<<
>>

concept and signs of personal data

Term occurrence «personal data» was a consequence of democratic transformations to the Russian state and perceptions of idea of protection of the personal rights as paramount problem of the state on a way to an information society.

It is necessary to recognise, that the Russian legislation and practice long time did not contain any concrete positions about protection of personal data, being limited to only declarative positions, and that in very insignificant volume that has generated weight of reasonings on essence of a category of personal data and expediency of its occurrence in the Russian right.

To the author sees quite logical for realisation of the purposes and problems of dissertational research in detail to consider as a whole the maintenance of a legal category «personal data». It will allow to formulate further and most accurately to allocate an object of research, to formulate essence of the Russian approach to legal regulation of the considered phenomenon and to state its estimation. For this purpose it is necessary to correlate categories: "information", "data" and «personal data» and, first of all, to allocate discriminating signs of last.

To begin follows from concept "information" which, still, represents considerable difficulties and its disclosing is one of the major problems not only legal, but also all science as a whole. The term occurs from Latin informatio - acquaintance, a statement, an explanation. And originally associated with such concepts, as the message, the message. In a modern science there are tens definitions of the information, however the majority of modern scientists finally are forced to recognise, that exhaustive concept to formulate it is impossible, as it will depend in many respects on sphere of scientific knowledge and applied character of research [48]. Most full the essence of the information is investigated in philosophy and computer science where the large quantity of approaches is known.

Each concept, according to O.I.Semenkova1, reflects

The certain aspect of the information and consequently should be considered them in

L

Unity. R.F.Abdeev suggests to reduce all concepts offered by different authors to two basic approaches, information concepts - attributive and functional. The essence of the first approach consists in understanding of the information as properties of all material objects, i.e. as attribute of a matter. So, in particular, consider A.S.Presman, V.N.Sablin, V.A.Minaev [49 [50] [51] and some other [52]. V.N.Lopatin specifies: «... That circumstance, that the information is realised through objects of a matter and its property, allows us to approve, that any information is material» [53]. The functional concept of the information connects the information with functioning samoorganizujushchihsja systems. N.J.Klimontovich, suggests to consider as the information only that, «.chto is understood also itself reproduces the information.», i.e. «the information is language» [54 [55] [56]. From the point of view of the semantic theory of the information, which founder

p

J.A.Shrejder is, there are two categories of the information - internal and external. The internal information - the information as the characteristic of organisation of any system; that else Aristotle named "entelehiej", and in a modern science it is accepted to call

About

«The structural information».

The structural information is inherent in all objects of the live and lifeless nature and possesses relative objective independence. The external information - the information as means of the organisation of any system, that Aristotle named "kinesisom", and in a modern science is called «as the relative information","the operative information» 1, closely connected with reflexion. Norbert Wiener, "father" of cybernetics as it sometimes name, specified, that «the information is an information, instead of energy and not a matter», formulating concept of the information through «a maintenance designation... Such message which is received from an external world in the course of our adaptation to it and adaptations

L

Our feelings ». A.A. Sagittariuses the result of reflexion of movement of objects of a material world in wildlife systems» [57 [58] [59] considers the information as «, denying thereby the concept of the information as attribute of a matter. In its opinion, the information as reflexion of movement of objects of the material world, embodied in an organism or collective of organisms, is used by the last for adaptation to changes of the surrounding validity and shown in the form of data and messages. Thus data also are result of reflexion by material world organisms including messages, and messages in that case - a character set with which help of data are transferred to other organisms and can be apprehended them i.e. with which help organisms exchange data [60].

The UNESCO has defined «the information as the universal substance penetrating all spheres of human activity, serving by a conductor of knowledge and data, the tool of dialogue, mutual understanding and cooperation, the statement of stereotypes of thinking and behaviour» [61].

As a whole, definition of concept of the information through "data" categories, "message" meets most often in various sorts to reference books. So, for example, S.I.Ozhegov has made such simple definition:

1) «data on world around and the processes proceeding in it, perceived by the person or the special device;

2) the messages informing on a state of affairs, on a condition something »1.

The modern dictionary of foreign words treats concept of the information as one of most general concepts of a modern science similarly:

1) «the message on something;

2) the data which are object of storage, processing and transfer;

3) in the mathematician, cybernetics - a quantitative measure of elimination

Uncertainty (entropy), a measure of the organisation of system »[62 [63].

