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Research of the basic concepts: the information of the limited access, confidentiality of the information, secret

At the present stage of development of a society the information became the main value. There are changes in society and state relations, revaluation of the rights and duties of citizens and authorities in information sphere.

The modern society already fully can be characterised as information with characteristic signs for it, such, as importance increase as that information and its separate kinds, and, on the one hand, the rights to access to it, and on protection of the information of the limited access, with another.

In spite of the fact that the information exists from the moment of origin of a human society, and its evolution would be impossible without the information, it is one of base categories concerning which definition till now there is a set of the points of view. Because the information is studied by different sciences, the scientific concept of the information will be inevitable to differ. In each science the approach to understanding of a category "information" is offered.

The jurisprudence has paid attention to the information as on independent object of studying only in 20 century, that, probably, is connected by that the information as that was not earlier object pravootnosheny. Allocation of the information as object of studying by jurisprudence has been caused also by social and economic development, and actually evolution of the legal theory.

Let's define an information place in system of objects of the rights. Information definitions are for this purpose necessary, accurate representation of that it is understood as the information, what object of the rights can be, establishing duties and the rights, responsibility of subjects concerning the information etc.

It is necessary to notice, that the legal category "information" develops and improved in the course of increasing inclusion of the information in a legal field.

It is possible to allocate some approaches to information definition: its representation in narrow, practical, aspect within the limits of a concrete science and as a general scientific phenomenon.

General scientific definitions of the information gravitate to considering it as unity of two components: data and communications, the maintenance and the form [18 [19]. These definitions do not give possibility to open the information nature as legal category. The "information" category assumes various variants of interpretation.

One of the first scientists-jurists information research as object of the rights (civil) was undertaken by V.A.Dozortsev considering, that «the information represents the data informed by one person to another, on it it is possible to speak and as about process of the message of these data» [20].

The basic difference of the given definition from the legislative consists that data can be considered as the information only when they are informed someone if they are not informed it — not the information. It is difficult to agree with it. As to value of the information as process of the message of these data in it the legislator uses the term "informing" when the right of one subject korrespondiruet a duty of another to inform certain data. In this sense legal regulation of the status of the information, an establishment of its legal regime differs from legal regulation of processes and procedures of its transfer, which proizvodny from the established mode.

In the legal literature of the same period it is possible to meet and opposite definitions.

M.M.Rassolov understands as the information «things or actions (a product or services), which:

- Are intended by their manufacturer for delivery of certain knowledge to the addressee (consumer);

- Are capable to fill up knowledge of the addressee without carrying out of any special atypical actions for it »[21 [22]. In this case there is an identification of the information and its material carriers (thing), and also the information and actions on its gathering and (service) processing. In the given definition non-material characters of the information, and also its basic properties which do not allow to carry the information as that to things or services are not considered. As to the second property of the information, proceeding from the given definition, that, probably, means the substantial party of the information. However it would be illogical to connect the characteristic of the information with ability to fill up knowledge of the addressee. According to the logic of the author of definition, whether transferred data, knowledge the information are or not, depends on value judgment of the addressee. To information definition it is impossible to consider the given approach correct.

The faithful position has been stated by V.A.Kopylov, offering to consider the information and its material carrier as a difficult thing: «the information thing is the documentary information consisting of data or messages, fixed on the material carrier, and the most material carrier and represents a difficult thing», that also is not absolutely correct.

The first legal definition of the information has been given in the Federal law from 20.02.1995 № 24-FZ «About the information, information and protection

Legal computer science: management in sphere

See: Kopylov V. A. The information right: studies. The grant. M: JUrist, 1997. With. 34.

Information ». However even before acceptance of the given law some regulatory legal acts to some extent regulating the relations concerning the information were accepted.

One of the first — the Law of the Russian Federation from 27.12.1991 № 2124-1 «About mass media» [23 [24]. In this Law there is no information definition, despite a considerable quantity of the norms, concerning information as that. However the legislator gives concept of the mass information (item 2) as which are understood intended for an unlimited circle of persons printing, audio - audiovisual both other messages and materials.

