Legal aspects of the actions of the owners of laptops in case of their theft
This article continues the topic raised in the story about the Prey service , created to spy on the location of a computer or phone in case it is stolen. At the very end of this article, the author wondered: would not the use of such programs have any negative consequences for the user himself? Let's try to answer.
So, imagine a situation: you installed a spy program on your computer, and after a while you discovered the absence of a computer. After some time, the program gave you a message - in the form of a photo, an SMS with the coordinates of the device, or some other useful information. Is it possible, using this information, to somehow break the law and suffer for it? For example, if a computer is programmed to photograph the environment using a webcam, information constituting someone’s privacy can be captured. The same applies to the rest of the information. And the law “On Personal Data”, meaningless and merciless, has already ordered God to attach to this situation. Although it is not applicable here. If the information necessary for its identification was announced by the new owner himself , then there can be no questions. And if the owner of the former " merge " the collected data on the Internet? And if the number of these data includes photographs of a completely stranger girl, and even naked? The girl is to blame? Such surveillance can violate a number of laws at once - from Article 150 of the Civil Code, which protects such intangible benefits as “privacy,” and to the Criminal Code . And then there is the Administrative Code, in the fifth and thirteenth chapters of which also provides for responsibility for a number of "informational" offenses. Therefore, the question of under what conditions you can be held accountable, and under what conditions you can avoid it, should be considered together, analyzing different codes.
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Installing such software on your computer, it is worth remembering the rule "not caught - not a thief." Because the new owner of your computer, if it is found, will of course turn out to be a “bona fide purchaser” who bought it “from an unidentified result of a person”. You can yourself evaluate the chances that this is true, and the IQ value of a person who buys expensive equipment from unfamiliar people. This is not part of the consideration of our article; we simply state: the chances of suffering from the “bona fide purchaser” himself, although small, are there. We have a presumption of innocence acts on the crooks.
First of all, you must clarify to yourself the basic rule of bringing to any responsibility: in general, punishment is possible only if there is guilt. The word is familiar to everyone, and is understandable on an intuitive level. The fault in jurisprudence is the attitude of the person to their actions. It can be in the form of intent - when this person wants the onset of harmful effects, or in the form of negligence - when these consequences occur regardless of his will, although they could have been foreseen. The concept of guilt is provided for in civil, administrative, and criminal law. In civil law there are exceptions, when one can be held accountable without guilt. Such cases include, for example, causing harm to the so-called source of increased danger , that is, any activity that creates an increased danger to others. The owner of such a “source” in the event of harm to others, will compensate for the damage, even if his fault is not in it.
The most common of these cases is the harm caused by road accidents: the car is just considered such a source. In this case, the driver must compensate the damage if he does not prove that the damage was caused by force majeure or the intent of the victim. But at the same time, he may be innocent of this incident from the point of view of the Criminal Code or the Administrative Code. Therefore, compensation for damage caused in an accident - this is not a confession of guilt , as many believe.
If we take a look at the situation with “tracking” programs and try to find out where the computer owner is guilty, it will be very difficult to do this. In fact: he just installed and configured a program that captures the situation at certain points in time. What will be fixed in these moments, and whether this information is confidential - the device owner does not know and cannot know. Using the terminology of the Criminal Code, we can say that the actions of the computer owner are the so-called “ innocent harm ”: “ The act is deemed perfect innocent if the person who committed it did not realize it and because of the circumstances actions (inaction) either did not foresee the possibility of the onset of socially dangerous consequences and, according to the circumstances of the case, should not or could not have foreseen them. "
In general, the forms of guilt are described in the Criminal Code in the most detail, it even divides intent and negligence into two more subspecies. Intention can be direct , when a person is aware of the danger of his actions and wants the onset of harmful effects, and also indirectly , when he does not want the onset of consequences, but permits or treats them indifferently. Negligence is also divided into frivolity — when a person foresees the possibility of adverse effects, but hopes to prevent them, and negligence — when he does not foresee the consequences, although he may foresee them. And if we continue to look at the situation through the prism of the Criminal Code, we will see that our innocent infliction may well turn into indirect intent - if we continue to collect information even after we received it enough to locate the computer. There are already starting to evaluate "by eye", so you can make a mistake. But to spread information, which may be someone's secret, on the Internet, of course, is not worth it anyway.