Perhaps, it is possible to name still set of sources, scientific works, in

Which from a position of various spheres of scientific knowledge the concept of the information is considered, but practically almost in the majority of them it is defined through categories of "data" and "message". The concept of "data" of Russian is defined as «knowledge, representation of something» which can be considered as result of reflexion in consciousness of the person of a material world. The concept "message" is connected in many respects with the communications certificate, i.e. by transfers of data, knowledge from one subject/system - another.

N.Wiener, marking similar laws, named their two measurements of the information defining its nature, and has allocated the information-message (a signal, a command) and the information-maintenance, as result of perception of the message [64].

P.U.Kuznetsov also has noted two constituting elements of understanding of the information, with reference to a human body: the transferred message (a command, a signal) and the received figurative designation (kontsepta), components together the uniform homogeneous whole. On the basis of what it had been drew a conclusion on two deskriptah information: the message (a signal, a command) - formal property and a figurative designation (kontsepta) - substantial свойства1, i.e. about dualisticheskoj to the information nature.

Finally it is possible to come to conclusion that for objects of wildlife:

«The information - is result of reflexion of movement of objects of the material world, embodied in an organism and used by it for adaptation to world around changes. In collective of the same

L

Organisms the information addresses in the form of data and messages ».

With reference to human community it is possible to consider, that the result of reflexion of changes of a material world in a human body will be the information just, collective of human individuals which exists in the form of data and is transferred in the form of messages to other individuals/collectives of individuals.

How much such definition functionally also approaches for use in legal science, unequivocally to tell difficult as the problem of definition of the information in the right is so actual, as well as in other spheres of scientific knowledge. Nevertheless, many authors admits, that the right, as well as in other humanities, similar definitions through categories "value", "message", "data" are used. Absence of uniform concept including in the right, it is noted by experts still in the mid-eighties. At the moment at [65 [66] definition of the information such terms and concepts, as are very often used: « The information "," the document "," document file "," the official information "," the mass information "," data "," databanks "," information resource "," the computer information "," file "," site "," page "," digital signature "," the legal information »etc. Such abundance of terms, according to I.L.Bachilo1, can form the basis for the theory of system of objects of the information, however up to the present moment such system just starts to develop.

According to L.K.Tereshchenko, in the majority of researches in the field of the legal science, devoted to questions of detailed research of a legal definition of the information, as a rule, the result is not beyond already existing legal definitions [67 [68] [69].

Basically these definitions also start with the material or ideal nature of the information.

It is possible to carry A.A.Antopolsky's definition which defines the information as «result of conscious activity to the first group

-e

The person, fixed in any suitable form for perception ». A lack of the specified definition is too the wide range of objects which can be simultaneously and results of conscious activity of people and to have the form perceived by the individual. Further in A.A.Antopolsky's work specifies, that as the information understands« the written down or informed data on persons, subjects, the facts, events, the phenomena and processes, irrespective of the form of their representation »[70], that actually under the maintenance it is substantially close to legal definition of the information. As other example information definition can serve in A.V.Minbaleeva's work -« an ideal product of reflexion of the world (the surrounding validity) in all set of its components (the phenomenon, objects, processes, to communication, etc.), existing in any capable form for objective perception »1.

If to address directly to legislative definition the basic law «About the information, information technologies and about information protection» has defined the information as «data (the messages given) irrespective of the form of their representation» [71 [72] [73]. If to draw an analogy with the previous law in which it was said, that «the information - data on persons, subjects, the facts, events, the phenomena and processes

-e

Irrespective of the form of their representation », - that is available it is possible to note some positive tendencies in definition of the information not only as data, but also through the message and data. However the legislator carries, apparently, messages and data to a category of data, proceeding from the structure of definition, and, unfortunately, does not give directly definition of any of these categories, and especially does not give representation about their parity that is the serious basis for criticism.