The analysis of other articles of the specified Law (item 38, 39, 40, 41, etc.) shows, that the legislator understands as the information, first of all, data.

In Law article 38 it is a question of the right of citizens to operative reception through mass media of authentic data on activity of the state bodies and the organisations, public associations, their officials, on the one hand, and duties of the state bodies and the organisations, public associations, their officials to give data on the activity to mass media by inquiries of editions, and also by carrying out a press - of conferences, dispatches of help and statistical materials and in other forms. Law article 40 contains norm according to which the delay in granting of the required information is admissible if demanded data cannot be presented to seven-day term. Article 41 establishes an interdiction for disclosure in extended messages and materials of the data given by the citizen with a condition of their preservation as fiduciary.

Thus, definition by the legislator of concept of the information as data, materials and messages is distinctly looked through.

The become invalid Law of the Russian Federation from 09.07.1993 № 5351-1

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«About the copyright and the adjacent rights» also did not give definition of the term "information".

As a rule, the legislative technics allows not to give definition of the term used in the text of the law, in two cases: in cases when this term has settled in language and in a science unequivocal understanding, and does not demand the explanatory and also when this term is already used in other laws and with reference to it definition is already made.

As legal definition of the term "information" before acceptance of the Federal law from 20.02.1995 № 24-FZ «About the information, information and information protection» [25 [26] [27] [28] [29] (has become invalid in connection with an adoption of law about the information). Did not exist, it is possible to assume, that the legislator has counted its common, not demanding the explanatory.

In item 2 of the specified Law the information has been defined as «data on persons, subjects, the facts, events, the phenomena and processes irrespective of the form of their representation» In later acts of definition of the information any more was not given, and the understanding of the information did not differ from resulted above (see, for example: the Federal law from 04.07.1996 № 85-FZ «About participation in the international information exchange» (has become invalid in connection with an adoption of law about the information); the Federal law from 18.07.1995 № 108-FZ «About advertising» (has become invalid in connection with acceptance of the Federal law from 13.03.2006 № 38-F3 «About advertising»)). The federal law «About the information, information technologies and about information protection», the Federal law which has replaced with self «About the information, information and information protection», in definition of the information has not brought essential changes: according to item 2 the information are data (the messages given) irrespective of the form of their representation.

The semantic maintenance of definition has not changed, however from definition the list of what data can concern has disappeared. As to the list it has been formulated as settling from what followed, that if any object will appear not included in it data on it cannot be considered as the information. Taking into account that any list contains danger to appear incomplete, refusal of construction of norm with use of the closed list is represented justified. Thus, words have been excluded from definition superfluous, as a matter of fact. However it is necessary to recognise, that, as well as the previous, new legislative definition of the information is too the general, but, nevertheless, as the practice, capable to carry out function of a legal definition has shown.

It is possible to consider the made definition of the information successful as «the information as that remains on periphery: the right always regulates the relations connected with that or other information object, instead of with the information as that». The position stated by I.L.Bachilo which believes is close To the given point of view, that such phenomenon as the information in a general view cannot be a subject of standard legal regulation. As the last the information resource in certain organizational-legal forms »can act only«.

It is necessary to note some more important moments by information consideration as object of the rights.

First, the information is understood as data (the messages given), accordingly, these concept are equivalent. It is logical, that concepts of "data" used in standard legal certificates, the "messages", "given" should be considered as the information, and to them the same norms, as to the information are applicable. [30 [31] [32] [33]

Secondly, and in the Federal law «About the information, information and information protection», and in the Federal law which has replaced it «About the information, information technologies and about information protection» independence of data, the messages given is underlined (i.e. Information) from their form. The last is represented exclusively important as the border between the material carrier and its non-material maintenance thereby is spent. This non-material maintenance also is the information, and its essence as object of the rights does not vary from the form, in which information

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It is presented.

