Uncertified GPS tracker from China. Is it legal in Russia?
Foreign online stores are filled up with a variety of devices equipped with GPS, GSM-modules that allow you to track the location of the observed object and control the device via SMS and mobile applications. And, of course, most of them are not certified and are prohibited for import / use in Russia. A simple man in the street, having heard the words “uncertified” and “GPS” in one sentence, will say: “This is illegal under article 138.1 of the Criminal Code of the Russian Federation!”, And he will be right. Or maybe not. I tried to understand and consolidate all this in this article.
I am a cyclist and ride my two-wheeler all year round. In my small town of 250 thousand people is the perfect transport. In any point of the city on it can be reached in half an hour. It is dear to me, and so I decided to secure it (there were precedents!) By ordering a GPS tracker from a Chinese online store. It integrates into the steering column. And when activating the security mode, it can notify via SMS if the bike is moved and send GPS coordinates with a link to Google maps.
Suddenly, I find out that this may be illegal, and such a GPS tracker can be regarded as a “special technical tool for secretly obtaining information (CTC NPI).
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According to the Decree of the Government of the Russian Federation of April 16, 2012 N 314 : “By special technical means intended for secretly obtaining information, we mean equipment, technical equipment and (or) tools developed, adapted or programmed to secretly receive and register acoustic information; tapping telephone conversations; interception and registration of information from technical communication channels; control of mail messages and shipments; research subjects and documents; receiving (changing, destroying) information from the technical means of its storage, processing and transmission “.
According to article 138.1 of the Criminal Code of the Russian Federation, the perpetrator is awaiting either a fine of up to 200 thousand rubles, or imprisonment of up to four years.
There is even a list of CTS NPI types specified in the Russian Federation Government Decree of 01-07-1996 No. 770 , among which clause 7 “Special technical means for secret penetration and inspection of premises, vehicles and other objects” - our device falls under this.
Let us return to the definition of CTS NPI: "... technical equipment ... developed ... for secretly obtaining ... information".
Hence the question: “Will the device be considered as a JTS of the NIP, if I designate its purpose with the marking on the body, special signs on the bicycle frame?”
In accordance with pp.25 p.9 of the Decree of the President of the Russian Federation of August 11, 2003 No. 960, the FSB of Russia regulates regulation in the field of development, production, sale, operation, import and export of encryption (cryptographic) funds to / from the Russian Federation.
I asked them to inform them whether it is legitimate to use this GPS tracker in the manner described above to protect my own transport?
Of course, there is no information in this registry on this device. This means that either it does not contain any cryptographic algorithms, or its verification has never been carried out by anyone. And, most likely, this is the second.
It became interesting to me, is it possible to independently give the device for inspection to an accredited organization and obtain a permits document that will allow the device to be used legally?
I phoned all the companies in the city that conduct independent examinations, and out of a dozen, only one said that she could conduct it. I sent by e-mail more detailed information on the GPS tracker for a preliminary assessment of the cost and received the answer:
By the way, if a case is brought to you, the examination within the investigation will be conducted free of charge.
With a similar question, I turned to the FSTEC.
FSTEC of Russia (Federal Service for Technical and Export Control) -
controls export and (or) import of goods (works, services), information, results of intellectual activity in respect of which export controls are established, according to Order of the FSTEC of Russia of April 4, 2008 N 78.
Despite the list of its functions, the FSTEC replied that it was not in its competence, and sent me to the Federal Security Service of Russia and the Federal Customs Service (FCS).
Well, with the same question I turned to the FCS.
FCS replied:
In general, they did not even take into account how and for what purposes the use of the device is planned.
There is a Resolution of the Constitutional Court of the Russian Federation No. 3-P dated March 31 , 2011 , which states that outside the law are devices intended specifically for secret (secret, non-obvious, secretive) obtaining information that violate secrecy and privacy.
And, by the way, the decisions of the Constitutional Court of the Russian Federation are final, not subject to appeal, and can be used as a precedent in similar cases.
I will quote from the resolution the main thing:
After the press conference of 12/14/2017 , Russian President Vladimir Putin instructed the Prosecutor General’s Office to adjust Russian legislation, which implies the responsibility of individuals for the acquisition of technical means for secretly obtaining information.
The full text of the instruction can be viewed on the website of the President of Russia . Order “Pr-2713, p. 1 g)".
Deadline - March 15, 2018 Responsible: Medvedev D.A.
The latter entrusted this to the FSB, the Ministry of Industry and Trade, the Ministry of Economic Development, the Ministry of Communications and the Federal Customs Service of Russia, before March 1, 2018.
No results on this instruction have been found by me.