Taking into account specificity of the jural sphere of A.A.Antopolsky [74] has suggested to understand as the information «a reflexion product in consciousness of subjects of the real phenomena, subjects and the processes existing in the objective form and possessing properties of reproducibility and kopiruemosti». In that case, in its opinion, the information it is necessary to define as «the written down or informed data on persons, subjects, the facts, events, the phenomena and processes irrespective of the form of their representation». Such definition actually not too differs on sense from legal, but during too time, according to the author, is successful enough as equally reflects substantial property of the information (the data, knowledge, an image, kontsept) and correlates it with formal (the message, a signal), thus riveting attention to the last. It is logical also because substantial constituting (the knowledge, an image-kontsept) concerns mental activity, essence of the individual more likely and hardly can be in that case object of legal regulation whereas formally expressed message - can. Thus the "data" category sees quite upotrebimoj at an information designation as reflects an end-product of prospective influence on consciousness of the individual, i.e. on arising in consciousness of the individual kontsept. Concerning the information circulating in a society, it is necessary to consider obviously, used category of "data" as instructions for an image-kontsept transferred from one subject or group of subjects another, by means of messages (signals, commands), within the limits of the certain system providing or aspiring to provide with peak efficiency identity of a kontsepta-image at the subject-source and the subject-recipient or their groups. Such universal system of commands, signals it is necessary to recognise language as a universal remedy of transfer of images-kontseptov (data) from one individual or group of individuals as another.

Coming back to concept "data", it is necessary to mention, that it strongly associates with sphere of computer science and is understood there, first of all, as «the information presented in the formalized kind, that provides possibility of its storage, automatic processing and transfer by means of means (for example, the COMPUTER)» [75]. T.F.Efremovoj's dictionary makes approximately similar definition and considers data as «data, the fact, characterising someone, something, necessary for any conclusions, decisions» 1. Russian Explanatory dictionary contains similar definition: «data - the data necessary for what -

L

nibud conclusions, the decision ». The electronic dictionary of business terms also contains close under the maintenance previous concept of data as« data, the information, data on people, the firms, presented in the formalized kind convenient for transfer, interpretation and

L

Processings ».

According to the author, it is necessary to note in these definitions two essential moments - two major importances of the term "data" in language.

1. «Data - the information (data, messages), necessary for manufacture with it of certain actions, i.e. its processing. In this case the term has no any special value and the information as a whole is used as a synonym of a word.

2. Data, as the technical term in the computer science, designating the information (data, messages) in the certain ordered and formalized kind, prepared for processing by means of means of automation, means (COMPUTER) »[76 [77] [78] [79].

Secondly, and it, perhaps, the most important thing, that data are the information formalized, presented in any certain kind which would provide possibility of their further processing or, at least, promoted it and has made data convenient for the subsequent processing. Formalisation degree in definitions is not underlined, in this connection it is possible is proved to consider them in the widest sense. Information streamlining can mention in particular:

1) the carrier on which data (electronic, paper, other sort) contain;

2) sign system (language, the programming language, etc.);

3) the internal maintenance (logic structure, categories of the data, necessary requisites).

Acceptance of such state of affairs allows to speak about some possibility correlation of concepts "information" - "data". It is obvious, that these concepts need to be considered as the general both private, and "data" thereupon are one of forms of representation of the information, and that it is necessary to name their discriminating sign formalizovannost, i.e. their certain orderliness. Formalizovannost data it is shown in way and means of representation of messages, data to provide their possibility of processing with certain way or to facilitate it.

We will not find legislative definition of the term "data", but there are other definitions which can suggest an idea how the legislator treats this concept. In the Russian legislation terms "database", "databank", «an information resource (» were actively used and used. In particular, nowadays become invalid Federal act «About a right protection of programs for electronic computers and databases» contained such definition of a database - «it is the objective form of representation and the data set organisation (for example: articles, calculations), systematised so that these data could be found and processed by means of the COMPUTER» [80]. The Civil code in item 1260 ch. 2 as "database" understands «the set of independent materials presented in the objective form (articles, calculations, normative acts, judgements and other similar materials), systematised so that these materials could be found and processed by means of the electronic computer (COMPUTER)». The word-combination "databank" meets in the legislation with reference to any concrete set of data, for example the Federal act «About the state databank about children who have remained without care of parents» 1 where under the state databank about children who have remained without care of parents, in item 1 mean set of information resources and information technologies with which help their gathering is carried out, processing, accumulation, storage, search and granting to citizens is more often. The same point of view - to consolidate under concept "databank" set of a database and information technologies for their processing - is reflected in the Governmental order «About the state account and registration of bases and databanks» [81 [82] where in item 2 directly it is underlined, that «the database is understood as set of the organised interconnected data on machine-readable carriers», and "databank" is, accordingly, «set of databases, and also the program, language and other means intended for centralised accumulation of data and their use by means of electronic computers» [83]. The category «information resources» is used so widely in the legislation, however directly the treatment of this term was is given in the Federal act «About the information, information and information protection» where they were meant «as separate documents or document files in information systems (libraries, archives, funds, databanks, other information systems)» [84] which has become invalid now, and the law come to it in the stead does not use such concept basically.