Thirdly, it is necessary to consider extreme width of legislative definition of the information as, using only this definition, in some cases is inconvenient to delimit the information from other objects of the rights. For otgranichenija it from other objects it is right it is necessary to take into consideration a number of its characteristic signs and properties. Really, even, for example, securities, money contain the important information (data) and formally quite correspond to legislative definition of the information, but, abundantly clear, that the norms of the right established concerning the information, in this case not can to be applied: these are other objects of the rights.

In the scientific literature researches of properties, signs and information characteristics were undertaken. For the present research we will stop on the most essential characteristics of the information and its properties which should be considered at an establishment of a legal regime of the information.

The properties of the information having universal character, are generalised in E.A.Zverevoj's article «the information as object of the civil non-property rights» [34 [35] [36]. We will stop on important for the information characteristic as object pravootnosheny properties.

substantsionalnaja dependence of the information is shown in impossibility for it to exist and function without the material carrier. The given property does not deny possibility of the characteristic of the information as object of the rights, however because of substantsionalnoj dependence of the information, its binding to the material carrier, some lawyers believe possible to extend to it property institute. The given position has found the reflexion and in a number of standard legal certificates.

One more property of the information as marks L.K.Tereshchenko, — it «transformation — possibility to conclude the same maintenance in

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Different forms », relative independence of the form.

A.A Antopolsky, offering information definition, marks its such property, as «reproducibility, or kopiruemost». It is represented, that "reproducibility" and "kopiruemost" — not same. In the Russian legislation there is no term "kopiruemost". "Copying" as action is used in the Law on mass media and, according to the given norm, understood as one of ways of reproduction of documents, materials (material data carriers).

The term "reproducibility" also is absent in the Russian legislation. However the term "reproduction" — manufacturing of one or more copies of product or its part in any material form, including in shape zvuko - and videorecordings, manufacturing in three measurements of one or more copies of two-dimensional product and in two measurements — one or more copies of three-dimensional product is legislatively fixed; product record in a computer memory also is reproduction (see now become invalid in connection with acceptance of a part by the fourth GK the Law on the copyright and the adjacent rights »). Similarly reproduction with reference to the computer programs or bases of [37 [38] data is understood: this manufacturing of one or more copies of the computer program or a database in any material form, and also their record in a computer memory (see The law of the Russian Federation from 23.09.1992 № 3523-1 «About a right protection of programs for electronic computers and databases» [39], now become invalid in connection with acceptance of a part by the fourth GK).

It is represented, that properties of "reproducibility" and "kopiruemosti" are really inherent in the information, but is more exact, according to L.K.Tereshchenko, would be to define them as «possibility of unlimited duplicating, copying, reproduction, and transformation of forms of fixing of the information» [40].

One more property of the information — nepotrebljaemost in the course of use. It follows from non-material essence of the information.

In the legal literature one more property of the information — its subjective character also is used. Is available in view of, that the information results from activity of the subject possessing consciousness, i.e. Grows out of intellectual activity [41]. It is represented, that the specified property is characteristic for the knowledge representing the subjective form of existence of the information, an element of human consciousness. Accordingly, the given property cannot be characteristic for all information.

Summing up to the aforesaid, it is obviously necessary to allocate the following properties having basic value for the characteristic of the information as object of legal regulation:

- Non-material essence of the information;

- Physical impossibility of alienation of the information from its owner;

- obosobljaemost information from its owner;

- Inexhaustibility;

- substantsionalnaja dependence;

- nepotrebljaemost in the course of use (neunichtozhimost);

- Possibility of unlimited duplicating, copying, reproduction, and transformation (transformation) of forms of fixing of the information.

These properties are inherent in the information as a whole, and not just to its separate kinds, and with their account the information legal regime should be under construction.

Let's try to consider, that represents an information legal regime.

In the scientific literature there are various points of view that represents a legal regime. The answer to this question is basic for formation of the general conceptual device of the given research, and also will allow to give more accurate characteristic of a legal regime of the information.

