carry out hostile, as well as terrorist and other criminal actions. The country's current information security system is insufficiently able to withstand modern threats related to the use of ICT capabilities for terrorist and other criminal purposes.

It should be noted that the state of information security in Russia was significantly influenced by the changes taking place in recent years, which led to the emergence of a number of factors in the political, economic and technical spheres. On the one hand, there has been a destruction of the command-administrative system of state administration and a transition to management based on the principles of legality, democracy and information openness is underway. At the same time, a low legal and informational culture persists in society.

Many researchers consider insufficient regulatory and legal framework in the field of regulation of information relations and ensuring information security as one of the most important factors. In recent years, the legislative framework of Russia in the field of regulation of relations with the use of ICT has been significantly changed. A number of new legislative acts have been adopted, some previously adopted have been amended and even repealed.

Legal support of ICT consists in the implementation of laws and by-laws that regulate the legal liability of officials, technical specialists and users for actions (or inaction) that led to the leakage, loss or modification of protected information, as well as intruders for deliberate unauthorized access to information and violation of processes its processing.

The specificity of the current stage of development of society lies in the fact that the further development of informatization processes depends not only on technological breakthroughs, but largely on how quickly existing regulations will be corrected and new ones will be developed that correspond to the changed realities of life. To date, the world community has formed a consensus that the effective use of ICT cannot be achieved without coordinated actions on the legal regulation of informatization processes and the development of relevant international regulatory documents.

In accordance with Article 15 of the Constitution of the Russian Federation, “The generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes other rules than those provided for by law, then the rules of the international treaty shall apply. Therefore, all regulatory legal documents in the field of ICT can be structured at several levels: international, federal level, acts of federal executive authorities, acts of the constituent entities of the Russian Federation, local governments, documents at the level of enterprises and institutions.

As for the national regulatory legal framework, in general, in the field of ICT in the Russian Federation, there are several dozen documents at the level of Federal Laws, Presidential Decrees, Government Decrees and other legal acts. The basic conceptual principles of relations in the information sphere are determined by the Constitution of the Russian Federation. In addition, a number of conceptual documents at the federal level (concepts, doctrines, strategies) have been adopted.

All regulatory documents currently in force in the Russian Federation can be divided by type into two groups:

1. Documents constituting the regulatory legal framework and defining the legal space in the field of ICT.

2. Documents that make up the regulatory and technical base in the field of information technology (standards, criteria and other documents that directly determine the organizational and technical requirements for the development and use of ICT, licensing activities, certification).

Federal laws and codes regulate relevant relations in the information sphere. At the federal level, by-laws are adopted in the form of Decrees of the President and Decrees of the Government, which ensure the implementation of legislative acts. At the government level, state standards and regulations are approved.

Federal ministries and departments develop intersectoral and sectoral regulations and introduce industry standards. Departmental regulatory documents are developed in order to develop and specify the provisions of federal documents, taking into account departmental (industry) specifics. Legislative and executive authorities of the subjects of the Russian government, as well as local governments, within their competence, can also develop regulatory legal acts in the field of ICT.

The system of normative legal acts of the Russian Federation in the field of ICT consists of several levels, from the international to the enterprise level. International acts include documents signed on behalf of the Russian Federation.

The main regulatory legal documents relating to information and telecommunication systems.

International Documents

1. "Convention Establishing the World Intellectual Property Organization" (Stockholm, July 14, 1967, as amended on October 2, 1979. Entered into force for the USSR on April 26, 1970).

3. Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Strasbourg, 01/28/1998. Ratified by the Law of the Russian Federation of December 19, 2005 No. 160-FZ.

5. Declaration of principles. "Building the information society is a global challenge in the new millennium." World Summit on information society. Geneva. 12/10/2003.

Concept documents of the Russian Federation

1. "The Constitution of the Russian Federation" dated 12.12.1993.

2. "Information Security Doctrine of the Russian Federation". Approved by Decree of the President of the Russian Federation dated September 9, 2000 No. Pr-1895.

3. "The concept of the use of information technology in the activities of federal government bodies until 2010." Decree of the Government of the Russian Federation of September 27, 2004 No. 1244-r.

4. "The concept of regional informatization until 2010". Approved by Decree of the Government of the Russian Federation of July 17, 2006 No. 1024-r.

5. Strategy for the development of the information society in Russia. (Approved by the Security Council of the Russian Federation on July 25, 2007).

