Государственный контроль (надзор) - инструмент противодействия угрозам национальной безопасности в информационной сфере или средство защиты неприкосновенности частной жизни: соотношение частного и публичного интересов

Abstract

The article discusses some problems related to the ratio of two fundamental values - the legal protection of the public and the private interests in the sphere of computer data processing. On one hand, the use of information and communication technologies is potentially utilized as networking platforms for the preparation, organization, and implementation of crime and thereby is threatening the security of the state, society, and the individual. However, these technologies are a means of data collection, storage, conversion, and the distribution of private information about citizens' (personal data). It is important to note the threat to public order and the inviolability of privacy forming in the information sphere is being addressed in the context of the adopted package of amendments designed to ensure public safety and security, as well as counter-terrorism, which is called the “Yarovaya Law”, Information Security Doctrine of the Russian Federation, Russian Federal Law on Personal Data Protection, and additionally as the Russian Federation Government Draft Resolution on State Control and Supervision over the Compliance of Personal Data Processing with the Requirements of the Personal Data Legislation of the Russian Federation. However, in accordance with the Federal Law on Personal Data, the purpose of processing personal data is limited to the achievement of pre-defined and legitimate objectives. Moreover, the Information Security Doctrine of the Russian Federation recognizes the security and protection of privacy when using information technology vis-à-vis national interests. However, along with the above indicated regulations aimed at protecting the information on the private lives of citizens, the purpose of collection, storage, and use of personal data according to the “Yarovaya Law” is counter-terrorism and public safety. It follows that the legislation regulates both mutually exclusive purposes of processing personal data. Meanwhile, Roskomnadzor is an authorized federal executive for the protection of the personal data bearing subjects' rights, carrying out state control (supervision) functions over compliance requirements of legislation of the Russian Federation, which include the definition of the purpose of processing of personal data. Due to the fact that purposes of processing of personal data are legitimate, but conflicting with each other, the Roskomnadzor is forced to violate the principle of impartiality in the implementation of the control (supervision), initially defending the public interest, thereby infringing upon them and consisting of the protection of the information aspect of the inviolability of private life. In connection with the above-mentioned circumstances, the authors propose is to balance public and private interests in the formation of a supervisory bodies system for the protection of personal data based on the legislative experience of developed countries.