The author agrees the definition resulted in the textbook «Elementary beginnings of the general theory of the right». The Legal regime represents the special kind of the right regulation characterised by an original combination of a complex of legal means:

- Stimulus;

- Permissions;

- objazyvany;

- Legal restrictions;

- Interdictions.

The legal regime expresses degree of rigidity of legal regulation, presence of known restrictions and privileges, admissible level of activity of subjects, limits of their legal independence.

The made general definition of a legal regime allows to formulate definition of a legal regime of the information necessary for made research and its kind — a legal regime of the information of the limited access. [42]

The legal regime of the information results from the legal regulation considering interests of the person and the state, requirement of a society concerning the information.

The author agrees with L.K.Tereshchenko's reflected in its thesis for a doctor's degree point of view «an information Legal regime» according to which «the information legal regime is characterised by following signs:

- The information legal regime is a characteristic of such object pravootnosheny as the information following from its non-material nature;

- The information legal regime is established for achievement of desirable social effect;

- The maintenance of a legal regime of the information is reflected in rules which in the set urged to provide object in view achievement;

- Rules are established or authorised by the state, i.e. Have obligatory force;

- Rules represent the system combining in a various parity interdictions and objazyvanija, privileges and permissions »[43].

According to the Law on the information, information technologies and protection of the information the information depending on an access category to it is subdivided into the popular information, and also on the information, access to which is limited by federal laws (the information of the limited access).

From the formal point of view, proceeding from the resulted norm, all information shares on two equivalent groups: on the popular information and on the information of the limited access.

Thus, the information of the limited access is the information having a legal regime, meaning restriction of its use on the basis of the law or the contract.

It is represented, that the term «the information of the limited access» is identical to the term «the confidential information».

On degree of severity of a legal regime the category of the information of the limited access includes concepts «confidentiality of the information» and "secret".

Confidentiality of the information represents the special legal regime having derivative character and established on the basis of the law or the contract, and providing:

- Access restriction;

- Interdiction for transfer to the third parties without the consent of the owner of the information (except for the cases established by the law);

- Interdiction for information distribution;

- Possibility, by the general rule, the owner of the information independently to solve a question on preservation of a mode of confidentiality.

It is possible to deduce following definition of a legal regime of confidentiality of the information. Confidentiality of the information is a legal regime of the information of the limited access, having derivative character and established on the basis of the law or the contract, and providing access restriction, an interdiction for transfer to the third parties without the consent of the owner of the information, an interdiction for information distribution, possibility, by the general rule, the owner of the information independently to solve a question on preservation of the given mode except for the cases established by the law or the contract.

The secret represents the special legal regime having primary or derivative character and established on the basis of the law, and providing:

- Interdiction or access restriction;

- Interdiction for transfer to the third parties without the consent of the owner of the information (except for the cases established by the law);

- Interdiction for information distribution.

Thus, the secret is the legal regime of the information having primary or derivative character, established on the basis of the law, and a providing interdiction or access restriction, an interdiction for transfer to the third parties without the consent of the owner of the information, an interdiction for distribution of the information except for the cases established by the law.

Because concepts of confidentiality of the information and secret are understood differing on degree of severity as legal regimes, it is offered:

- To fix the terms stated above «confidentiality of the information» and "secret" in item 2 of the Law on the information, information technologies and about information protection »;

- To unify all current legislation establishing

Legal regime of the information of the limited access, including in bank activity, regarding use of terms «confidentiality of the information» and "secret": the Federal law from 27.07.2006 № 149-FZ «About the information, information technologies and about information protection», the Federal law from 02.12.1990 № 395-1 «About banks and bank activity», the Federal law from 07.08.2001 № 115-FZ «About

Counteraction to legalisation (washing up) of the incomes received criminal by, and terrorism financing », the Federal law from 27.06.2011 № 161 FZ« About a national payment system », UK, KoAP, etc.

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A source: Krutikova Darya Ilinichna. LEGAL REGIME of the INFORMATION of the LIMITED ACCESS. The dissertation on competition of a scientific degree of the candidate of jurisprudence. Moscow - 2015. 2015

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