Thus, it is possible to draw a conclusion on that, as in the legislation the information is meant "data" (messages, data), definitely organised and presented on machine carriers, i.e. intended for the automated processing with use of information technologies and being in bases or databanks, first of all, and speaking to the modern language, in information systems. Differently, the legislator does not spend accurate distinction between data and the information, however, certainly, considers data as an information version. In some acts, for example, in the Federal act «About communication» 1, it is said nothing that data represent the information on the electronic carrier or that they are processed completely, or at least partially, by means of automation means. At the same time the analysis of the text of article 53 of the given law allows to say that databases here are understood as the automated (electronic) databases about subscribers of communication statements and that they are presented in the formalized/ordered kind about what

Testifies ch. 1 and ch. 2 these articles where it is spoken about the list of the data brought in a database, and also about possibility of transfer of data from a database on magnetic carriers and by means of telecommunication means. Other example - the data brought in the state databank about children,

L

The parents who have remained without care. The Federal act speaks in item 4 about formalisation - standardization of the documentary information on children who have remained without care of parents and citizens, wishing them to accept, which then is brought in a database/databank of standardization (unification) of processes of processing, storage, restoration,

Duplications, grantings of the specified information. Process of gathering of data brought in the above-stated databank is carried out in [85 [86] conformity with the order provided, the corresponding order of Ministry of Education RF1 in which directly it is underlined, what information in it is brought and how. There is it partially by filling of the questionnaire with the child or accordingly the citizen, wishing to adopt the child that allows to say that enquires and joins the database certain categories of data: First name, middle initial, last name, the floor, a birth date and birth place, citizenship, a state of health etc. the documentary information is stored in the private affair of the child or the citizen and brought in the automated databases.

Such operating procedure with the data brought in bases and databanks, is far not an exception, and is faster a rule as when it is a question of formation of bases and databanks, process of inclusion of data (data) in them is formalized, ordered, from the point of view of their representation and categories of data which join in them. Practically in any case when it is a question of gathering of data for conducting registers, registers, databases, categories of the information which come under to inclusion in them, and also an order of its gathering are always provided, that again speaks about the formalized character of the data included in a category "data".

In legal science many works are devoted correlation of categories "information" and "data" not too, and basically these concepts are considered as synonymous, without allocation of any especial signs of data as information versions. Nevertheless separate ideas about it can be met at V.P.Ivanskogo who underlines, that it is necessary to understand as "data" mainly the information received as a result of processing of the COMPUTER or prepared in the special form for such processing [87 [88].

Hence, on the basis of the analysis of positions of the legislation and reference books it is necessary to come to conclusion that:

Data are an information (data, messages), ordered from the point of view of the form of representation and the internal maintenance that provided or would simplify its processing in full or in part by means of automation means in information systems.

Hence, at correlation of two categories - "information" and "data" it is possible to come to conclusion that "data" will be one of information forms, the main which discriminating sign will be its ordered character which would simplify processing, work with it and which comes under to processing in information systems, mainly by means of automation means.

Now begins possible to correlate, at last, categories "information", "data" and «personal data» and to define discriminating signs of the last, and to make their definition.

For the first time the term «personal data» in the Russian

The legislation there is simultaneously with similar concept «an information on citizens», in the Federal act «About the information, information and information protection» 1 in which item 2 it was spoken: «... The information on citizens (personal data) - data on the facts, events and circumstances of a life of the citizen, allowing to identify its person». Under the text of the given law

It was meant, that in more details the question on personal data will be solved by acceptance of the special legislation [89 [90] [91] which was tightened almost for 10 years. With acceptance of the special legislation - the Federal act «About personal data» - the treatment of concept of personal data has a little changed: «personal data - any information concerning the physical person defined or defined on the basis of such information (the subject of personal data), including its surname, a name, a patronymic, year, month, a birth date and birth place, the address, family, social, a property status, formation, a trade, incomes, other information» 1. It is necessary to note a number of the essential positive elements which were absent in earlier current legislation in new treatment:

- Refusal of concept «the information on citizens» and mentions further under the definition text only citizens and transition to a category of "the physical person», including in a category of subjects of personal data not only citizens, but also other persons, foreigners, stateless persons etc.;

- Refusal of "identification" as one of the basic signs of personal data, having replaced it «the information on the physical person defined or defined on the basis of this information» [92 [93] [94].

