Problems of Determining the Subject of Illicit Trafficking of Special

Technical Means for Covert Information Acquisition

Irina Alekseevna Yefremova

, Alexander Borisovich Smushkin

, Mikhail Mikhailovich

Menzhega

and Pavel Anatolievich Matushkin

Department of Criminal and Penal Law, Saratov State Law Academy, Saratov, Russian Federation

Department of Forensic Science, Saratov State Law Academy, Saratov, Russian Federation

Department of Procuratorial Supervision and Criminology, Saratov State Law Academy, Saratov, Russian Federation

Keywords: Criminal law, investigative activities, covert means, illicit trafficking, obtaining information surreptitiously,

subject matter of the crime, challenges of determination of the nature of a crime.

Abstract: The study is novel due to the comprehensive approach to the research in terms of forensics, the theory of

investigative activities, the bases for the use of covert means and criminal law as well as the development of

proposals to improve the criminal law of the Russian Federation in terms under consideration based on the

research. Purpose of the study: evaluation of the effectiveness of legal regulation of trafficking of covert

means intended for covert information acquisition. Objectives: to develop a unified approach to the criteria

for attributing objects to the category of covert means intended for surreptitious information acquisition,

addressing the problems of classification of illegal trafficking in such means. Methods: dialectical method of

scientific understanding, as well as general scientific methods: logical, hermeneutical, comparative law

research. As a result of the study, the authors conclude that there is a need to develop a unified approach to

the criteria for classifying certain objects as covert means intended for surreptitious information acquisition,

their essential features and to enshrine it at the statutory level, as well as the need for a clearer clarification of

the terms "production", "acquisition" and "sale" in the current resolution of the plenum of the Supreme Court

of the Russian Federation.

1 INTRODUCTION

Illegal trafficking of covert means intended for covert

information acquisition is a fairly common crime, but

the persons committing such a crime are not always

aware of its increased danger to society and the fact

of committing the crime. At the same time, not all

aspects of this crime have been revealed in scientific

studies. Certain issues are addressed in the works by

S. D. Petrochenkov (Petrochenkov 2013), V. I.

Plokhova (Plokhova, 2018), V. G. Usov (Usov,

2019).

(Petrochenkov 2013) and some other authors. The

peculiarities of the use of such surreptitiously used

devices have been also considered by foreign authors

(Wilhelm, Andress, Hacking, 2011).

https://orcid.org/0000-0003-0071-1999

https://orcid.org/0000-0003-1619-8325

https://orcid.org/0000-0003-2596-0772

https://orcid.org/0000-0002-4780-2970

The study is novel in its integrated approach.

Furthermore, the speed of technological advancement

leads to the continuous emergence of technical

devices (gadgets) which, under certain conditions

(modifications, unconventional use, etc.) can be used

for covert information gathering, though this function

was not envisaged in their original purpose. In

particular, Australian authors Rob Abbas, Katina

Michael, M. G. Michael and Anas Aloudat (Abbas,

Michael, Aloudat, 2011) as well as other authors

(Peer, Egelman, Harbach, Malkin, Mathur, Frik,

2020) have pointed to such technical means in their

articles. The above circumstances predetermine the

need for a comprehensive study of covert means, the

purpose of which is to obtain information covertly,

and their illicit trafficking. On this basis, there is a

Yefremova, I., Smushkin, A., Menzhega, M. and Matushkin, P.

Problems of Determining the Subject of Illicit Trafﬁcking of Special Technical Means for Covert Information Acquisition.

DOI: 10.5220/0010634200003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

219-222

ISBN: 978-989-758-532-6; ISSN: 2184-9854

219

need to review and analyze the current criteria for

classifying certain objects as cover means intended

for obtaining information surreptitiously, to develop

the author's position on the issue, as well as to identify

and address the issues of qualification of criminal

offenses, generated by the imperfection of the

legislative concept of the criminal offenses under

analysis, where the covert means, intended for

obtaining information surreptitiously, are the

constructive feature (in this case – the subject matter

of crime).

2 METHODS

The traditional set of scientific methods was used in

carrying out the study. The generic dialectical method

of scientific understanding has been widely used, as

well as general scientific methods: logical,

hermeneutical, comparative law analysis. The above

combined set of methods ensures that the principles

of development of scientific knowledge and the logic

of research are followed.