Now we need to learn two more basic concepts related to the self-defense of our rights - the necessary defense and urgency . They relate to those situations where self-defense of their rights is already beyond the boundary separating normal behavior from the offense. But even then responsibility can be avoided. The concept of necessary defense is connected with the independent suppression of an offense, which is carried out not by the authorities, but by the citizen himself. It is provided for in the Criminal and Civil Codes. The relevant article of the Criminal Code excludes such actions from the number of crimes:
"one. It is not a crime to harm an encroaching person in a state of necessary defense, that is, while protecting an individual and the rights of a defender or other persons protected by law, the interests of society or the state from socially dangerous encroachment, if this encroachment was associated with violence of another person or defender , or with the direct threat of such violence.
2. Protection against encroachment that does not involve violence, dangerous to the life of a defender or another person, or the immediate threat of such violence, is legitimate, if it does not allow exceeding the limits of necessary defense, that is, deliberate actions that are clearly not in accordance with the nature and the dangers of encroachment. "
Since our hypothetical situation is not connected with violent actions, the question will inevitably arise whether there were “no exceeding the limits of necessary defense”, that is, whether the measures taken to repel the assault corresponded to the danger of the assault itself. And here all sorts of “hypothetical situations” end: you can only answer the question about the presence or absence of excess by examining each specific case. This should take into account the fact that your computer also has information constituting a personal secret, so that the "defense" is at least equivalent to an encroachment. In addition, if we are talking about damages, the article of the Civil Code on the so-called “ self-defense of civil rights ” can also be applied. Such self-defense is also similar to the necessary defense , the law also requires proportionality to its violation. The norms of the Civil Code on the necessary defense also excludes compensation for the harm caused only when it is not exceeded. But there is no such article in the Administrative Code, which is understandable: the danger of administrative offenses is relatively small, and if you allow citizens to stop them, then the harm from this may be greater than good.
Finally, there is another reason for disengagement - the so-called emergency . It is provided in all three codes. Article 1067 of the Civil Code provides for compensation for harm caused in a state of extreme necessity, “that is, to eliminate the danger threatening the injured person himself or others, if this danger could not be eliminated under these circumstances by other means.” But the Administrative Code and the Criminal Code in this case do not recognize actions committed in a state of extreme necessity, neither an offense, nor a crime. As an example - the wording of article 39 of the Criminal Code:
"It is not a crime to harm the interests protected by criminal law in a state of extreme necessity, that is, to eliminate the danger directly threatening the person and the rights of the person or other persons, the interests of the society or the state protected by law, if this danger could not be eliminated by other means and this was not allowed to exceed the limits of extreme necessity. "
The corresponding article of the Administrative Code does not speak about exceeding the limits , but about the harm caused, which should not exceed the averted. That is, if you acted in a state of “extreme necessity”, you will not be attracted to criminal or administrative responsibility, but will be forced to compensate for material damage. This rule is very similar to the cases of unjustified responsibility provided for by the Civil Code, with the only difference that the court may “exempt” the person who caused the harm “from necessity”, or force him to pay in whose interests the person who caused the harm.
And finally, a purely criminal article , the equivalents of which are not found in other codes: “It is not a crime to cause harm to a person who committed a crime, when he is detained to be delivered to the authorities and to stop the possibility of committing new crimes, if other people did not detain possible measures were not allowed. ”Although, in the case of“ spyware ”programs, collecting information by itself is not a“ detention ”, but since it is done for aderzhaniya, then this article is in this case can be applied. Of course, our “bona fide purchaser” has every reason not to suspect that he bought the stolen equipment. But we, too, have every reason to believe that it was he who stole our computer. What are the chances that this is exactly how it was - is also outside the scope of this article. Evaluate them yourself.
