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§ 2Л. Wrongful access to the computer information

Essential lack of the operating Russian criminal law is discrepancy of terminology of item 272 «Wrongful access to the computer information» UK the Russian Federation to a modern condition of a science and technics which is caused by variety of the reasons.

Fair N.F.Kuznetsovoj's point of view that in criminal law legal mezhdistsiplinarnost and metasistemnost thereupon sees, i.e. Interaction with other branches of a science, are developed insufficiently [80]. We consider maintenance of harmonisation of terminology UK the Russian Federation and positions of various sciences by the important direction of perfection of the Russian criminal law.

Let's concentrate on the several most important, in our opinion, problems of such discrepancy.

1. In item 272 UK the Russian Federation is established responsibility for access wrongful only to the computer information protected by the law though, besides computer systems, the same information on structure is and in telecommunication systems in which number of system of telecommunication, systems of a radio communication and broadcasting, system radio relay and a satellite communication, system of a mobile communication, system of wireless access. In our opinion, along with already named in item 272 UK the Russian Federation objects in which is and circulates the information, it is expedient to specify their new kinds, namely information-telecommunication devices, their systems and networks. Thereby we improve the law and we refuse rather disputable practice
References of telecommunication devices, their systems and networks to computers, computer systems and their networks. We suggest to use the given expression in the future.

A.I.Maljarov as a whole truly defines directions of perfection of item 272 UK the Russian Federation, suggesting to specify, that the information is also in information systems or ITKS [81], however the terms offered it possess certain discrepancy. For example, behind frameworks named systems or networks are such objects, as actually telecommunication devices, in which number user's stations of a mobile communication, equipment of switching of communication and other devices, and also systems and networks wire, optical and radio communications.

2. In item 272 UK the Russian Federation the legislator earlier, till December, 2011, named one of objects of a finding of the information the machine carrier. It is thought, that data carriers can concern machine carriers in the form of cars, mechanisms and various units. When the legislator entered the term «the machine carrier» it, apparently, meant by it an element of storage of the information, being a computer part. However telekommuyonikatsionnye systems inherently are not cars., except computers, carriers of the digital information various flesh-memories, demountable hard disks, compact discs etc. are modern., which, in our opinion, do not fall under a category of machine carriers as are not a part of this or that car.

In connection with stated we support the point of view of the legislator about a term exception «the machine carrier» from a disposition of item 272 UK the Russian Federation.

Also it is necessary to specify, that the legislator has not considered other devices in which the digital information too can circulate. So, in item 272 UK the Russian Federation is not considered sphere of the reference of the digital information, namely modern information-telecommunication devices and systems,
Such as: various systems of a mobile communication, cellular telephones and smart phones etc.

Using the formulation which has settled in circulation at experts, it is offered to enter the generalised concept of devices, systems and networks in which the digital information also addresses, and to define them on set as information-telecommunication devices, systems and their networks.

In our opinion, in the operating criminal legislation of the Russian Federation it is insufficiently given attention of criminally-legal responsibility for interception of the digital information which as we consider, demands more attentive studying [82].

It is necessary to notice, that along with prompt development of wireless systems of the reference of the digital information manufacture and distribution STS NPI, radio monitoring and radio interception has increased. Thus probability of capture of malefactors it is insignificant it is small in view of absence of material traces of committing a crime.

It is considered to be, that the basic way of fulfilment of illegal act in sphere of the computer information is NDKI.

The concept «wrongful access», used in a disposition of item 272 UK the Russian Federation, does not settle all circle of ways of encroachments on the information which is on objects of the reference of the information. Besides, in connection with increase in sphere of the reference of the digital information there are also new ways of fulfilment of the acts encroaching on the digital information, circulating, for example, in such telecommunication networks, as mobile communication networks, networks of a satellite communication and wireless access. A criminal trespass principal view on the digital information in such ITKS is the interception of the digital information made by means of STS. Thus the digital information will be transformed to electromagnetic radiations for transfer to space which is a basis of all wireless

Data transmission systems.

As F.S.Vorojsky's wrongful access understands access to information or computing resources of system of the persons who do not have rights of use by them [83].

The basic difference of interception from not authorised access (further - NSD), according to the competitor, consists that the digital information circulating in space is subject to electromagnetic interception, and wrongful access demands infringement of system of protection of the information of the information-telecommunication device.