Federal Laws of the Russian Federation

1. “On the Mass Media” dated December 27, 1991 No. 2124-1.

2. “On State Secrets” dated July 21, 1993 No. 5485-I.

3. "Civil Code of the Russian Federation" (Part 4 in accordance with the Federal Law of December 18, 2006 No. 231-FZ entered into force on January 1, 2008.)

4. "On electronic digital signature" dated 10.01.2002 No. 1-FZ.

6. “On Communications” dated July 7, 2003 No. 126-FZ (with the latest amendments and additions dated February 9, 2007 No. 14-FZ).

6. “On Trade Secrets” dated July 29, 2004 No. 98-FZ (as amended and supplemented on February 2, 2006 No. 19-FZ, dated December 18, 2006 No. 231-FZ).

7. “On personal data” dated July 27, 2006 No. 152-FZ.

8. “On information, information technologies and information protection” dated July 27, 2006 No. 149-FZ.

The Constitution of the Russian Federation defines the basic principles of relations in the information sphere and proclaims the implementation of the basic information rights and obligations of subjects. Everyone has the right to freely seek, receive, transmit, produce and distribute information in any lawful manner. List of information constituting state secret is determined by federal law. Freedom of the media is guaranteed.

In various areas of public administration, the legal regulation of information relations is carried out by acts of executive and representative federal authorities based on the provisions of the Constitution of the Russian Federation.

Thus, the mechanism of constitutional regulation of information relations is in dialectical unity with federal laws, acts of executive authorities, and other legal acts regulating various aspects of the legal protection of information objects from unlawful encroachments.

The constitutional status of information relations is enshrined in Art. 24, art. 41 (p. 3), Art. 42. At the same time, Art. 24 (clause 2) defines the subjects of information legal relations: on the one hand, these are state authorities, local governments (respectively, their officials), on the other hand, citizens of the Russian Federation.

The Basic Law secured the right of citizens to “the secrecy of correspondence, telephone conversations, postal, telegraphic and other communications. Restriction of this right is allowed only on the basis of a court decision” (p. 2, art. 23).

Of fundamental importance is the provision providing for the protection of information rights and freedoms of citizens. The protection of information containing information about personal life is ensured by Article 24 of the Constitution of the Russian Federation: “The collection, storage, use and dissemination of information about the private life of a person without his consent is not allowed.” The Criminal Code of the Russian Federation provides for appropriate punishment (Article 137) for the illegal collection or dissemination of information about the private life of a person constituting his personal or family secret without his consent. Law No. 149-FZ also prohibits requiring a citizen to provide information about his private life, including information constituting a personal or family secret, and receiving such information against the will of the citizen.

The Constitution of the Russian Federation has fixed quite specific rights of citizens to information. Thus, “public authorities and local self-government bodies, their officials are obliged to provide everyone with the opportunity to familiarize themselves with documents and materials that directly affect their rights and freedoms, unless otherwise provided by law” (paragraph 2, article 24).

Legal relations became the subject of constitutional regulation not only in the field of information of a personal nature, but also in the fields of legal (clause 3, article 15) and environmental information. So, paragraph 3 of Art. 41 declares responsibility for the concealment by officials of facts and circumstances that pose a threat to the life and health of people, and Art. 42 secured the right of everyone to a favorable environment and reliable information about its condition.

The task of legislative regulation of the right of citizens to information, enshrined in Part 4, Art. 29 of the Constitution of the Russian Federation, is largely decided by the Federal Law "On Information, Information Technologies and Information Protection". In connection with its adoption, the previous basic law “On Information, Informatization and Information Protection” of February 20, 1995 No. 24-FZ became invalid because it no longer corresponded to the current state of social relations and the realities of the use of ICT, on certain issues it came into conflict with later acts and did not correspond to the international practice of regulation of information relations.

The new law regulates relations in the exercise of the right to search, receive, transmit, produce and disseminate information, in the application of information technology, and in ensuring the protection of information. The previously effective law of 1995 regulated the relations arising from the formation and use of information resources. Information in it was understood as information about persons, objects, facts, events, phenomena and processes, regardless of the form of their presentation. In the new law, the definition of information is presented in more general view. Information is any information (messages, data) regardless of the form of their presentation. A more precise definition of the concept " Information system"- a set of information contained in databases and information technologies and technical means that ensure its processing.