"Identification" as necessary criterion or a sign of personal data is allocated also at A.A.Fatjanova. However use of the given criterion can lead to a number of difficulties, considering, that process of identification as criterion otgranichenija personal data from other categories of data will lead inevitably to occurrence of set of disputes on possibility or impossibility unequivocally to establish the person on the basis of set of those or other data on it, and consequently, to problems in pravoprimenitelnoj to practice. O.B.Prosvetova in this respect holds the opinion about inexpediency of narrowing of value of personal data only to the data serving for identification of the person, that, in its opinion, «mismatches article 24 of the Constitution which covers all data on a private life of the person» 1. Brebant fairly notices, that «now, with development of technologies of processing of the received information, possibility of identification of the person by any fragment of the information potentially extends. Thereupon, from its point of view, the widening of personal data to instructions on the information anyhow connected with the subject is fair, resulting as an example fragments zvuko - videorecordings, handwriting, the text with features of morphology and style» [95 [96] [97].

In other acts similar definitions of personal data, both through an information category, and through data category also contain, in particular in the Labour code in item 85 is said, that: «personal data of the worker - the information necessary for the employer in connection with labour relations and concerning concrete worker», and in the Federal act «About the State automated system of the Russian Federation"Elections"in item 7 item 2, that« personal data - data which contain in GAS "Elections", allow to identify the person of the citizen and which list is established by federal acts ». The federal legislation on public service also actively uses

3

Concepts «personal data of the civil servant» and «personal data of the state civil employee» [98], not opening their value in the text of laws. However special Position about personal data of the state civil employee of the Russian Federation and conducting its private affair contains definition:

«... Personal data state civil serving as data on the facts, events and circumstances of a life of the civil employee, allowing to identify its person and containing in the private affair of the civil employee or coming under to inclusion in its private affair» 1.

In foreign and international practice «personal data» are equally treated through a category of the information or similar categories, considering thus features or "errors" which inevitably arise while translating terminology from one language on another.

At the international level, for example, it is possible to name Council OSER Recommendations, concerning substantive provisions about protection of inviolability of a private life and the international exchanges of personal data [99 [100] [101] in which it is offered to carry to personal data «any information concerning an individual (to" the subject of data »), whose person either it is known, or can be established». Definition very similar inherently contains and in the Convention of the Council of Europe

-e

About protection of the person in connection with the automated data processing in which as personal data understand «the information, concerning concrete or able to be identified persons (“ the subject of data ”)».

In one of the most known sources - the Instruction of the European parliament and EU Council 95/46/ЕС [102] more developed definition, however, logically a little differing from the previous contains:

«...“ personal data ”- any information connected with the identified or identified physical person (“ the subject of data ”); the identified person is the person who can be identified expressly or by implication, in particular, by means of the reference to identification number or to one, or some factors specific to its physical, psychological, mental, economic, cultural or social identity».

Last source at the international level which costs a separate mention in that case, is the Modelling law «About personal data» for the CIS countries where the following treatment is offered:

«Personal data - the information (fixed on the material carrier) about the concrete person which is identified or can be identified with it. Biographic and identification data, personal characteristics, data concern personal data about family, a social status, formation, a trade, office and a financial position, a state of health and other» [103].

The modern foreign legislation in many respects repeats the above-stated definitions, as it is not surprising, as the listed treatments of the term «personal data» contain in the international certificates, which implementirovany in the legislation of many states.

In particular, in the majority of the countries of the European union the term «personal data» it is similar to positions of Instructions of the European parliament and EU Council 95/46/ЕС are defined through a category «identifiability of the subject of data».

As example the Austrian law of 2000 where in item 4 seconds 1 are made following definition of personal data can serve:

«... The information concerning the subject of data which is identified or can be identified» 1. Practically identical position contains in item 1 of the Danish law on protection of data [104 [105] [106]. Similar definitions contain also in the legislation of Sweden and many other things of the European countries.

More developed definition can be found in the legislation of France [107]: «... Personal data are the any information concerning the physical person, identified or which can be identified, expressly or by implication, by the reference on

Identification number or one, or some elements which (subject) are inherent in it ».

