Telecommunications Secrecy Violation in the Context of Russian Criminal Law: Current Problems and Prospects for Overcoming Them

Abstract

The paper is devoted to the controversial issues of criminal liability for violating the secrecy of correspondence, telephone conversations, postal, telegraph and other messages based on the analysis of Russian legislation, generalization of judicial practice and experience of foreign countries. The author explains the concept and content of communication secrecy, examines its correlation with other types of legally protected information, provides a criminal legal assessment of the dissemination of mutual correspondence without the consent of one of the addressees, and considers a sign of insignificance of the act in relation to encroachments on constitutional human rights. Telecommunications secrecy is defined as any information transmitted using wired, radio, optical or other electromagnetic systems, to which access is restricted in accordance with the Constitution of the Russian Federation, other regulatory legal and local acts. It is proposed to consolidate the provision that only a person who is not the addressee of negotiations, correspondence and other messages can bear criminal responsibility for violating the secrecy of communication. The rules of qualification of the violation of the secrecy of communication are formulated in conjunction with the crimes in the field of computer information, as well as with the illegal receipt and disclosure of information constituting a trade secret. It is noted that Part 2 of Article 138 of the Criminal Code of the Russian Federation should be supplemented with the provision listing qualifying signs of the use of information and telecommunication networks by a person and about unauthorized access to the critical infrastructure of the Russian Federation. The author criticizes the refusal of the courts to recognize the violation of the secrecy of communication as an insignificant act only because of the special significance of the object of criminal law protection. A rule is established to eliminate competing criminal law norms concerning exemption from liability for violating the secrecy of communication by applying the article of the Criminal Code of the Russian Federation, which is the most favourable for the person who committed the crime. In conclusion, the author proposes a new version of the article of the criminal law on violation of the secrecy of correspondence, telephone conversations and other telecommunication messages that provides for the composition of a crime with administrative prejudice.