So, imagine a situation: you installed a spy program on your computer, and after a while you discovered the absence of a computer. After some time, the program gave you a message - in the form of a photo, an SMS with the coordinates of the device, or some other useful information. Is it possible, using this information, to somehow break the law and suffer for it? For example, if a computer is programmed to photograph the environment using a webcam, information constituting someone’s privacy can be captured. The same applies to the rest of the information. And the law “On Personal Data”, meaningless and merciless, has already ordered God to attach to this situation. Although it is not applicable here. If the information necessary for its identification was announced by the new owner himself , then there can be no questions. And if the owner of the former " merge " the collected data on the Internet? And if the number of these data includes photographs of a completely stranger girl, and even naked? The girl is to blame? Such surveillance can violate a number of laws at once - from Article 150 of the Civil Code, which protects such intangible benefits as “privacy,” and to the Criminal Code . And then there is the Administrative Code, in the fifth and thirteenth chapters of which also provides for responsibility for a number of "informational" offenses. Therefore, the question of under what conditions you can be held accountable, and under what conditions you can avoid it, should be considered together, analyzing different codes.
Guilt and innocence
')
Installing such software on your computer, it is worth remembering the rule "not caught - not a thief." Because the new owner of your computer, if it is found, will of course turn out to be a “bona fide purchaser” who bought it “from an unidentified result of a person”. You can yourself evaluate the chances that this is true, and the IQ value of a person who buys expensive equipment from unfamiliar people. This is not part of the consideration of our article; we simply state: the chances of suffering from the “bona fide purchaser” himself, although small, are there. We have a presumption of innocence acts on the crooks.
First of all, you must clarify to yourself the basic rule of bringing to any responsibility: in general, punishment is possible only if there is guilt. The word is familiar to everyone, and is understandable on an intuitive level. The fault in jurisprudence is the attitude of the person to their actions. It can be in the form of intent - when this person wants the onset of harmful effects, or in the form of negligence - when these consequences occur regardless of his will, although they could have been foreseen. The concept of guilt is provided for in civil, administrative, and criminal law. In civil law there are exceptions, when one can be held accountable without guilt. Such cases include, for example, causing harm to the so-called source of increased danger , that is, any activity that creates an increased danger to others. The owner of such a “source” in the event of harm to others, will compensate for the damage, even if his fault is not in it.
The most common of these cases is the harm caused by road accidents: the car is just considered such a source. In this case, the driver must compensate the damage if he does not prove that the damage was caused by force majeure or the intent of the victim. But at the same time, he may be innocent of this incident from the point of view of the Criminal Code or the Administrative Code. Therefore, compensation for damage caused in an accident - this is not a confession of guilt , as many believe.
If we take a look at the situation with “tracking” programs and try to find out where the computer owner is guilty, it will be very difficult to do this. In fact: he just installed and configured a program that captures the situation at certain points in time. What will be fixed in these moments, and whether this information is confidential - the device owner does not know and cannot know. Using the terminology of the Criminal Code, we can say that the actions of the computer owner are the so-called “ innocent harm ”: “ The act is deemed perfect innocent if the person who committed it did not realize it and because of the circumstances actions (inaction) either did not foresee the possibility of the onset of socially dangerous consequences and, according to the circumstances of the case, should not or could not have foreseen them. "
In general, the forms of guilt are described in the Criminal Code in the most detail, it even divides intent and negligence into two more subspecies. Intention can be direct , when a person is aware of the danger of his actions and wants the onset of harmful effects, and also indirectly , when he does not want the onset of consequences, but permits or treats them indifferently. Negligence is also divided into frivolity — when a person foresees the possibility of adverse effects, but hopes to prevent them, and negligence — when he does not foresee the consequences, although he may foresee them. And if we continue to look at the situation through the prism of the Criminal Code, we will see that our innocent infliction may well turn into indirect intent - if we continue to collect information even after we received it enough to locate the computer. There are already starting to evaluate "by eye", so you can make a mistake. But to spread information, which may be someone's secret, on the Internet, of course, is not worth it anyway.
