Administrative Liability for Illegal Obtaining of Classified Information

Gorbunov Igor' Andreevich Postgraduate student, Department of Administrative and Financial Law, Peoples' Friendship University of Russia 117198, Russia, Moscow, Miklukho-Maklaya str., 6 igoragor97@mail.ru Other publications by this author

At the moment, the modern social order is undergoing significant changes due to the development of information and communication technologies and the gradual legalization of digital objects (digital assets and digital currency). In this regard, the value of information as a fundamental resource within the framework of the modern development of public relations is steadily increasing. The practice of using information shows that this phenomenon contains not only positive aspects, but also negative ones.

The positive aspects are expressed in the fact that information influences the movement of social progress: it develops various sectors of the economy and industrial relations, allows improving scientific and technical achievements and the educational system. Thanks to information development, the number of patents for inventions is increasing, new ways of optimizing economic processes are emerging, and the skills and abilities of employees of private and state (municipal) organizations are improving.

At the same time, information also hides many negative aspects that cause the need for proper legal regulation of information relations, taking into account the balance between private and public interests. Thus, more and more authors agree that at the present stage it is possible to talk about the emergence of a new weapon of mass destruction – information weapons ^{[3; 5; 7]}. Uncontrolled circulation of information can lead to extremely negative consequences, among which, for example: a threat to national security, psychological manipulation of public consciousness, increased social tension.

To minimize such negative consequences, the legislator pays close attention to ensuring information security as an integral part of national security ^[2]. A special case of information security is the protection of information, being an institute of information law within the framework of the information security sub-sector, the norms on information protection regulate public relations related, inter alia, to the circulation of restricted access information. ^[1]

The category of restricted access information includes information to which access is restricted in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state. These concepts have a general legal meaning and, in essence, determine what constitutional and legal goals the legislator pursued by establishing a ban on the free circulation of restricted access information. Thus, the constitutional and legal values mentioned in Part 1 of Article 9 of Federal Law No. 149-FZ of 27.07.2006 "On Information, Information Technologies and Information Protection" (hereinafter - the Law on Information) act as normative guidelines for restricting access to information.

Article 9 of the Law on Information mentions various types of restricted access information, the illegal circulation of which may entail liability established by law: state secret, commercial secret, professional secret, official secret, secret of private life (personal and family secrets, personal data). In a broad sense, a secret is a special information that represents the objective reality of the modern world, hidden from our understanding and perception ^[9]. It is worth noting that this list is open and can be supplemented taking into account the provisions of individual federal laws.

At the same time, the Law on Information Protection specifically emphasizes the obligation to respect the confidentiality of information, access to which is restricted by federal laws. Confidentiality of information in this case is expressed in the presence of a special legal regime for access to such information, which implies a mandatory requirement for a person who has access to certain information not to transfer such information to third parties without the consent of its owner.

It should be noted that, taking into account the indivisibility of regional and national security of the Russian Federation, the legal regime of restricted access information is established exclusively by federal laws, which is emphasized, including in Article 13.14.1 of the Code of Administrative Responsibility of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation). Nevertheless, a specific list of restricted access information may also be contained in federal by-laws. Such acts include, for example, Decree of the President of the Russian Federation No. 188 of March 6, 1997 "On approval of the List of confidential information". According to the fair comment of the authors, the list of confidential information fixed in this decree does not correspond to the level of modern legislative development, as it is incomplete and incorrect. ^{[6] [10]} Consequently, one of the priority areas of legislative activity in this area should be the alignment of by-laws with legislative acts regulating the legal regime of restricted access information.

In general, it is impossible not to state that the types of restricted access information enshrined in various regulatory legal acts currently do not represent a coherent system, which complicates the application of statutory liability measures against offenders. A similar problem is also relevant in relation to liability measures established by Article 13.14.1 of the Administrative Code of the Russian Federation. It is impossible not to agree with the position of E.V. Klimovich, who emphasized the special role of administrative responsibility "in ensuring the implementation and preservation of law and order in the information sphere" ^[4]. Thus, it is administrative responsibility that occupies a central place in the system of legal consequences for non-compliance with the provisions of information legislation.

A positive aspect of the structural content of the Administrative Code of the Russian Federation is the concentration of administrative structures in the field of information protection in a separate chapter 13 of the Administrative Code of the Russian Federation, which is devoted to administrative offenses in the field of communications and information. Despite this, a significant part of the composition of such offenses is contained in other articles of the Administrative Code of the Russian Federation, for example: Articles 14.30, 15.21, 17.13 of the Administrative Code of the Russian Federation. This is due to the fact that the composition of administrative offenses in the field of information security (including in the field of information protection) is based on various generic and specific objects of the offense.