3 RESULTS AND DISCUSSION

In the Russian Federation, only bodies engaged in

investigative activities are authorized to use devices

designed for the covert collection of information in

their professional activities. This limitation is based

on the conspiratorial, secretive nature of their

information gathering. Technological progress

affects all phenomena and processes of social life, and

crime is no exception (Solovyov, 2016; Volevodz,

Shestak, 2019). The seemingly "harmless" use of

such devices by other performers conceals a very

common, multifaceted criminal phenomenon

(Bublik, Kozachenko, Gubarev, 2015), which

infringes on constitutional rights and freedoms of the

person and of the citizen, as well encroaches on

information security (Usov, 2018), since their use

may give rise to a number of criminal offenses (e.g.

violation of privacy, inviolability of housing, the

secrecy of correspondence etc.).

What exactly are the technical devices designed

for covert collection of information? After all, it is

possible to collect information without notifying

citizens not only through various radio technical

devices (listening devices) (Lantukh, Ishygeev,

Gribunov, 2020; Dale, 2017), but also through UAVs

(Vardanyan, Andreev, 2018), and billing by mobile

network carriers. It is also difficult to ignore the

potential of smart information collection devices

(meters, trackers, etc.) (Nancy, 2014). In addition,

intelligent house and intelligent vehicle systems

cannot be ruled out (Smushkin, 2020).

Analysis of the current Russian legislation in so

far as relevant shows that currently the Russian

legislative establishment does not define clearly

enough which technical means should be classified as

covert, intended for gathering information

surreptitiously. The rules of law are divergent and

sometimes contradictory, while being inconsistent

with Russian civil law. Such judgment has been

repeatedly expressed by the academic community

(Plokhova, 2018).

The Russian legislator, in a Note to Article 138.1

of the Criminal Code, has defined what shall be meant

by special hardware, intended for covert obtainment

of information. In particular, Note 1 to Art. 138.1 of

the Criminal Code states: "By special technical means

intended for secretly obtaining information, we mean

devices, systems, complexes, devices, special tools

for penetrating into rooms and (or) other objects and

software for computers and other electronic devices

for accessing information and (or) obtaining

information from technical means of its storage,

processing and (or) transmission, which are

intentionally given properties to provide the function

of hidden information or access and to her without the

knowledge of its owner." In this case, the Russian

legislator defined the term in question by

decomposing the general concept into subordinate

concepts that are significantly smaller in scope.

However, the specific characteristics that are unique

to the technical means in question and that make it

possible to distinguish them from other technical

means are not pointed out. Such an approach raises

qualification problems, as it does not certain clarity in

the definition of the term in question. Moreover, the

analysis of this legal definition leads to a conclusion

that this definition, if read literally, applies only to the

devices and hardware/software systems designed for

eavesdropping, retrieval of information from

technical communication channels and acquisition of

computer data. The list of devices that allow for

covert audio and video recording of what goes on

around the user, to obtain information on their

movements, is not exhaustive.

More detailed regulation including 10 types of

special technical means is contained in the List

approved by the RF Government Decree No. 214

dated March 10, 2000. It provides not only the list of

categories of special technical means allowing for

secret obtainment of information but also groups of

special technical means.

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

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In addition, Decree of the Government of the

Russian Federation No. 314, dated April 16, 2012 is

in force in the Russian Federation. The weak point of

this regulation, as well as the other above-mentioned

legal acts, is that it does not define the structural

features that are inherent to these special technical

means, but only determines their general categories.

This approach is fundamentally unacceptable as it

does not allow a technical means to be classified as

special technical means that are designed to obtain

information covertly, creating room for expansive

interpretations and creating problems of qualification

of criminal offenses.

The distinction between the technical means in

question and other means which do not constitute the

object of the criminal offense analyzed is contained

both in note 2 to article 138.1 of the Criminal Code

and in the explanations of the Constitutional Court

and the Supreme Court of the Russian Federation.

The practice has followed the path of camouflage as

the main feature identified by experts in determining

whether a device qualifies as a hardware to be

analyzed. However, this criterion appears clearly

sufficient to the authors. It seems that the key to

distinguishing between the related devices, apart from

their original purpose, is precisely the informed

consent of the user or other person whose actions are

being monitored. However, if these devices are used

both for minors and for animals or other objects

(installation of a tracker in a car alarm system for

tracking it in case of theft), the need for use is

determined by the legal representative of the minor,

the owner of the animal or object itself. In addition,

the technical means in question must in no way reveal

their functional purpose (e.g. must operate silently,

without light signals).