Self defense rights
Now we need to learn two more basic concepts related to the self-defense of our rights - the necessary defense and urgency . They relate to those situations where self-defense of their rights is already beyond the boundary separating normal behavior from the offense. But even then responsibility can be avoided. The concept of necessary defense is connected with the independent suppression of an offense, which is carried out not by the authorities, but by the citizen himself. It is provided for in the Criminal and Civil Codes. The relevant article of the Criminal Code excludes such actions from the number of crimes:
"one. It is not a crime to harm an encroaching person in a state of necessary defense, that is, while protecting an individual and the rights of a defender or other persons protected by law, the interests of society or the state from socially dangerous encroachment, if this encroachment was associated with violence of another person or defender , or with the direct threat of such violence.
2. Protection against encroachment that does not involve violence, dangerous to the life of a defender or another person, or the immediate threat of such violence, is legitimate, if it does not allow exceeding the limits of necessary defense, that is, deliberate actions that are clearly not in accordance with the nature and the dangers of encroachment. "
Since our hypothetical situation is not connected with violent actions, the question will inevitably arise whether there were “no exceeding the limits of necessary defense”, that is, whether the measures taken to repel the assault corresponded to the danger of the assault itself. And here all sorts of “hypothetical situations” end: you can only answer the question about the presence or absence of excess by examining each specific case. This should take into account the fact that your computer also has information constituting a personal secret, so that the "defense" is at least equivalent to an encroachment. In addition, if we are talking about damages, the article of the Civil Code on the so-called “ self-defense of civil rights ” can also be applied. Such self-defense is also similar to the necessary defense , the law also requires proportionality to its violation. The norms of the Civil Code on the necessary defense also excludes compensation for the harm caused only when it is not exceeded. But there is no such article in the Administrative Code, which is understandable: the danger of administrative offenses is relatively small, and if you allow citizens to stop them, then the harm from this may be greater than good.
Finally, there is another reason for disengagement - the so-called emergency . It is provided in all three codes. Article 1067 of the Civil Code provides for compensation for harm caused in a state of extreme necessity, “that is, to eliminate the danger threatening the injured person himself or others, if this danger could not be eliminated under these circumstances by other means.” But the Administrative Code and the Criminal Code in this case do not recognize actions committed in a state of extreme necessity, neither an offense, nor a crime. As an example - the wording of article 39 of the Criminal Code:
"It is not a crime to harm the interests protected by criminal law in a state of extreme necessity, that is, to eliminate the danger directly threatening the person and the rights of the person or other persons, the interests of the society or the state protected by law, if this danger could not be eliminated by other means and this was not allowed to exceed the limits of extreme necessity. "
The corresponding article of the Administrative Code does not speak about exceeding the limits , but about the harm caused, which should not exceed the averted. That is, if you acted in a state of “extreme necessity”, you will not be attracted to criminal or administrative responsibility, but will be forced to compensate for material damage. This rule is very similar to the cases of unjustified responsibility provided for by the Civil Code, with the only difference that the court may “exempt” the person who caused the harm “from necessity”, or force him to pay in whose interests the person who caused the harm.
And finally, a purely criminal article , the equivalents of which are not found in other codes: “It is not a crime to cause harm to a person who committed a crime, when he is detained to be delivered to the authorities and to stop the possibility of committing new crimes, if other people did not detain possible measures were not allowed. ”Although, in the case of“ spyware ”programs, collecting information by itself is not a“ detention ”, but since it is done for aderzhaniya, then this article is in this case can be applied. Of course, our “bona fide purchaser” has every reason not to suspect that he bought the stolen equipment. But we, too, have every reason to believe that it was he who stole our computer. What are the chances that this is exactly how it was - is also outside the scope of this article. Evaluate them yourself.
Source: https://habr.com/ru/post/127241/
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