Article 13.14.1 of the Administrative Code of the Russian Federation was adopted by Federal Law No. 206-FZ of 11.06.2021 "On Amendments to the Code of Administrative Offences of the Russian Federation" together with other amendments to the Administrative Code of the Russian Federation, among which there is also a tightening of administrative penalties for disclosure of information with restricted access (Article 13.14 of the Administrative Code of the Russian Federation). The legislator's unreasonably soft approach to the administrative responsibility established in the Administrative Code of the Russian Federation for the specified offense has been rightly criticized more than once, since the corresponding sanction of Article 13.14 of the Administrative Code of the Russian Federation does not correspond to the nature of the public danger of the act^[8]. The submitted amendments were adopted almost at the same time as the new National Security Strategy of the Russian Federation, approved by Presidential Decree No. 400 of 02.07.2021, which draws attention, including to the importance of ensuring information security. Thus, the legislator responds in a timely manner to emerging problems related to ensuring the security of the information space.

It is necessary to analyze the content of Article 13.14.1 of the Administrative Code of the Russian Federation through objective and subjective signs of an administrative offense, suggesting the presence of the following elements: object, objective side, subject, subjective side.

The specific object of the offense under consideration is public relations in the field of information. The immediate object of the offense consists in relations related to ensuring the confidentiality of information, access to which is restricted by federal law. The subject of the offense is various tangible (written documents) and intangible (electronic files and databases) objects containing restricted access information.

The objective side of the offense consists in committing actions aimed at illegally obtaining access to restricted access information, which fundamentally distinguishes Article 13.14.1 from Article 13.14 of the Administrative Code of the Russian Federation. On the objective side, the composition of the offense is formal, that is, the offense is considered completed from the moment of committing actions aimed at illegally obtaining access to restricted information.

Article 13.14.1 of the Administrative Code of the Russian Federation provides as exceptions a list of offenses for which responsibility comes under other articles of the Administrative Code of the Russian Federation. Thus, the effect of Article 13.14.1 of the Administrative Code of the Russian Federation is subsidiary in nature, which implies bringing persons to responsibility for this composition if the actions of such a person do not fall under the signs of offenses for obtaining information with limited access provided for by special norms of the Administrative Code of the Russian Federation. It is worth noting that even if the relevant reservation had not been fixed in Article 13.14.1 of the Administrative Code of the Russian Federation, the special compositions provided for in Articles 5.53, Parts 1 and 2 of Articles 13.11, Article 14.29, Part 5 of Article 15.19, Part 2 of Article 17.13 of the Administrative Code of the Russian Federation would have been used instead of the composition of the offense in question, taking into account the rules on collisions in law (priority of special norms over general ones) and the legal axiom according to which no one can be held responsible twice for the same offense (Part 5 of Article 4.1 of the Administrative Code of the Russian Federation).

Illegal receipt of information with restricted access does not entail administrative responsibility if it contains signs of a crime provided for by the Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation). Thus, the Criminal Code of the Russian Federation contains Article 183 (illegal receipt and disclosure of information constituting a commercial, tax or banking secret), which is applied instead of 13.14.1 of the Administrative Code of the Russian Federation regardless of the consequences of the committed act.

The subject of the offense may be a citizen who has reached the age of 16, an official, as well as a legal entity (a common subject). A legal entity will be liable for actions actually committed by an individual if the individual formally acted on behalf of and in the interests of the legal entity. The only penalty for this offense is a fine, except in cases where the subject of the offense is an official: an alternative punishment, taking into account the legal status of such persons, may also be disqualification for up to three years.

The subjective side is characterized by intent and carelessness. Nevertheless, in our opinion, in this case, a clearer approach is required on the possibility of bringing to responsibility for the illegal receipt of information with limited access, committed by negligence, which should be formed by law enforcement practice. Taking into account the fact that administrative responsibility for illegally obtaining information with limited access was introduced only in 2021, judicial practice under Article 13.14.1 of the Administrative Code of the Russian Federation has not yet been formed, as evidenced by the almost complete lack of information on the practice of applying this article in open sources. Cases of administrative offenses under Article 13.14.1 of the Administrative Code of the Russian Federation are considered by magistrates.

Thus, based on the above, we note the importance of proper systematization of regulatory legal acts that consolidate the legal regime of restricted access information, which will ensure the correct application of Article 13.14.1 of the Administrative Code of the Russian Federation by law enforcement agencies, as well as the need to form law enforcement practice, within which the subjective and objective signs of this offense will be more clearly formulated. At the same time, one of the priority areas of legislative activity should be the alignment of by-laws with legislative acts regulating the legal regime of restricted access information.