The mystery of communication

The very concept of “human rights” arose in the 18th century and was based on the European philosophical traditions of the five or six previous centuries. The first document to officially proclaim “human rights” in their current form is the French Declaration of Human Rights and Citizen of 1789. Some researchers consider the founder of modern “human rights” the US Declaration of Independence of 1776, which also proclaimed a set of personal rights, more or less similar to modern ones. These two documents formed the foundation of the modern legal paradigm, at first operating only in Europe and the New World, and later spreading to the whole world. However, the right to privacy of correspondence was not included in these documents. It appeared as a part of “human rights” later - in UN documents in 1945-1948.

There is data on the Inca mail in Peru . Here, already before the beginning of the 16th century, there were post messengers who, in addition to state communications, delivered fresh fish, fruits and other products to the king’s table. As Siesa de Leon points out in the Chronicle of Peru , the Incas provided for the laws to preserve the secrecy of the information contained in the messages sent: , they never talked about what they were going to convey in the message, even if the notification had already gone further [by mail ] ” ^[2] .

The concept of secrecy of correspondence is included in various decrees and job descriptions from the 17th century ^[3] and becomes a ubiquitous part of the laws by the 19th century. Systematic violations of communication secrets by this time are perceived precisely as violations, and the involved officials of postal departments and black offices are forced to make excuses to public opinion and even to their superiors. This is the explanation for complaints about the opening of letters by the Moscow post office in 1791 ^[4] :

In Russia

The right to privacy of correspondence (later telephone, telegraph and other communications were added to the correspondence) is derived from the right to privacy of privacy (the term “privacy” is used in English literature). Nevertheless, the right to privacy is a separate right, it is established separately (part 1 of article 23 of the Constitution of the Russian Federation), and liability for violation of this right is established by a separate article (article 137 of the Criminal Code of the Russian Federation). Thus, the right to privacy and the right to privacy of communication are independent rights.

In Russia, communications secrecy is guaranteed by the Constitution of the Russian Federation (1993). Part 2 of Article 23 states:

Everyone has the right to privacy of correspondence, telephone conversations, postal, telegraphic and other messages. The restriction of this right is allowed only on the basis of a court decision. ^[five]

A similar provision was present in past constitutions (Article 56 of the 1977 Constitution of the USSR; Article 128 of the 1936 Constitution of the USSR). The same provision is contained in the constitutions of most foreign countries. It is also affirmed in the 1948 Universal Declaration of Human Rights (Article 12). We can say that the secret of communication is a generally accepted legal norm in the world.

Secrecy of communication is an inalienable right (part 2 of article 17 of the Constitution of the Russian Federation), that is, a person cannot be deprived of this right, and he cannot voluntarily renounce this right.

The right to secrecy of communication covers personal messages that are in any communication channel or at the disposal of a telecom operator , from the moment the sender sends the message until the recipient receives the message. Service and advertising messages are not protected by the right to secrecy of communication, but this does not mean that official communication channels are allowed to be secretly monitored (to perform censorship ). The right of an individual to secrecy of communication with the right of persons to trade secrets , professional secrets (lawyers, doctors , etc. ) should not be confused. Other types of secrets are also protected by law, but the term “secrecy of communication” refers only to personal life .

The law obliges all telecom operators to take measures to protect the secrecy of communications (Article 63 of the Law of the Russian Federation “On Communications”).

Criminal liability has been established for violating communications secrets in Russia (Article 138 of the Criminal Code of the Russian Federation ). Civil liability is also possible if the violation of the secrecy of communication caused material damage or moral damage .

Monitoring mail, telegraphic and other messages, listening to telephone conversations, removing information from technical communication channels are types of operational-search measures . Their conduct in Russia is permissible on the basis of a court decision and if there is information:

1. About the signs of a prepared, committed or committed illegal act, according to which the preliminary investigation is mandatory.
2. About persons preparing, committing or having committed an unlawful act, according to which a preliminary investigation is mandatory.
3. About events or actions that pose a threat to the state, military, economic or environmental security of the Russian Federation.

At the same time, the Supreme Court of the Russian Federation focuses the attention of the courts on the fact that the results of operational-search measures related to restricting communication secrecy can be used as evidence in cases only when they are obtained by permission of the court to conduct such events and carried out by investigators bodies in accordance with the criminal procedure legislation.

In order to recover from the telecom operator items and documents containing information transmitted, stored and established with the help of telephone equipment, including data on incoming and outgoing connection signals of telephone sets of specific communication users, it is necessary:

• in criminal cases - a reasoned decision of a judge to authorize the production of this action;
• in civil cases - the judge’s decision to obtain the relevant documents.

All telecom operators in Russia are required to agree on an action plan for the implementation of “ SORM ” (the System of operational-search measures) ^{[6] [7]} , otherwise their license may be canceled ^[8] .

Since February 1, 2008, FSB officers have the technical ability to listen to telephone conversations (including mobile ones) without the participation of a telecom operator. ^[7] .

July 21, 2009 came into force the order of the Ministry of Telecom and Mass Communications of the Russian Federation “On approval of the Requirements for postal networks and means of communication for conducting operational-search measures” ^[9] . The order sets out what services should be provided by mail to the leading wanted persons of seven departments: the Ministry of Internal Affairs , the FSB , the FSO , foreign intelligence , customs officers , the FSIN and the FSKN . Among the services, the duty of the postal service providers to provide special premises to the leading wanted officers is particularly noteworthy.

On April 13, 2018, the Moscow Tagansky court ruled to block the Telegram messenger, due to the failure to provide keys for user correspondence.

• Privacy
• Perusal
• SORM
• Spring Law
• Expositions of mass surveillance in 2013

• Louis Brandays, Samuel Warren. The Right to Privacy // Harvard Law Review Magazine, 1890 Electronic Text
• Smirnov S. Privatnost. - Moscow, publishing house "Human Rights", 2002. - 96 s Text in electronic form

• The official text of the current Constitution of the Russian Federation
• Order of the Ministry of Communications of the Russian Federation “On Approval of Requirements for Telecommunication Networks for Conducting Search Operations” dated January 16, 2008
• Order of the Ministry of Telecom and Mass Communications of the Russian Federation of May 19, 2009 No. 65 “On approval of the Requirements for postal networks and means of communication for conducting operational-search measures”
• Wiretapping mobile phone. The main signs .