The old law considered the concept of "confidential information" as documented information, access to which is limited in accordance with the law. The new law establishes that confidentiality is a mandatory requirement for a person who has access to information not to transfer this information to third parties without the consent of its owner.

Law 149-FZ introduces a number of new definitions: "information technology", "information and telecommunications network", "provision of information", "dissemination of information", "information system operator", "electronic message". Instead of the previously used concepts of “owner” and “owner” of information resources, information systems, technologies and means of their support, the new Law introduces the concept of “information owner” - a person who independently created information or received the right to allow or restrict access on the basis of a law or contract to information defined by some features.

However, the new law excludes some concepts used in the previous law: "informatization", "information processes", "information resources". The concept of “personal data” is also excluded from the law because it is given in a more detailed form in the law “On Personal Data”.

In accordance with Federal Law No. 149-FZ, all information is divided into public and restricted access. The legal basis for activities in the field of public and mass information is established by Law No. 2124-1 “On the Mass Media”. Articles 140, 144, 237 and 242 of the Criminal Code of the Russian Federation provide for appropriate penalties for restrictions on the right to information. Restricted information can be divided into information containing state secrets and confidential.

Observance of the rights and freedoms of citizens, ensuring the security of the state cannot be realized without maintaining information sovereignty. Information, being the most important national resource, cannot remain uncontrolled. Therefore, the Law of the Russian Federation “On State Secrets” is directly related to the problems of information, which regulates relations that arise when information is classified as a state secret, declassified and protected in the interests of ensuring the security of the Russian Federation.

The law defines the basic concepts and relations in the field of information containing state secrets. It establishes the degree of secrecy of information and the corresponding secrecy labels of carriers.

The law defines state secrets as protected state information in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the dissemination of which may harm the security of the Russian Federation (Article 1).

In accordance with this Law, the following are classified as state secrets:

Information in the military field;

Information in the field of economics;

Information in the field of foreign policy and economy.

For each of the above groups of information, the law provides detailed details. Article 6 establishes that the classification of information is carried out in accordance with the principles of legality, validity and timeliness. In Art. 7 is a list of information that is not subject to classification.

All confidential information can be divided into three groups: personal data about an individual, personal information and information containing information related to production and business activities.

Relations related to the processing of personal data are regulated by the Federal Law "On Personal Data". Issues related to ensuring the protection of personal data of employees are also regulated by the Labor Code.

Information containing information related to production and business activities in the legislative acts of the Russian Federation is divided into the following types: trade secret, professional secret, objects of copyright and related rights, objects of patent law, for official use.

Legal issues related to information containing commercial secrets are regulated by the Federal Law "On Commercial Secrets" and Article 139 of the Civil Code of the Russian Federation. The law defines the list of information that cannot constitute a commercial secret, the circle of persons and organizations to whom it is necessary to provide information containing a commercial secret, as well as the rights of the owner of such information. Article 139 of the Civil Code states: “Information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to the fact that it is not known to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality.”

The main principles of legal regulation of copyright and related rights were determined by the Federal Law "On Copyright and Related Rights" dated July 9, 1993 No. 5351-1. The legal regulation of industrial property objects was provided for by the "Patent Law" of September 23, 1992 No. 3517-1. From January 1, 2008, instead of the above two laws, the fourth part of the Civil Code, which regulates the rights to the results of intellectual activity and means of individualization, comes into force.

A number of legislative acts of the Russian Federation introduce the concept of "professional secret" - confidential information obtained as a result of professional activities. In accordance with Law No. 149-FZ "Information received by citizens (individuals) in the performance of their professional duties or organizations in the course of their certain types of activities (professional secret) is subject to protection."

The Civil Code introduces the concepts of "bank secrecy" (Article 857), "secret of insurance" (Article 946). The concept of "bank secrecy" is also defined in the Law "On Banks and Banking Activities" dated December 2, 1990 No. 395-1.

The Federal Law "On Auditing Activities" introduces the concept of "audit secrecy". The Law "On Communications" introduces the concept of "communication secrecy" - the secrecy of correspondence, telephone conversations, postal items, telegraph and other messages transmitted over telecommunication and postal networks. The Law "On Advocacy and the Advocacy of the Russian Federation" introduced the concept of "lawyer's secret" - information related to the provision of legal assistance by a lawyer to his client. Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens introduce the concept of "medical secrecy" - information about the fact of applying for medical care, the state of health of a citizen, the diagnosis of a disease and other information obtained during examination and treatment. The Tax Code of the Russian Federation introduces the concept of "tax secret" - information about the taxpayer received by the tax authority.

