II. Surveillance policy
The 2003 Communications Law protects secrecy of communications.1 The tapping of telephone conversations, scrutiny of electronic communications, delay, inspection and seizure of postal mailings and documentary correspondence, receipt of information therein, and other restriction of communications secrets are allowed only with a court order except as otherwise provided by a federal law. The Law on Operational Investigation Activity that regulates surveillance methods used by secret services requires a court-issued warrant.2 The law was amended in December 1998 by the State Duma. Guarantees for the protection of privacy were emphasized and additional controls imposed on prosecutors. Article 5 of the Law provides that an investigative structure must secure people's privacy. The Law also provides: "If one believes that some actions of bodies conducting operational investigation have infringed on an individual's rights or freedoms, the individual has the right to appeal to a court, a prosecutor, or to a higher body that carries out investigative activities."
The law also provides: "If a person has not been proved guilty during a legally established procedure, then all materials obtained during this operational investigation must be archived for a period of one year and subsequently deleted." However this provision is virtually revoked by the following addition: ". . . unless official interests or justice require otherwise."3 In December 1999, the law was amended to allow surveillance by the tax police, the Ministry of Internal Affairs, Border Guards, the Kremlin Security Service, the Presidential Security Service, the parliamentary security services and the Foreign Intelligence Service.4 In 2001, the following provision was added to the Law:5 "Audio recordings and other materials resulting from interception and wiretapping of the conversation of persons being out of criminal proceedings must be deleted within six months after the wiretapping is over with an appropriate protocol.6 The judge must be notified three months before materials reflecting the results of operational investigations, implemented on the basis of a court warrant, are deleted." Disclosure of data that affects someone's privacy without his or her consent is legally prohibited unless otherwise stipulated by federal laws.
The law states that officials may enter a private residence only in cases prescribed by federal law or on the basis of a judicial decision; however, according to the US State Department, authorities did not always observe these provisions. The law permits the government to monitor correspondence, telephone conversations, and other means of communication only with judicial permission and prohibits the collection, storage, utilization, and dissemination of information about a person's private life without his consent. While these provisions were generally followed, problems remained. There were accounts of electronic surveillance by government officials and others without judicial permission, and of entry into residences and other premises by Moscow law enforcement without warrants. There were no reports of government action against officials who violated these safeguards.7
In 2005, the government, citing concerns about terrorism, approved new regulations for interactions between communication companies and certain government agencies. The new regulations give law enforcement agencies greater access to telephone and cellular phone company clients' personal information and require providers to grant the Ministry of Internal Affairs and Federal Security Service (FSB) 24-hour remote access to their client databases. Some experts believed these new rules contradict the Constitution. Given that the authorities have had legal access to these records for 10 years, mobile operator MegaFon's press secretary suggested that the new rules change nothing, and simply make the process "more transparent."8
The FSB has conducted phone tapping using the "SORM" system (or "System of Operative Investigative Activities"). In 1998, information about a new SORM-2 system that applies to the Internet was revealed. SORM-2 requires Internet Service Providers (ISPs) to install surveillance devices and high-speed links to local FSB departments, which would allow the FSB to directly access Internet users' communications, although with a warrant requirement.9 These rather expensive devices and links are to be paid for by the ISPs themselves. While most ISPs have not publicly resisted FSB's demands to install SORM-2, one ISP in Volgograd, Bayard-Slaviya Communications, challenged the FSB's demands. The local FSB and the Ministry of Communications attempted to have the ISP's license revoked10 but backed off after the ISP challenged their decision in court.
The existence of SORM-2 was confirmed by the State Committee of the Russian Federation on Communication and Informization (Goskomsvyaz, now the Ministry of Communications) as Order No. 47 in March 27, 1999, and Order No. 130, in July 25, 2000, which was registered with the Ministry of Justice on August 9, 2000. Order No. 130 was immediately challenged in the Russian Supreme Court by Pavel Netupsky, a St. Petersburg journalist. Although the Court upheld SORM-2, it ruled part 2.6 illegal, and therefore made sure that ISPs would know whom the FSB is monitoring.11 Netupsky lost on all other counts. SORM-2 has now been implemented, although FSB representatives have not provided any evaluation of how effective SORM-2 has been for the prevention and investigation of criminal activities, and there have been no announced arrests as of yet. Although the FSB insists that there have been no violations of privacy, its assertions cannot be verified as Russia lacks the appropriate supervisory and independent body to control FSB's activities. ISPs are used to avoid comments on any issues connected with SORM-2. The Russian communications call ISPs for cooperation and assistance to governmental investigative bodies.12
Human rights observers continued to allege that officers in the special services used their services' power to gather compromising materials on public figures. There were credible charges that regional branches of the FSB continued to exert pressure on citizens employed by foreign firms and organizations, often to coerce them into becoming informants.13
The Federal Law on Commercial Secret was enacted on July 29, 2004.14 The law regulates the disclosure of "commercial secrets" and how its confidentiality can be protected. It also defines information that may not be considered commercial secret, and establishes a list of information that may constitute commercial secret, including but not limited to, the number of employees, the system of remuneration, labor conditions including safety arrangements, work-related injuries, occupational morbidity figures, and vacancies; as well as past infringements to the Russian Federation legislation and ensuing prosecutions. The law expressly stipulates that the owner of commercial secrets is the employer.