Doktrinalnye definitions of personal data in the Russian legal science not so are numerous and are in many respects very similar. For example, O.B.Prosvetova gives it such treatment: «personal given are data on the facts, events, and circumstances of a life of the physical person, his family, and also allowing to identify them with the concrete individual and reflecting features of the last in relation to other people (society)» [108].

V.N.Lopatin also makes in something similar definition:

«.personalnye data - the information (fixed on any carrier) about the concrete person which is identified or can be identified with it» [109].

On the interesting looks, as a matter of fact speaking, the comment to legal definition, collective of authors (A.G.Areshev, I.L.Bachilo, L.A.Sergienko) which are guided by legal definition, considering it as the general, at the same time specifying the maintenance and the importance of a considered category as follows:

«Personal given are such data which are formed at personal desire of the individual and on the basis of the law in the course of contact of the individual to public authority structures, public and private structures, to other individuals in the course of its life cycle, are used in the social environment in its interests and in interests of the state on the basis of the international norms and the national legislation» 1.

It is possible to find and other definitions, but basically all are very close to the definition given by the legislator with some variations. A.V.Kucherenko and A.I.Veldera's some modern researches do not contain own definition of personal data, probably, authors consider its settled enough in a science and practice, focusing attention to other questions of legal regulation of their turn.

In all listed definitions, from the point of view of the author, there is a same logic discrepancy which would be easy enough for avoiding. At once it is necessary to reserve, that it does not concern definitions in the international and foreign certificates as at them there can be errors while translating and the semantic discrepancies practically always arising while translating from one language on another. Discrepancy consists that in one of the cases set forth above the term «personal data» is not defined as "data", and the general categories without corresponding specification are used thus more: "data", "information" whereas according to the logic of things it would be necessary to make the return. [110 [111] [112]

At least, definition of personal data through a category "information", without the necessary specification, looks somewhat illogically without instructions of signs of this information as data.

Therefore the most correct approach in that case would be to define «personal data» through a category "data" or "information", in the latter case specifying on its discriminating signs as data - the formalized character, with a view of their further processing and use in information systems by means of mainly means of automation. A unique discriminating sign actually «personal data» on the basis of previous reasonings will be that these data will be about the certain physical person, i.e. are connected with it, without dependence from possibility of identification of the last on their basis.

It is interesting, that at the analysis of the Instruction of the European parliament and EU Council 95/46/ЕС [113] it is possible to draw a conclusion, that definitely it does specifications of such character, not casually putting into circulation concepts «a file of personal data», specifying in certain structure of the information which allows its inclusion and a finding in bases data/databanks, information systems, and also facilitates possibility of search in its any fragment.

Thus, definition offered by the author should look as follows:

Personal data - data on the physical person or concerning expressly or by implication to the physical person defined or defined on the basis of such data (the subject of personal data), including its surname, a name, a patronymic, year, month, a birth date and birth place, the address, family, social, a property status, formation, a trade, incomes, and also other information which is presented in the formalized kind providing possibility of their processing in information systems, mainly by means of automation means, in full or in part.

Let's note in the specified definition a key sign of "personal data» - communication of the person (the subject of data) and the information. Such communication can be a straight line - by instructions on the person or a number

Individual/unique lines, characteristics of the person, its image, a voice etc., personal identifiers, - and also indirect when the analysis of available set of the information on the subject inevitably specifies in it, even in case of absence of express indication on this person.

Loss or absence of such communication does not allow to characterise the information as personal data. This example is "obezlichivanie" personal data, i.e. communication rupture between the subject and some set of the information by removal from it data on individual/unique lines, characteristics of the person, it

Personal identifiers. However the question about "obezlichennosti" can cause data, in turn, and weight of other problems as technologies put into practice obezlichivanija data do not guarantee to the full "impossibility" of their correlation with the concrete person [114]. Most often meeting technologies sometimes consist only at a distance from information system of a surname, a name, a patronymic, a date of birth, a residence, personal identifiers, etc. information. Frequently it allows operators to cut expenses on service of systems of personal data by information division into actually database, i.e. the information and system of the personal identifiers/indexes stored separately, for correlation in case of need information with the concrete person. In the latter case the operator should put less efforts for protection of "the depersonalized information», protecting first of all information system of personal identifiers. At the same time "weakness" of such protection consists in potential possibility of identification of the subject of data on the basis of set of the data stored in system of depersonalized personal data, and also from other similar or open information systems, considering modern technological possibilities on search and information processing. Apparently from told, the term "obezlichivanie" demands certain, more detailed studying, including legislative treatment, probably, with division into various levels or technologies "obezlichivanija", identifications of the subject guaranteeing to some extent "impossibility" with data.

