Ensuring the Constitutional Rights and Freedoms of Man and Citizen in the Development of Modern Information and Communication Technologies

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The Constitution of the Russian Federation, which is the basis for all Russian legislation, is of particular importance for the laws on criminal proceedings. Moreover, as stated in Article 2 of the Constitution of the Russian Federation, "a person, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the State."
Thus, any activity of state bodies, and, above all, law enforcement, should have as its ultimate goal the protection of the rights and interests of man and citizen. Considering that criminal proceedings involve the restriction of certain freedoms of a person with the status of a suspect or accused, these restrictions must be strictly metered, elected by an authorized official in accordance with the established procedural procedure and not have the character of excessive.
On the other hand, the insufficiency of coercive measures applied to the accused or suspect will mean a violation of the victim's rights to protection from unlawful actions against him, restoration of violated interests, etc. Thus, an authorized official involved in the process of criminal prosecution should have a clear idea of a certain "golden mean", deviation from which is fraught with violation of someone's rights.
At the same time, some innovations taking place in society at the present stage of the development of information and communication technologies require a systematic rethinking of approaches and assessments of the sufficiency or redundancy of restrictions on human and civil rights.
It is necessary to agree with the opinion of Klaus Schwab, who saw the main trend in the development of the world economy in the direction of the explosive nature of the birth of digital technologies, which confirms that the current state of society is largely determined by digitalization.
Consider, in particular, the provisions of Article 23 of the Constitution – "Everyone has the right to privacy, personal and family secrets, protection of his honor and good name. Everyone has the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other messages. Restriction of this right is allowed only on the basis of a court decision."
Individuals post a significant amount of personal information on social networks: information about themselves, personal photos from various events, messages about their preferences and locations. Access to such information, which is essentially confidential, is open to a wide range of people – "visitors" to the user's personal page, "friends" of the user, moderator and software administrator. Social networks allow correspondence between two or more users in the mode of "personal" or "multi-user" chat. Thus, the secrecy of communications guaranteed by the Constitution in this context justifiably raises doubts.
Thus, in the conditions of "digital reality", the issue of ensuring the security of information exchange is particularly acute.
At the same time, it should be stated that the problem of protecting information from unauthorized access and unwanted influences on it arose a long time ago, from the time when a person for some reason did not want to share certain information with anyone or, at least, not with every person.
In the recent past, the problems of information protection could be effectively solved with the help of organizational measures and separate software and hardware means of access control and encryption. The widespread use of computer technology, local and global networks, satellite communication channels, effective technical intelligence has significantly exacerbated the problem of information protection.
As correctly noted, "every published analysis of the incident and almost every penetration test demonstrate the presence in the IT infrastructure of the attacked organization of a whole set of obvious shortcomings: typical vulnerabilities of web applications, dictionary passwords, lack of basic protection against interception of traffic in local networks, etc."
It should be stated with confidence that the problem of reliable security information is one of the most important problems of our time.
"I had the opportunity, without the slightest regard for the law, to tap the phones of each of you and read your mail. Anyone's, anytime. This is the power to decide human destinies. As well as a serious violation of the law and human rights."
These words of E. Snowden, a former employee of the CIA and the NSA, are the best evidence of how the security measure allegedly used by the United States against terrorism – a comprehensive violation of the secrecy of communication – has penetrated into our lives, violating our rights. Snowden divulged data, probably, only about some projects of the special services: PRISM, X-Keyscore and Tempora, but this is enough to understand the colossal lawlessness committed by the United States.
Thus, taking into account these statements of a former employee of Western intelligence services, we can actually conclude that the more information is contained about a person in digital format, the more vulnerable he is from the point of view of violation of his rights.
On the other hand, unnecessary technical obstacles that may arise during the collection of information, in particular, during the investigation of a criminal case, do not serve at all to protect human rights and freedoms. Currently, there are procedural procedures for obtaining certain information from technical communication channels or storing and posting information content. Compliance with these procedures, on the one hand, is a guarantee of respect for constitutional rights, including the accused and the suspect.
On the other hand, violators, following the example of Snowden, may attempt unauthorized access to private information, and the work of ordinary law enforcement officers should be based on careful compliance with a rather time-consuming procedure.
This dissonance can, in our opinion, be resolved by introducing a number of innovations.
Firstly, it seems necessary to regulate the social relations that arise and occur in the digital environment at the regulatory level.
Secondly, taking these legal relations as fundamentally new, which have appeared in connection with the rapid development of digital technologies, to develop their own rules and regulations for them, relying on existing regulatory structures only partially. "Ordinary" legal relations, i.e. in the real world and cyber-legal relations should not be completely equalized. In this thesis, many reservations should be indicated, but in more detail, the differences between these legal relations, in our opinion, should be considered in a separate article.
Thirdly, it is necessary to create a separate body within the state structure that would be engaged in both ensuring information security on a national scale and countering cybercrimes and other offenses in the field of digital services. In this regard, it is worth mentioning the state system for detecting, preventing and eliminating the consequences of computer attacks on the information resources of the Russian Federation (GosSOPKA), the regulation of which is contained in Federal Law No. 187-FZ of 26.07.2017 "On the security of the Critical Information Infrastructure of the Russian Federation". However, if there is a whole system of law enforcement agencies at the disposal of the state to combat crime in general, then for the currently relevant topics of cybercrime and information security, this novel seems somewhat insufficient.
"The achievement of the priorities of sustainable development of the Russian Federation is promoted by an active foreign policy, whose efforts are focused on finding agreement and overlapping interests with other states on the basis of a system of bilateral and multilateral mutually beneficial partnerships."
Fourth, given that generally accepted state borders and sovereignties in the cyber world have a very vague meaning, and cyber crime and other violations of human rights in digital reality are spread virtually all over the globe, there is a need to adopt fundamentally new international legal acts. In this international legislation, it is necessary to provide generally applicable and at the same time very specific ways to counter cyber crimes and other violations of the constitutional rights of citizens in the digital space.
In our opinion, only a combination of these measures can guarantee respect for the constitutional rights and freedoms of man and citizen in the context of the development of modern information and communication technologies.

About the authors

Mikhail V. Kolesov

Author for correspondence.
Email: kolesov.mv@yandex.ru
ORCID iD: 0000-0002-5346-6205
SPIN-code: 6357-3169

Candidate of Legal Sciences, Professor

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