In May 2004, President Putin signed the Presidential Decree on "Measures of Providing Information Safety to the Russian Federation in the International Information Exchange Area," which forbids the connection of information networks, communication networks and autonomous computers to the Internet and other networks of the international information exchange, if they contain state and official secrets and other information that can be withheld.15
Despite these clear restrictions, President Putin declared that he does not approve of administrative restrictions of the Internet networks: "The Internet is the most democratic way of the dissemination of information, and reasonable restrictions of the criminal use of the Internet should not have influence on freedom of information."16 Since then President Putin made several public declarations that he and his government were against such limitations and that Internet should regulate itself without governmental pressure.17 However, some Russian officials have another standpoint. Minister of Foreign Affairs Sergey Lavrov said that some Internet sites are propagandizing intolerance and violence.18 Alexander Kotenkov, who represented the President in the Council of Federation, declared that all Internet sites should have permanent IP addresses in order to define the information resource. However, officials could not resolve the issue of whether the Internet sites are traditional mass media or not. In some cases, Internet sites could be considered mass media. For example, according to the Decision of the Supreme Court, when detractive and false information are put on the Internet site, which has been legally registered as mass media, it should be regulated by the Russian mass media legislation.19 If it is impossible to find out the person who disseminated detractive and false information, judicial protection is certainly possible. The registration of Internet sites as electronic editions of mass media is carried out in the Federal Service regarding Supervision of Observance of the Legislation, in the field of Mass Communications and Protection of a Cultural Heritage. The registration is carried out voluntarily and assumes the fulfillment of Civil Code and also Mass Media Legislation.20
After some controversial proposals and ideas concerning spam, Vladimir Putin approved the federal law "On advertising."21 The law confirms the "opt-in" principle, and in a conflict situation the sender must prove that the addressee gave his/her consent to receive mail. The law also prohibits automatic mailing systems.22
- 1. The Federal Law No. 126-FZ of July 7, 2003.
- 2. The Federal Law No. 144-FZ of August 12, 1995; amended in 1997, 1998, 1999, 2001, 2003, 2004, 2005 at Art. 8.
- 3. Article 5 of the Federal Law "On operational investigations" of August 12, 1995 (the Federal Law No. 144-FZ of 1995).
- 4. "Police Get Window of Access to E-mail," The Moscow Times, January 13, 2000.
- 5. This amendment has been introduced by the Federal Law No. 26-FZ of March 20, 2001.
- 6. The "protocol" is an official paper, a form that must be completed and signed to certify that the data was deleted.
- 7. http://www.state.gov/g/drl/rls/hrrpt/2006/78835.htm
- 8. Id.
- 9. http://www.libertarium.ru/libertarium/sorm/
- 10. In Russia a license is necessary for providing Internet services. ISPs have to meet license terms and conditions including cooperation with secret services.
- 11. "Supreme Court Rules Phone-Tapping Clause in Decree to be Illegal," BBC World Monitoring, September 28, 2000.
- 12. Article 64 of the Federal Law No. 126-FZ of July 7, 2003.
- 13. US State Department Human Rights Report 2006, supra.
- 14. Federal Act No. 98-FZ.
- 15. Decree of President of the Russian Federation on "Measures of Providing the Information Safety of the Russian Federation in International Information Exchange Area" No. 611 of May 12, 2004.
- 16. http://www.nta-nn.ru/?id=70291
- 17. http://old.radiomayak.ru/society/06/01/31/43126.html
- 18. http://lenta.ru/internet/2004/11/17/lavrov/
- 19. Decree of the Plenary Session of the Supreme Court of the Russian Federation on "Court Practice for Cases on Protecting of Honor and Dignity and also Business Reputation of persons and Legal Persons" No. 3 of February 24, 2005.
- 20. A. Richter, "Legal Basis of the Journalism," Institute of the Information Law Issues, Moscow, 2004.
- 21. Of March 13, 2006 N 38-FZ.
- 22. http://citcity.ru/14913