Another, some kind of additional criterion of reference of the information to personal data its maintenance - i.e. the formalized character and communication with information system when the information represents caused by the purposes and processing problems in information system a set of data is. Actually processing of personal data is made in information systems of personal data and, as a rule, such communication can be established even in case of its extraction from information system, in particular if in system the unique data set is processed.

In addition to a question on terminology we will notice, that in the literature and standard sources up to present time the set of synonymous concepts so, in particular, it is possible to meet is used: «personal data», «the information on citizens», «the personal information», «the information of personal character», «personal data». At seeming sinonimichnosti these concepts it is necessary to draw all the same a certain side between them and to allocate certain situations and cases of their use.

The term most often used and often meeting in normative acts from all listed above is the term «personal data» in spite of the fact that in overwhelming majority of legislative and normative acts where it is used, its treatment is absent, apparently, sending to terminology of the special legislation. It is possible to carry to such acts: the Code about administrative violations - item 13.11, the Tax code - item 84;

-e

The air code - item 85.1; the Federal act «About certificates of registration» 4 - item 12 ch. 1; the Federal act «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» 5 - item 2, item 52.1; the Federal act «About the state protection» 6 - item 22; the Federal act «About jurymen of vessels of the general jurisdiction in the Russian Federation» - item 5 ch. 3; the Federal act «About

About

The military account and conscription »- item 8; the Federal act« About not state pension funds »9 - item 15; the Federal act« About compulsory insurance of a civil liability of owners of vehicles »10 - item 30; the Federal act« About the state registration of legal bodies and individual businessmen »[115 [116] - item 6 ch. 6; the Federal act« About investment of means for financing of a memory part of labour pension in Russian

1 2 Federations »- item 37; the Federal act« About a securities market »- item 44

Etc. In many of these cases, if not in the text of the law, in the text

The subordinate legislation normative acts supplementing its positions, contains

Approximate instructions that concerns personal data as that:

First name, middle initial, last name, a birth date and birth place, a sex, age, and also frequently the special

The data necessary for realisation of the purposes of data processing (an INN,

Number of pension insurance), etc.

As a synonym of "personal data» in the legislation and normative acts the term «the information on citizens» is often used, usually their use occurs in parallel in the text as, for example, in the Code about administrative правонарушениях3 - item 13.11, but it is possible to name a number of normative acts where the term use «the information on citizens» occurs without a mention of "personal data». For example, in Federal act item 2 «About a mail service» 4 or positions of the Concept of creation of system of manufacturing, registration and the control of passport and visa documents new поколения5. However, it is faster not a rule, and an exception, besides in special way the term «the information on citizens» in such cases is not treated, that quite speaks a coordination with definition of the former base law «About the information, information and information protection» 6.

Some confusion in bolshej degrees causes use in the text of normative acts and in the scientific literature of terms: «the personal information","the information of personal character","the information on private life of the person/information of personal character». If in [117] scientific sphere they are used often as synonyms of "personal data», as a rule, for logic unloading of the text as distinctions in such cases and giving of the special value which are distinct from by it of "personal data», it is not made in normative acts such use looks faster illogical as obosnovanno can quite cause a question on terminology, the legal maintenance, interpretation and finally to generate practical difficulties. In particular, in the Federal act «About social service of citizens of advanced age and invalids» yet in item 7 the term «the information of personal character», and in the Federal act «so a long time was used About

L

To external investigation »in item 9 - the term« the information mentioning private life, honour and advantage of citizens », thus in special way they besides are not treated. The term« the personal information »is used in gl. IV paragraph 4 of the Concept of creation of system of the personal account of the population of the Russian Federation, and also in a number of other normative acts and proceedings, as a synonym of" personal data ». The legislation of a city of Moscow too uses the term« the information of personal character »4, referring thus on the text of articles 23 and 24 Constitutions of the Russian Federation. Besides, the term« the information of personal character »has been used in the bill name« About the information of personal character »5, brought by group of deputies G osudarstvennoj the Dumas though in the text the term« personal data »was treated and used only.