As subject of the given crime the digital information protected by the law on the state secret, a trade secret etc. can act.

As is known, there is set VKP, wireless systems specially developed for breaking and accessible in ITKS "Internet". Work of such programs is based on interception of network packages, their analysis for reception of the password of access with the subsequent decoding of the intercepted files.

In wireless systems of the reference of the digital information one of the basic socially dangerous ways of occupancy by the digital information is information interception, since. Unlike wire systems of an information transfer which can be attacked only from ITKS "Internet", wireless systems are accessible to illegal acts from malefactors in view of specificity of distribution of the information in prostranyostve.

It is necessary to notice, that in systems of satellite, mobile and other wireless communication in which as object of criminal trespasses the digital information acts, the information is transferred by means of electromagnetic signals, and irrespective of the nature of its transfer. So, as electromagnetic signals for transfer on wireless communication channels basically radio signals are used.

On a way of fulfilment interception of the digital information in space is impossible without application STS NPI which reference is limited.

Huge, for the malefactor, advantage of getting of the information by means of interception that such act does not reserve traces is represented and consequently is exclusively highly latent.

For fulfilment of interception of the digital information radiated in space, malefactors usually make following actions:

- Scanning of an attacked network of a wireless communication about the search radiated in space of a necessary electromagnetic signal (the digital information);

- Interception of the digital information in space and its record;

-Decoding (by means of the special software)

The intercepted digital information with its subsequent representation in the form accessible to understanding.

One of kinds of interception of the information is the electromagnetic interception which is carried out in premises in which are informatsionnoyotelekommunikatsionnye devices. He allows without direct contact to such devices of the reference of the digital information to intercept the electromagnetic radiation arising at functioning of such devices. For example, the monitor screen radiates the electromagnetic waves bearing in certain information in surrounding space. Malefactors, intercepting the equipment electromagnetic waves, transfer them to the computer which displays the image identical arising on monitor of the "intercepted" computer.

It is necessary to notice, that interception of the digital information is possible and in the course of the radio control over radiations of radio-electronic means. According to Federal act item 25 «About communication» [84], in the course of the radio control for studying of parametres of radiations of radio-electronic means
And (or) high-frequency devices, and also for acknowledgement of infringement of the established rules of use of a radio-frequency spectrum record of signals of controllable sources of radiations can be spent. Such record can serve only as the proof of infringement of an order of use of a radio-frequency spectrum. Use of this record in other purposes is not supposed, and persons guilty of such use bear established by the legislation of the Russian Federation a liability of infringement of inviolability of a private life, personal, family, medical, commercial and other secret protected by the law.

Information interception is possible and in the most widespread system of a wireless communication-mobile. So, at hacker conference Chaos Communication Congress the project has been presented, allowing to carry out listening of any mobile phone. Experts on information safety of systems of a mobile communication have published instructions on breaking of algorithm of enciphering of a mobile communication and creation of the device, capable to intercept the traffic from a mobile phone. Kriptografam it was possible to crack a confidential code which is used for prevention of interception of radio signals between the final device and base station of the operator. The code is used for prevention of interception of calls by frequent change of radio frequencies in a spectrum of 80 channels. Without knowledge of exact sequence of switchings there is a possibility to intercept only some fragments of conversation [85].

Thus, the social danger of wrongful access to the digital information is commensurable with danger of the act made by interception of the digital information in space. Considering, that item 272 UK the Russian Federation does not include instructions on such wrongful act as interception of the digital information, and in connection with vysheskazannymi blanks is offered to establish responsibility for interception protected by the law the digital

Information and to bring respective alterations in item 272 UK the Russian Federation.

In the note 3 to item 272 UK the Russian Federation «interception of the digital information» in the following edition suggested to make concept definition:

«Interception of the digital information is understood as process of its wrongful reception with use of the special mean intended for detection, reception and processing of electromagnetic radiation in space».

As to questions on criminalisation of illegal acquaintance with the digital information protected by the law in a circle of researchers of the given problem there are various opinions.

Obligatory sign of the objective party of the crime provided by item 272 UK the Russian Federation, consequences in the form of destruction, blockings, updatings or information copyings are.

It means, that, despite the fact that what access can be wrongful but if it has not entailed listed in item 272 UK the Russian Federation of consequences, such access to the computer information cannot be considered as a crime.