Sources of law are the official forms of consolidation and existence of the rules of law

These are official forms of consolidation and existence of information law norms.

Types of sources

1. International acts of information law(treaties, charters, declarations)

Ø The first such document is the Universal Declaration of Human Rights of 1948

Ø (The main provisions related to IP are set out and fixed there)

Ø European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (This convention contains provisions related to the right to information, there is a provision on the protection of the individual and personal, family secrets).

Ø Okinawa Charter of the Global Information Society 2002 (This charter contains the main provisions on the rights and freedoms of people in the global information society, it contains many provisions on the use of information technology)

Ø Tunis Declaration of Principles on the Information Society 2003 and amended in 2005

§ It enshrined the principle of access to information, ideas and knowledge;

§ The principle of building information and telecommunications infrastructure (the infrastructure is global in nature, so it must comply with international requirements)

§ The principle of trust and security in the use of information and telecommunication technologies

§ The principle of respect for cultural identity (when building a global information society, many cultural boundaries are erased; the declaration obliges countries to preserve the cultural identity of countries and peoples when building information systems)

Ø Convention for the Protection of Individuals and Automatic Processing of Personal Data 1981 (Personal Data Convention)

Ø Convention on information and legal cooperation in the field of information services (Provision of communication services, telematic services and information provision services)

Ø 2001 Cybercrime Convention. Russia has not yet signed it, because with the help of international cooperation access to restricted information is possible. But in certain provisions, the Russian Federation follows this convention. There are separate agreements between countries (the Russian Federation and the USA, the Russian Federation and England, the Russian Federation and France). Cooperation is in terms of integrating and unifying the rules of law governing responsibility for cybercrime. Cooperation in terms of combining procedural measures (evidence). Computer crimes are international. Certain provisions of the Convention have already been implemented in the Criminal Code, in particular Article 242 1 Production and circulation of pornographic materials

2. federal laws information legislation(All legal acts at the level of the law)

Ø Constitution - contains fundamental legal provisions, constitutional principles that define rights and freedoms in the information sphere, as well as constitutional guarantees for the protection of rights in the information sphere. All norms of the Constitution are divided into 3 groups:

Main 23, 24, 29, 42

Ensuring the implementation of the principles and freedoms enshrined in the main articles 26, 28, 31, 33, 44

· Guaranteeing 41, 55 (no restriction of freedom is formulated), 56

In addition, Art. 7 clause 3 contains a ban on abuse of one's rights

The norms of a constitutional nature are implemented in many laws. Constitutional norms are not declarative. Law on information, on the media, on advertising, on confidential information (2 types), in the law on the provision of services, the Code of Administrative Offenses, the Criminal Code

Ø Federal Law, by-laws

Ø Legislative acts and by-laws of the subjects of the federation (charters, constitutions of the republics, all by-laws of the executive authorities aimed at realizing the right to information at the level of the subject)

Ø Normative acts of local governments (are local in nature) Contain the legal regimes of information systems of the municipal body

Ø Normative documents of enterprises and organizations (local character). These include orders, instructions, regulations

Ø Resolutions of the Constitutional Court of the Russian Federation. They contain the legal positions of the constitutional court, explanations of laws in the form of interpretation, inconsistency with the law of certain provisions contained in a separate regulations which are subject to compulsory exclusion.

Ø Standards, technical rules and conditions. These are technical standards. In the information sphere, there are a fairly large number of such types of sources. Because they regulate the organization of construction, creation of information systems. The main law is the Federal Law on technical regulation.

Standards: National Information Technology Standard 2008 (on methods and means of ensuring the operation of information technology, security, on the criteria for compliance and non-compliance with security requirements); on the creation of unified documentation systems in 2008 (on the creation of an electronic document; Sanitary Rules and Norms (SANPIN). These include a standard on hygienic requirements for personal electronic equipment (contains standards for the operation of computers in educational institutions, requirements and basic conditions of computers at home)

Ø Administrative and technical regulations. These sources contain norms of both legal and technical content. Rules governing the relationship between man and man. Technical regulations contain norms governing the relationship between man and technology. Administrative regulation is the relationship between a person and a person regarding the operation of equipment connected between people (local information system). Administrative regulations are adopted by executive authorities.

Ø Legal, legal customs. There are a lot of legal customs in the information sphere, especially those related to the operation of the Internet. There are also document management practices.