The problem of defining the concept of technical

means, being the subject of the criminal offense under

analysis, is further complicated by the fact that the

solution of this issue is debatable in the domestic legal

doctrine. The viewpoints of academics do not always

coincide and sometimes differ significantly,

contradicting each other. Thus, some authors prefer

the abstract formulation of the concept under study,

through its attributes (Rarog, 2019), while others

prefer the definition of specific groups of such

technical means (Brilliantov, 2016). Due to the

uncertainty and ambiguity of the definition of special

technical means designed to obtain information

covertly in the current legislation and legal doctrine,

there are problems of qualification of the analyzed

criminal offense in the regulatory enforcement.

Failure to address these issues creates a real risk of

failure to bring to justice, which in itself can have a

negative impact on the security of individuals and

their rights and freedoms. Therefore, there is a need

to develop a unified approach to the criteria for

classifying certain objects as covert means intended

for surreptitious information acquisition, their

essential features, and to enshrine it at the statutory

level.

The term "technical means" means an item,

equipment, apparatus or parts thereof. On this basis,

it must be concluded that technical means are objects

of the material world (e.g. hardware,

hardware/software, digital electronic or other

analogue devices that do not have the attribute of

electronic device). Software is not and cannot a priori

be regarded as technical means because software,

unlike technical means, is intangible in nature and

represents a collection of data and commands existing

in the form of electronic signals. Only those technical

means that are capable of obtaining information

should be regarded as special technical means, which

constitute the object of the criminal offense in

question. However, these technical aids must not be

intended for domestic, mass-market use.

In addition, the analysis of regulatory

enforcement materials shows that in addition to the

challenges of qualification of the criminal offense in

question, there are other problems associated with the

imperfection of the legislative regulation of the

criminal law standards that establish responsibility

for the criminal offense in question. This fact has

been repeatedly highlighted by practitioners and

research community (Usov, 2019). In particular, one

of the qualification issues under consideration is the

identification by law enforcement authorities of the

production of special technical means, which are the

subject of the analyzed criminal offense. Despite the

current clarifications of the Supreme Court as to what

should be understood by the production of the subject

matter of the offense under Article 138.1 of the

Criminal Code, the law enforcement practice in this

respect is very contradictory.

In law enforcement practice, there are also

problems in qualifying the criminal offense in

question when defining the concept of the sale of

special technical means, which is the subject matter

of the offense under article 138.1 of the Criminal

Code. It should be noted that in law enforcement

practice, the problems in delineating the sale are

inherent not only to the offense in question but also to

other offenses, as there is currently no unified

approach to the definition of sale. For example, the

sale of narcotic drugs, psychotropic substances are

actions aimed at transferring the object of criminal

encroachment (in this case narcotic drugs or

Problems of Determining the Subject of Illicit Trafﬁcking of Special Technical Means for Covert Information Acquisition

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psychotropic substances) to a third party, while the

sale of weapons are irrevocable alienation of weapons

in favour of third parties, for the term "alienation" is

included in the concept of "transfer".

In addition, law enforcers face qualification issues

in distinguishing the criminal offense in question

from administrative offenses; for multiple offenses;

in establishing the signs of accompliceship and many

others. It should be noted that the authors have not

touched on all the problems of qualification of the

crime under Article 138.1 of the Criminal Code of the

Russian Federation, which undoubtedly requires

further elaboration of the stated problem by the

scientific community.

4 CONCLUSIONS

Despite the fact that the speed of technological

advancement leads to the continuous emergence of

technical means, which under certain conditions can

be used for covert collection of information, thereby

encroaching on the benefits protected by criminal

law, there is currently no effective mechanism for

countering them through the means of criminal law.

This is due to the lack of clear legislative regulation

of the criminal law provision, establishing the

liability for committing the analyzed criminal

offense, the presence of different approaches to the

definition, the criteria for attributing certain objects to

special technical means, designed to obtain

information covertly. On this basis, in order to

alleviate the above problems, there is a need to

develop a unified approach to the criteria for

classifying certain objects as covert means intended

for surreptitious information acquisition, their

essential features and to enshrine it at the statutory

level, as well as the need for a clearer clarification of

the terms "production", "acquisition" and "sale" in the

existing resolution of the plenum of the Supreme

Court of the Russian Federation.

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