Re: Legal aspects of the actions of the owners of laptops in case of their theft
On August 29, an article appeared from Mrs. Glazkova on the topic “Legal aspects of the actions of laptop owners in the event of their theft”. For comments on this article, I turned to S.P. Kubantsev, Candidate of Laws, Professor of the Department of Criminal Law, Process and Criminalistics of the ATiSO, Senior Researcher of the Department of Criminal Legislation and the Judicial System of Foreign States of the Institute of Law and Law of the Russian Federation
Under the cut quote his opinion on this article.
The person who wrote this article, apparently, did not go deep into the legal aspects of this topic. Starting even from the allegation that the Federal Law "On Personal Data" in this case is not applicable due to the voluntary dissemination of data by the person to whom such data relates. At least a strange statement, given the fact that the said person had no idea that his personal data were being "taken to the side." The statement about the extreme difficulty of determining the degree of guilt of the owner of the computer, who “only installed and configured a program that records the situation at certain points in time” is just a trick. With the same success, it can be argued that the person only struck the other on the head with the mount, and the consequences of such an action did not depend on the striker.
In general, the fact of theft still needs to be proved, because the situation when a computer with spyware software installed on it is specifically transferred to a certain person / organization, in order to obtain confidential information, after receiving which the true owner of the computer, is quite real. declare theft.
')
In the section “Guilt and guilt” we are talking about a completely different subject - accidents, sources of heightened danger and all that. There is nothing about the real attitude of a person installing such software on his computer. In fact, obtaining confidential information in a similar way (through an allegedly stolen computer), subject to the illegal distribution of this information, i.e. without the consent of the person to whom such information relates, would be classified as a crime, the penalty for which is provided for in various articles of the Criminal Code - 137, 138, 155, 183, etc., respectively, with compensation for material and moral harm in accordance with the Civil Code.
The indication in the article on the necessary defense seems completely unfounded. For crimes such as theft and fraud do not involve the violence necessary for the response to qualify as a necessary defense from the point of view of the Criminal Code. The use of a stolen item also does not imply the use of violence. Accordingly, in the absence of the conditions necessary for qualifying an act as a necessary defense, there can be no exceeding the limits.
Further, it is a question of such a legal institute as “extreme necessity”. A classic example of extreme necessity would be to leave a truck driver carrying a perishable cargo to help people in distress who threaten their lives (earthquake, flood, hurricane, etc.), which resulted in the cargo becoming unusable. Here, the author takes the liberty to assert the existence of extreme necessity, justifying this by reference to the article of the law. But does such an arbitrary interpretation of the rule of law by the author correlate with the real content of this legal rule? Of course not! The key phrase of art. 39 of the Criminal Code: "if this danger could not be eliminated by other means." If someone does not know, it can be explained that law enforcement agencies are engaged in the fight against crimes, as well as their prevention. Therefore, in case of detection of evidence of a crime, the person is obliged to report this to the police, and not to take independent actions to punish the perpetrators by obtaining and even disseminating personal data affecting personal, commercial and other types of secrets protected by law. Independent fight against crimes, so-called. "Robingism" is punishable!
An innocent harm done by a person who deliberately installed spyware, obtained data through the use of such software, and then also used this data for his own purposes (getting his property, possibly stolen, but may also be voluntarily transferred to another person), do not even want to discuss . I will give only an example: coercion aimed at returning funds previously provided for under a loan agreement (in debt) will qualify as extortion, with all the ensuing consequences.
The situation is similar with a “purely criminal article” (Article 38 of the Criminal Code, “causing harm when detaining a person who committed a crime”). There can be no talk of any detention at the crime scene. Moreover, the author himself says that the user of the “stolen” computer will most likely be a bona fide purchaser of this thing.
Thus, this article is not based on Russian legislation, representing a typical philistine interpretation of legal norms, when complex legal constructions are attempting to be reduced to primitive perception. As a result of such insinuations, readers are misled about the legal consequences of particular acts. Following the advice of the author of this article, people may be in the dock.
Under the cut quote his opinion on this article.
The person who wrote this article, apparently, did not go deep into the legal aspects of this topic. Starting even from the allegation that the Federal Law "On Personal Data" in this case is not applicable due to the voluntary dissemination of data by the person to whom such data relates. At least a strange statement, given the fact that the said person had no idea that his personal data were being "taken to the side." The statement about the extreme difficulty of determining the degree of guilt of the owner of the computer, who “only installed and configured a program that records the situation at certain points in time” is just a trick. With the same success, it can be argued that the person only struck the other on the head with the mount, and the consequences of such an action did not depend on the striker.
In general, the fact of theft still needs to be proved, because the situation when a computer with spyware software installed on it is specifically transferred to a certain person / organization, in order to obtain confidential information, after receiving which the true owner of the computer, is quite real. declare theft.
')
In the section “Guilt and guilt” we are talking about a completely different subject - accidents, sources of heightened danger and all that. There is nothing about the real attitude of a person installing such software on his computer. In fact, obtaining confidential information in a similar way (through an allegedly stolen computer), subject to the illegal distribution of this information, i.e. without the consent of the person to whom such information relates, would be classified as a crime, the penalty for which is provided for in various articles of the Criminal Code - 137, 138, 155, 183, etc., respectively, with compensation for material and moral harm in accordance with the Civil Code.
The indication in the article on the necessary defense seems completely unfounded. For crimes such as theft and fraud do not involve the violence necessary for the response to qualify as a necessary defense from the point of view of the Criminal Code. The use of a stolen item also does not imply the use of violence. Accordingly, in the absence of the conditions necessary for qualifying an act as a necessary defense, there can be no exceeding the limits.
Further, it is a question of such a legal institute as “extreme necessity”. A classic example of extreme necessity would be to leave a truck driver carrying a perishable cargo to help people in distress who threaten their lives (earthquake, flood, hurricane, etc.), which resulted in the cargo becoming unusable. Here, the author takes the liberty to assert the existence of extreme necessity, justifying this by reference to the article of the law. But does such an arbitrary interpretation of the rule of law by the author correlate with the real content of this legal rule? Of course not! The key phrase of art. 39 of the Criminal Code: "if this danger could not be eliminated by other means." If someone does not know, it can be explained that law enforcement agencies are engaged in the fight against crimes, as well as their prevention. Therefore, in case of detection of evidence of a crime, the person is obliged to report this to the police, and not to take independent actions to punish the perpetrators by obtaining and even disseminating personal data affecting personal, commercial and other types of secrets protected by law. Independent fight against crimes, so-called. "Robingism" is punishable!
An innocent harm done by a person who deliberately installed spyware, obtained data through the use of such software, and then also used this data for his own purposes (getting his property, possibly stolen, but may also be voluntarily transferred to another person), do not even want to discuss . I will give only an example: coercion aimed at returning funds previously provided for under a loan agreement (in debt) will qualify as extortion, with all the ensuing consequences.
The situation is similar with a “purely criminal article” (Article 38 of the Criminal Code, “causing harm when detaining a person who committed a crime”). There can be no talk of any detention at the crime scene. Moreover, the author himself says that the user of the “stolen” computer will most likely be a bona fide purchaser of this thing.
Thus, this article is not based on Russian legislation, representing a typical philistine interpretation of legal norms, when complex legal constructions are attempting to be reduced to primitive perception. As a result of such insinuations, readers are misled about the legal consequences of particular acts. Following the advice of the author of this article, people may be in the dock.
Source: https://habr.com/ru/post/284618/
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