In our opinion, ch. 1 item 272 UK the Russian Federation does not regulate a situation at which owing to wrongful access to the digital information there is acquaintance with it that excludes responsibility for a huge layer of possible criminal trespasses.

Thus, it is not punishable in criminally-legal order act in which result the Russian Federations specified in item 272 UK consequences do not come, and the digital information becomes known to the third party, in the course of reading of the information from the computer screen. Meanwhile such act is capable to cause a property damage or other harm to its owner.

It is necessary to notice, that in the list of the acts which have entailed wrongful access, act in the form of acquaintance does not enter.

Offers on introduction of an additional consequence in item 272 UK the Russian Federation in the form of acquaintance with the information were investigated by two scientists: V.N.ShChepetilnikovym and S.A.Jashkovym.

V.N.ShChepetilnikov has fairly specified, that NDKI includes acquaintance with it [86].

In turn, S.A.Jashkov considers necessary to include in UK the Russian Federation the act which has entailed full or partial acquaintance with the computer information [87].

It is represented to us inexpedient to include in UK the Russian Federation the specified independent corpus delicti and, especially, to divide consequences of wrongful access in the form of acquaintance on full or partial, since. Already partial acquaintance with the information is a consequence of wrongful access.

CH. 1 item 272 UK the Russian Federation does not regulate a situation at which owing to wrongful access to the digital information there is acquaintance with it that excludes responsibility for a huge layer of possible criminal trespasses. Meanwhile the guilty can simply read stored in memory of the computer the information, and then to use the received knowledge in the purposes. The specified act also deserves, in our opinion, the criminal liability.

Considering, that ch. 1 item 272 UK the Russian Federation does not contain instructions for such way of a crime as acquaintance with the digital information, in connection with the aforesaid it suggested to add the given norm with a word "acquaintance".

Essential lack of item 272 UK the Russian Federation is discrepancy of its terms framework to a modern condition of scientific and technical progress. In this connection there is a question on the decision of the given blank by perfection and modernisation of corresponding norm.

For this purpose it is necessary to address to the organic law regulating the relations in sphere of the information. Item 15 of the Federal act from July, 27th, 2006 № 149-FZ «About the information, information technologies and about protection
Information »[88] speaks about use ITKS. It is thought given slovosoyochetanie most of all approaches for definition of sphere of the reference of the digital information, since. It really corresponds to a modern condition of the reference of the digital information in ITKS where enter both computer networks, and other communication networks.

N.N.Kunjaev suggests to use in rules of law wider concept - «information-communication technologies» which is base with reference to information sphere. He considers, that «informayotsionno-communication technologies» are means, ways, methods, the mechanisms applied to creation, gathering, fixing, transfer, distribution, blocking, processing, copying, updating, use, protection, storage and destruction of the information [89]. We support the given position obviously corresponding to modern development of information technologies.

In the conditions of formation of a global information society huge value is given to a problem of maintenance of safety of the information, in particular, to questions of counteraction to criminal trespasses in sphere of its reference. General information of a society has aggravated the specified problem, and there was an absolute must of working out of a corresponding state policy. Last fifteen years in the Russian Federation have appeared and new kinds of systems of the reference of the information, in which number of system of a mobile communication, a satellite communication, digital wire communication, and also various systems of a personal wireless communication are successfully mastered. It testifies to necessity of the constant account for the text of the criminal law of the latest achievements of science and technology: standard regulation should not lag behind vital realities.

Major factor of special attention from malefactors to the information circulating in such systems is it konfidentsialyonost. Criminals try to take hold of the information which represents for them value, not having on that of the legitimate right.

It is traditionally considered to be, that the basic crime, preduyosmotrennym gl. 28 UK the Russian Federation, is a crime, responsibility for which comes under item 272 UK the Russian Federation. It proves to be true also statistical data. So, in 2010 it has been registered such 6 309 acts from all 7 398 penal computer offences, i.e. More than 85 %9 θ.

Though the legislator has made an attempt to improve a situation with computer criminality in Russia, having accepted the Federal act from December, 7th, 2011 № 420-FZ «About modification of the Criminal code of the Russian Federation and separate acts of the Russian Federation» [90 [91], the detailed analysis of the maintenance of item 272 UK the Russian Federation in a new wording shows presence at least several uneasy questions without which decision it is difficult to speak about the effective criminal policy in this considered sphere and which further we will try to disassemble and analyse [92].

