For the sale of cameras used as baby monitors, Muscovite faces 4 years in prison for an article on spy gadgets. What devices are considered spyware, understood DW.
Muscovite Denis Cabrera faces up to 4 years imprisonment for an article on spy gadgets. His “spy gadgets” are the two cameras that he bought for himself on AliExpress and used as a baby monitor for remote monitoring of their little baby. Later, Cabrera decided to sell the camera online, but instead buyers came to him by the FSB.
Now Dennis Cabrera, accused of illegal traffic of special technical means intended for secret obtaining of information (article 138.1 of the Criminal code). Minimum penalty – a fine (of up to 200 thousand rubles). A maximum of 4 years in prison. The next court hearing in the case of Cabrera to be held on 27 November 2019.
The criminal case of Denis Cabrera
Cabrera told DW that the law knew, but thought that its camera not within its ambit. “I thought that speech in the law of candid camera, which is not visible,” he explains, citing the example of the so-called Pinhole camera lens which are about the size of a puncture needle.
Camera the Cabrera looks like a light bulb – black lens with a diameter of 2-3 cm at the bottom of the white housing. When you turn on the camera, according to Dennis Cabrera, “speaks loudly” first in Chinese, then in English, and in video flashing red light.
“I’m the investigator is told, the FSB said, but they would not listen, said that the examination will decide everything” – he complains. However, in the forensic examination of all these details and did not specify. According to Cabrera, there is on the contrary argues that the lens is almost invisible.
These cameras, like Cabrera, and now openly sold on the Internet. In the product description, nowhere is it stated that they fall under the Criminal code (CC) of the Russian Federation. How, then, to understand that the device – spyware?
Who and what is judged by the article on spy gadgets
“It is not easy. As we can see the deal itself does not work, because on the boxes of these devices are not written, they are banned or spy of the FSB,” – said DW Sarkis Darbinyan, head of legal services Roskomsnab – public organization, which fights against Internet censorship.
The fact Cabrera is not the first in the Russian judicial practice. Over the last 3 years on this article there appeared before the court hundreds of people. In 2017 under article 138.1 condemned 254 people, in 2018 – 160, and for the first six months of 2019 – 39 (data of the Judicial Department under the Supreme Court of the Russian Federation). In most cases, the courts applied fines of up to 100 thousand rubles, but several defendants were sentenced to the “real time”, according to Roskomsvoboda.
In law the definition of “special technical means” are unclear. As a result, instead of spies “absurd criminal penalties” receive hundreds of ordinary citizens, said Darbinyan. “We see that the majority is ordinary users that spyware is difficult to call – they just buy cheap Chinese equipment for different purposes. Someone is watching the baby, some for cattle, some for the dog or a neighbor” – lists them.
The most resonant case under article 138.1 became a farmer Yevgenia Vasilyeva, who was on trial for using GPS to track cows. About the case to Russian President Vladimir Putin told reporters at a press conference in 2017. “I don’t even know that there is such an article. I will definitely look in relation to and articles in General, and those specific people you mentioned,” he promised Putin.
Home appliances fall under the criminal code?
His word, the President kept – in 2018, the farmer Vasiliev was closed, “because the investigation had not gathered evidence to support the intent for secret receipt of information”. In the summer of 2019, the state Duma adopted amendments to the law to clarify the definition of spy equipment.
Edits should help to distinguish spy gadgets from consumer devices – this is even before the adoption of these amendments, Prime Minister Dmitry Medvedev wrote in his Twitter.
So, in the notes to article 138.1 said covers devices intended for “secret information”, for example, for recording, wiretapping, interception of information from technical communication channels or emails. A specific list of devices, neither the law nor comments about it.
But in the notes to the act emphasizes that under its scope are not subject to “tools, household products, has the functions of audio, video, images and (or) the location, with openly spaced on the them authorities the same functions or elements of the display displaying modes of their use.”
In addition, the Deputy head of the FSB Alexander Kupryazhkin also previously explained in the state Duma that the phones or household appliances, such as pens with the function of video surveillance, does not fall under the law if you use them only for writing.
How to understand, what means – spyware and which aren’t?
As the cameras of Denys Cabrera at the time of entry bulbs lit up – and that means that there were elements of identification according to Sarkis Darbinian, theoretically the device should not fall under the act. Besides, the expert adds, to attract criminal liability under the article about the spy gadgets, you need evidence that people purchased this device for secret information.
Why, then, camera-baby monitor, the FSB considered a spy device? And how then to distinguish the device from spyware is not spyware? With these questions, the DW was applied to the FSB, as well as in the Ostankino district court where the case is heard Dennis Cabrera, but at the time of publication received no response.
In an interview with DW Gennady Esakov, head of Department of criminal law and criminology “Higher school of Economics” assures that if the agent is a household and not specifically altered, that criminal responsibility can not be. “If this camera is sold freely in the market, and he (Cabrera) was not altered, it is strange,” – said the expert.
The reason of interest of the FSB to the cameras Muscovite Cabrera, he sees that the man used them for other purposes. “The original functionality is not a monitor, but just the secret information. In this situation, it is not subject to the amendments to the law”, explains Esakov.
Why in the Criminal code article on spy gadgets
Why is Russia so strictly regulate the use of spy gadgets? In fact, besides the articles in the criminal code, there is also an article 20.23 of the Administrative code for violation of the rules of production, storage, sale and purchase of “special technical means”. According to it, the offender faces a fine from 2 to 2,5 thousand rubles with confiscation of the forbidden devices.
Isakov believes that when, in 2011, lawmakers introduced an article on spy gadgets to the criminal code of the Russian Federation, the aim was to prevent at an early stage of crimes from the privacy, treason or information constituting a state secret. “Another thing is that when the article was introduced, no one imagined that attached to the cow sensors we consider as part of the crime. Just practice so distorted,” explains Esakov.
By the way, in Germany a similar law is also available – § 90 of the Law on telecommunications (Telekommunikationsgesetz). However, the Federal Agency for networks (Bundesnetzagentur) first requires the owner of the destruction is prohibited by law the device, and only if he refuses to do so, he faces a fine up to 25 thousand euros.