In RuNet created many petitions calling for a review of article 138.1 of the Criminal Code.
The largest is on the site OnlinePetition.ru . But at the moment it was signed by only 4 hundred votes, out of the required 100 thousand.
Article 138.1 of the Criminal Code of the Russian Federation does not contain a clear concept of the CTC NPI, their exhaustive list, signs and criteria for delimiting from the technical means allowed for circulation. Therefore, at this time, prosecutors are given unreasonably broad limits of discretion, thereby allowing arbitrary application of this article.
Despite this, there is a reaction from the authorities, who promise to solve this problem in the near future, and judicial practice, allowing the use of such unsecured devices for personal (household) purposes.
Therefore, I came to the conclusion that it is still possible to use a GPS tracker from a Chinese online store, indicating its presence, to track my bike. But the acquisition is a big question! On the one hand, if you use the device is not covertly, for household personal needs, then it will not be a CTC NPI by definition. On the other hand, while the non-certified device has not passed the test, it is impossible to say whether it is a CTS NPI or not?
In general, most likely, the acquisition of a GPS tracker will be illegal, since The examination will take into account only the technical data of the device. Therefore, it is necessary to make amendments to the law, which will take into account the method of using such devices.
It remains to expect that the wording in the legislation regarding the CTC NPI will make it more unambiguous, and hope that ordinary citizens will not suffer from this.
11/29/2018 upd: The Supreme Court explained how unreasonably not to attract citizens for spyware .
According to the article, article 138.1 of the Criminal Code of the Russian Federation cannot be qualified as an “action of a person who acquired a device intended for secretly obtaining information for use, for example, for personal security, for the safety of family members, including children, for the safety of property or for tracking animals, and did not intend to use it as a means of encroaching on the constitutional rights of citizens (including interfering in someone else’s privacy). ” The decree will be made after making a number of editorial changes.
How did it all start?
I am a cyclist and ride my two-wheeler all year round. In my small town of 250 thousand people is the perfect transport. In any point of the city on it can be reached in half an hour. It is dear to me, and so I decided to secure it (there were precedents!) By ordering a GPS tracker from a Chinese online store. It integrates into the steering column. And when activating the security mode, it can notify via SMS if the bike is moved and send GPS coordinates with a link to Google maps.
Suddenly, I find out that this may be illegal, and such a GPS tracker can be regarded as a “special technical tool for secretly obtaining information (CTC NPI).
')
What is the CTS NPI?
According to the Decree of the Government of the Russian Federation of April 16, 2012 N 314 : “By special technical means intended for secretly obtaining information, we mean equipment, technical equipment and (or) tools developed, adapted or programmed to secretly receive and register acoustic information; tapping telephone conversations; interception and registration of information from technical communication channels; control of mail messages and shipments; research subjects and documents; receiving (changing, destroying) information from the technical means of its storage, processing and transmission “.
According to article 138.1 of the Criminal Code of the Russian Federation, the perpetrator is awaiting either a fine of up to 200 thousand rubles, or imprisonment of up to four years.
There is even a list of CTS NPI types specified in the Russian Federation Government Decree of 01-07-1996 No. 770 , among which clause 7 “Special technical means for secret penetration and inspection of premises, vehicles and other objects” - our device falls under this.
Noisy cases of using CTS NPI
- News from 09/06/2010: A radio amateur from Arkhangelsk Alexei Trubin found a published scheme in the magazine “Radio”, made a radio microphone and a device for his son, commonly known in everyday life as a “baby monitor”. He was sentenced to 1.5 years probation.
In this report, mention is also made of the “trade in household recording devices,” but they clearly fall under the definition of the CTC NPI. - News from 12/15/2017: A large farmer in the Kurgan region is tried for buying a GPS tracker and attaching it to a calf, who is walking by himself. The farmer did not suspect that this falls under the article on the illicit trafficking of special equipment.
On 21.03.2018, it turned out that the case was closed due to the absence of real espionage intent in the actions of the accused. - News from 03/29/2017: Vladimir Taktaev bought action glasses that he wanted to use for fishing. He used his glasses only a few times, after which he decided to sell them through the Avito website due to financial difficulties. The buyer called - it turned out to be an employee of the FSB. As a result, Taktaeva was sentenced to 8 months in prison.
Reasonable doubts, or what the FSB of Russia will say?
Let us return to the definition of CTS NPI: "... technical equipment ... developed ... for secretly obtaining ... information".
Hence the question: “Will the device be considered as a JTS of the NIP, if I designate its purpose with the marking on the body, special signs on the bicycle frame?”