From the analysis ch. 1 item 272 UK the Russian Federation in edition of the Federal act from December, 7th, 2011 № 420-FZ follows, that the crime is considered ended when NDKI has entailed destruction, blocking, updating or copying of the computer information.

In comparison with former edition of article consequences of a crime such obligatory and alternative simultaneously, as infringement of work of the COMPUTER, systems of the COMPUTER or their network that is represented to us disputable are excluded. Results of wrongful access not only can cause, for example,
Time failures in work of all information system of the organisation but also to paralyse it for long time. Approach of similar consequences testifies to the social danger of act which, in our opinion, deserves the criminal liability. Therefore in number of the alternative consequences provided ch. 1 item 272 UK the Russian Federation, it is necessary to include «infringement of work of information-telecommunication devices, their systems and networks». The specified subjects have more generalised and exact maintenance, than old «the COMPUTER, systems of the COMPUTER or their network».

In ch. 2 items 272 UK the Russian Federation in edition of the Federal act from December, 7th, 2011 № 420-FZ have appeared such new qualifying signs, as causing by act of a large damage or its fulfilment from mercenary interest. And the legislator has defined, that a large damage the damage which sum exceeds one million roubles admits. Sees, that, entering such signs, the legislator goes on a way of differentiation of the criminal liability. At the same time the establishment of such considerable size of responsibility is unjustified. Probably, specified sign followed make estimated.

Besides, we suggest to use additional qualifying signs, such as fulfilment of act from hooligan promptings, with use STS, the systems of protection of the digital information intended for infringement as it is written in operating edition of item 273 UK the Russian Federation. Such signs are represented to us true and corresponding to reality.

In ch. 4 items 272 UK the Russian Federation is established responsibility for the acts provided by the previous parts of this article if they have entailed heavy consequences or have created threat of their approach.

The decision of the legislator on introduction of the named especially qualifying signs sees correct.

Search of a mention of the name of item 272 UK the Russian Federation in texts of materials of the published judiciary practice of vessels of the general jurisdiction of the Russian Federation, placed in open access on sites GAS the Russian Federation "Justice"
And Union of Right Forces "РосПравосудие", has allowed to analyse judiciary practice on the specified category of affairs and to show structure of the given crime [93].

Among the crimes provided by item 272 UK the Russian Federation, the greatest part (85 %) constitute the crimes expressed in theft of logins and passwords for reception of free services in access to a network "Internet", to mail boxes of users, and also other financial enrichment. The remained 15 % fall to other kinds of wrongful access to the computer information.

So, the Trusovsky regional court of of Astrakhan pronounces a sentence on charge gr. SH in the committing a crime, provided ch. 1 items 272 UK the Russian Federation. The court has established, that gr. SH made NDKI for the purpose of reception of free services in access to a network "Internet".

So, gr. SH, through a server of the provider, by the above-stated connections and entering of accounting records by means of the password and a login belonging gr. M, it was wrongfully connected to a server of the provider for an exit in ITKS "Internet" and to the information stored in the specified network [94].

As the social danger of wrongful access is close to the digital information inherently and the social danger to interception of the digital information in space and in connection with absence in UK the Russian Federation the norm providing responsibility for interception of the digital information, it is offered to include a mention of the given act in item 272 name

UK the Russian Federation and in a disposition ch. 1 items 272 UK the Russian Federation, having stated it in the following author's edition:

«Article 272. Wrongful access to the digital information protected by the law or its interception

1. Wrongful access to the digital information protected by the law, and its equally illegal interception if this act has entailed destruction, blocking, updating, copying of the digital information or acquaintance with it, infringement of work of information-telecommunication devices, their systems and networks, -

It is punished... (Further under text UK the Russian Federation) ».

In the note 3 to item 272 UK the Russian Federation «interception of the digital information» in the following edition suggested to make concept definition:

«Interception of the digital information is understood as process of its wrongful reception with use of the special mean intended for detection, reception and processing of electromagnetic radiation in space».

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A source: Begishev Ildar Rustamovich. CONCEPT And KINDS of CRIMES Of SPHERE of the REFERENCE of the DIGITAL INFORMATION. The dissertation on competition of a scientific degree of the master of laws. Kazan -. 2017

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