Perhaps, it is only small digression to so various terminology of the legislation as exist [118] more [119 [120] [121] [122]

Acts where the concept of personal data is not used, though, undoubtedly, it is a question of the extremely similar categories. The federal act «About communication» uses the term «data on subscribers-citizens» 1, in the Federal act «About the individual personified account in system of obligatory pension insurance» in item 8 the term «data on insured persons», in the Federal act «About a legal status of foreign subjects in the Russian Federation» in item 26 - «the information on the foreign subject», in the Federal act «About All-Russia is used

4

Population censuses "-" data on the population », and also set of others where the question on an order of processing of the information on physical persons, anyhow, is considered.

Such visible variety of terms is faster dezorientirujushchim and demands harmonisation and-or terminology unification on fundamentals of legislation about personal data.

Thus the author considers quite logical use along with the term «personal data», the term «the personal information», corresponding as the general and private. In that case it is necessary to consider as "personal data» only that information which is processed in full or in part by means of means of automation or similar, similarly, presented in the formalized kind, for example: in the automated systems, databases, libraries, archives whereas the personal information will be along with already told to include all file of the information on the individual, irrespective of the form of their representation and further use and processing. As a whole «the personal information», taking into account the aforesaid, it was possible to treat the term so: [123 [124] [125] [126]

The personal information - any information (data, messages) about the physical person, including the information about its private, private life, personal data, and also other information (data, messages) about the facts, events and circumstances of a life of the person.

Accordingly occurrence in mass-media or otherwise placing in full or in part a fragment of the data concerning the physical person, from any database will be anything other as distribution of personal data, or the personal information simultaneously. At the same time occurrence in a press of the story or the message containing data on circumstances of a life of the physical person which have been received at it personally or from its acquaintances, relatives, not being exposed to processing by means of means of automation and not being anything brought preliminary in a database/databank other as the message of the personal information and in any way personal data to what otherwise it is possible to come on the basis of the analysis of the definition offered in the legislation. It is possible to result still set of such examples where actually it is a question of the personal information which sometimes, it is visible neosoznanno, name similar and synonymous concept, but thus having the specificity - «personal data». The statement, that «not any information on the person is personal data», it is possible to find and at O.B.Prosvetovoj. [127]

Danger of such extensive interpretation can lead to mixture of existing legal institutions and the norms, which differentiation and so a question more than uneasy, in particular, at least, - the rights to respect of a private life. As occurrence of messages about private and private life of the individual which have not been taken from an archive database/databank, and such more than probably (for example, direct citing of the story of the eyewitness, etc.), will mention directly the right to respect private, private life - independent though also the related legal institution which has independent legislative regulation, instead of a protection question of "personal data».

1.3.

<< | >>
A source: Bundin Michael Vjacheslavovich. the PERSONAL INFORMATION of the LIMITED ACCESS GIVEN In SYSTEM. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

More on topic concept and signs of personal data:

  1. CHAPTER 1. CONCEPT AND THE MAINTENANCE OF PERSONAL DATA
  2. the maintenance and kinds of personal data
  3. legal nature of personal data
  4. § 2. Personal data as a subject of protection of fundamental laws in Germany
  5. Features of a legal regime of information systems of personal data
  6. modern lines of development of the legislation on the personal Data in foreign countries
  7. features of formation of the Russian approach to legal regulation of personal data
  8. § 2. Personal data as a subject of protection of constitutional laws in Russia
  9. § 3. The basic lines of the German model of a konstitutsionno-legal protection of personal data
  10. confidentiality as a legal regime element Personal data
  11. Organization-legal problems of realisation of the right to safety of the information on a private life and personal data
  12. § 3. Registration of the Russian model of a konstitutsionno-legal protection of personal data: doktrinalnyj the approach
  13. a legal regime of personal data as information The limited access
  14. CHAPTER 2. PERSONAL DATA AS THE INFORMATION OF THE LIMITED ACCESS
  15. CHAPTER 3. FORMATION OF THE RUSSIAN AND FOREIGN LEGISLATION ON PERSONAL DATA
  16. Chapter 1. The German model of a konstitutsionno-legal protection of personal data
  17. § 1. Legal preconditions of formation of the Russian model of a konstitutsionno-legal protection of personal data