In accordance with pp.25 p.9 of the Decree of the President of the Russian Federation of August 11, 2003 No. 960, the FSB of Russia regulates regulation in the field of development, production, sale, operation, import and export of encryption (cryptographic) funds to / from the Russian Federation.
I asked them to inform them whether it is legitimate to use this GPS tracker in the manner described above to protect my own transport?
Full text of the appeal
In response, I received the following:Good day!
I own a bicycle, I often drive around the city and value my means of transportation very much.
Also, I already had a case of theft of wheels costing 20,000 rubles, which could not be found (report on a crime registered in KUSP OP No. 1 of the Ministry of Internal Affairs of Russia in Syktyvkar for No. 13495 dated 09/09/2016).
In this regard, I would like to install an anti-theft system in my vehicle.
The only device variant that fits in size and functionality is the Coban GPS 305 GPS tracker. The seller is located in China and does not have a certificate for this device.
About the device: The GPS tracker is installed in the steering column for better reception of the GSM and GPS signal, thus its upper end part is visible. Using a magnetic key, the device switches to the “security” mode, and when the bicycle is moving, the device sends a message to the owner. It also passes the location of the bike to a special Web-service, through which the owner can track the movements of his bike.
I plan to stick the device with the model and purpose of the device to the device ("Coban GPS 305, GPS / GSM / GPRS, anti-theft bicycle device"). The bicycle frame will indicate that it is equipped with an anti-theft system.
In the Decree of the Government of the Russian Federation of 10.03.2000 No. 214 ed. of March 20, 2018, in the list of types of CTC NPI there are “Special technical means for secret control over the movement of vehicles and other objects” (paragraph 8). However, the aforementioned GPS tracker, when using labels and signs, will not be “covertly implemented” and should not belong to special technical means intended for covert information (ITS CIP) by definition.
Please inform me if this is the case of the CTS NPI device? Is it legitimate to acquire and use in the manner described above in accordance with the goals I have indicated, and whether its acquisition is punishable under art. 138.1 of the Criminal Code?
Instructions, including specifications, to the GPS-tracker Coban GPS 305 attached.
... The use of this device by the method described in the appeal is legitimate and is not punishable under Article 138.1 of the Criminal Code of the Russian Federation ...
With regard to the acquisition of the device ... If the foreign equipment planned for import contains cryptographic algorithms, then ... the encryption (cryptographic) tools are imported or exported if there is information about the inclusion of the corresponding notification in the unified register of notifications or conclusion (authorization document) ...
Full answer
Of course, there is no information in this registry on this device. This means that either it does not contain any cryptographic algorithms, or its verification has never been carried out by anyone. And, most likely, this is the second.
Check on the belonging of the GPS tracker to the JTS NPI
It became interesting to me, is it possible to independently give the device for inspection to an accredited organization and obtain a permits document that will allow the device to be used legally?
I phoned all the companies in the city that conduct independent examinations, and out of a dozen, only one said that she could conduct it. I sent by e-mail more detailed information on the GPS tracker for a preliminary assessment of the cost and received the answer:
Good day. The cost of the study will be 17,100 p.17100 rubles! This is 6 times more expensive than the tracker! And it is very likely that STS NPI will recognize it, focusing on its technical data, and nothing more.
By the way, if a case is brought to you, the examination within the investigation will be conducted free of charge.
What do FSTEC and FCS say about this?
With a similar question, I turned to the FSTEC.
FSTEC of Russia (Federal Service for Technical and Export Control) -
controls export and (or) import of goods (works, services), information, results of intellectual activity in respect of which export controls are established, according to Order of the FSTEC of Russia of April 4, 2008 N 78.
Despite the list of its functions, the FSTEC replied that it was not in its competence, and sent me to the Federal Security Service of Russia and the Federal Customs Service (FCS).
FSTEC full response
Well, with the same question I turned to the FCS.
FCS replied:
... Based on the functionality of the GPS tracker, it may be categorized as special technical means for secretly monitoring the movement of vehicles and other objects ...
Full reply FCS
In general, they did not even take into account how and for what purposes the use of the device is planned.
Arbitrage practice
There is a Resolution of the Constitutional Court of the Russian Federation No. 3-P dated March 31 , 2011 , which states that outside the law are devices intended specifically for secret (secret, non-obvious, secretive) obtaining information that violate secrecy and privacy.
And, by the way, the decisions of the Constitutional Court of the Russian Federation are final, not subject to appeal, and can be used as a precedent in similar cases.
I will quote from the resolution the main thing:
Quotation of the Resolution of the Constitutional Court of the Russian Federation
p.3.1 ...
Thus, within the meaning of part three of Article 138 of the Criminal Code of the Russian Federation in systemic unity with the provisions of the Federal Law "On Operational Search Activity" and the corresponding regulatory legal acts of the Government of the Russian Federation, to technical means for secretly receiving information, the free circulation of which in the Russian Federation prohibited and, therefore, the production, sale or purchase of which without a special, statutory permit is illegal, are only special technical means designed (developed, adapted, programmed) specifically for the purpose of secret (i.e. secret, non-obvious, secretive) information, the secret and inviolability of which are guaranteed by articles 23, 24 (part 1) and 25 of the Constitution of the Russian Federation, as well as the legislation of the Russian Federation.
In particular, it can be technical means that are camouflaged as objects (devices) of other functional purposes, including household ones; the detection of which due to small size, camouflage or technical parameters is possible only with the help of special devices; which possess technical characteristics, parameters or properties directly indicated in the relevant regulatory legal acts; which are functionally intended for use by special subjects.
As for technical means (objects, devices), which, by their technical characteristics, parameters, properties or direct functional purpose, are designed only for residential use by the mass consumer, they cannot be classified as special technical means for secretly obtaining information, unless they are intentionally the necessary qualities and properties are not given, including through special technical refinement, programming precisely for their unobvious, secretive application ...
...
decided:
1. Recognize the provision of the third part of Article 138 of the Criminal Code of the Russian Federation, which provides for criminal liability for the illegal production, sale or purchase of special technical equipment intended for secretly receiving information that does not contradict the Constitution of the Russian Federation, since - according to the constitutional legal meaning of this provision in the system legal regulation - it is assumed that criminal liability is incurred for the production, sale or purchase of such special technical means that are intended (developed, adapted, programmed) for tacit (i.e. secret, non-obvious, secretive) obtaining information affecting the rights of the individual, guaranteed by articles 23, 24 (part 1) and 25 of the Constitution of the Russian Federation, types and the signs of which are determined by the relevant federal laws and regulatory acts of the Government of the Russian Federation issued on their basis and the free circulation of which is not allowed if the specified actions are performed without the corresponding her license and not for the needs of bodies authorized to conduct operational search activities.
The reaction of the authorities
After the press conference of 12/14/2017 , Russian President Vladimir Putin instructed the Prosecutor General’s Office to adjust Russian legislation, which implies the responsibility of individuals for the acquisition of technical means for secretly obtaining information.
The full text of the instruction can be viewed on the website of the President of Russia . Order “Pr-2713, p. 1 g)".
Deadline - March 15, 2018 Responsible: Medvedev D.A.
The latter entrusted this to the FSB, the Ministry of Industry and Trade, the Ministry of Economic Development, the Ministry of Communications and the Federal Customs Service of Russia, before March 1, 2018.
No results on this instruction have been found by me.
Reaction of citizens
In RuNet created many petitions calling for a review of article 138.1 of the Criminal Code.
The largest is on the site OnlinePetition.ru . But at the moment it was signed by only 4 hundred votes, out of the required 100 thousand.
findings
Article 138.1 of the Criminal Code of the Russian Federation does not contain a clear concept of the CTC NPI, their exhaustive list, signs and criteria for delimiting from the technical means allowed for circulation. Therefore, at this time, prosecutors are given unreasonably broad limits of discretion, thereby allowing arbitrary application of this article.
Despite this, there is a reaction from the authorities, who promise to solve this problem in the near future, and judicial practice, allowing the use of such unsecured devices for personal (household) purposes.
Therefore, I came to the conclusion that it is still possible to use a GPS tracker from a Chinese online store, indicating its presence, to track my bike. But the acquisition is a big question! On the one hand, if you use the device is not covertly, for household personal needs, then it will not be a CTC NPI by definition. On the other hand, while the non-certified device has not passed the test, it is impossible to say whether it is a CTS NPI or not?
In general, most likely, the acquisition of a GPS tracker will be illegal, since The examination will take into account only the technical data of the device. Therefore, it is necessary to make amendments to the law, which will take into account the method of using such devices.
It remains to expect that the wording in the legislation regarding the CTC NPI will make it more unambiguous, and hope that ordinary citizens will not suffer from this.
11/29/2018 upd: The Supreme Court explained how unreasonably not to attract citizens for spyware .
According to the article, article 138.1 of the Criminal Code of the Russian Federation cannot be qualified as an “action of a person who acquired a device intended for secretly obtaining information for use, for example, for personal security, for the safety of family members, including children, for the safety of property or for tracking animals, and did not intend to use it as a means of encroaching on the constitutional rights of citizens (including interfering in someone else’s privacy). ” The decree will be made after making a number of editorial changes.
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