A futuristic view of special technical means..
KARETNIKOV Mikhail Konstantinovich
FUTURISTIC VIEW OF SPECIAL TECHNICAL MEANS
Futurism is a formalistic movement in art and literature of the early twentieth century that rejected realism and attempted to create a new style that would destroy all the traditions and techniques of old art1.
Today, special equipment acts as an effective and sharp weapon of operational-search activity in the fight against crime, including its most dangerous manifestation — organized crime. Among the main factors determining such a role of special technical means, one can name the formation of operational-search legislation in our country, which established the legality and procedure for their use for the covert acquisition of information in the course of operational-search activity, the emergence of new-generation special equipment with previously inaccessible tactical capabilities, the rapid development of the information infrastructure of modern society.
In this article, based on the analysis of one of the problems of using special technical means, an attempt is made to predict some features of special equipment of the future generation. For a number of reasons, the work examines only one aspect of using special technical means, namely: ensuring the evidentiary nature of information obtained with their help. And here it must be stated that the process of using the results of operational-search activities, in particular, materials obtained with the use of special technical means, in proving in criminal cases is still far from straightforward. With rare exceptions, in the practice of law enforcement agencies, it encounters significant difficulties.
Indeed, in accordance with the provisions of the law «On State Secrets», the federal law «On Operational Investigative Activities», information about the forces, means, sources, methods, plans and results of operational investigative activities constitute a state secret. This, in particular, means that information about the executors of the event: about persons embedded in organized criminal groups, full-time undercover employees of agencies carrying out operational investigative activities; about persons assisting them on a confidential basis; information about special technical means, their tactical and technical characteristics, the technological schemes used to obtain information must remain secret.
On the other hand, Article 70 of the Criminal Procedure Code of the RSFSR establishes that all materials on a criminal case are subject to careful, comprehensive and objective verification by the person conducting the inquiry, the court. This means that the relevant authorities must be able to trace the entire path of the formation of evidence in order to ensure the reliability of the source, and that no distortion of the information constituting the content of the evidence has occurred in this process2. The following general rule follows from the normative definition of evidence (Article 69 of the Criminal Procedure Code) and a number of other norms of the Criminal Procedure Code (Articles 74, 75): factual data of unknown origin may under no circumstances become evidence.
Thus, “…uncertainty about how, where and under what circumstances a material object carrying this or that information was obtained deprives it of evidentiary force”3. Due to this, it is considered that proof requires the presentation of accurate and reliable information about the time, place, conditions and circumstances of obtaining the materials, the special technical means used and the performer. Moreover, as a number of authors assert, “…without interrogating the operative who presented the item, it will have no evidentiary value”4.
In order to resolve the said contradiction, various proposals have been and are being made on numerous occasions. For example, it is proposed to establish the relevance of an object (materials) to a criminal case using other (in addition to interrogation) procedural actions (inspection, examination, identification), to interrogate only the relevant official in charge of operational investigative activities, to hold closed court hearings, etc.
However, all these and other proposals are subject to fair criticism from opponents (for example, a closed court session should, but does not at all, guarantee the preservation of state secrets) and do not resolve the existing contradiction. Obviously, the norm of the federal law «On operational-search activities», which provided the opportunity to declassify operational data on the basis of a resolution of the head of the body carrying out operational-search activities, cannot be considered as a universal remedy.
Thus, one of the main problems, apparently, is the contradiction between the requirements of openness of the judicial process and the security of information about operational-investigative activities, which has not been resolved by modern legislation.
The current century will obviously finally become the century of “digital” technology: digital technologies are confidently gaining ground in almost all areas of creation, storage, processing and dissemination of information. In this regard, another problem, which in our opinion is not given due attention, remains the question of using secretly obtained materials, originally presented in digital form, in evidence. This applies to telegraph, fax, paging, computer messages intercepted during operational investigative activities, acoustic and video recordings made with the help of “digital” bugs, “digital” tape recorders, photographs made with the help of digital cameras, computers, etc.
One cannot fully agree with the opinion that “…when transferring information to computer memory, the individual characteristics of the original nature of the data are inevitably lost – only the meanings behind them remain. By defining the threshold, upon overcoming which changes in a physical quantity will be called a unit, we thereby determine the magnitude of information losses and destroy the individuality initially inherent in analog data”5. Obviously, in the general case, a digital message can reflect the corresponding analog (original) message with any predetermined accuracy. And in a digital, for example, acoustic file, there can be practically any significant features necessary, in particular, for the production of a phonographic examination. Thus, the main “root of evil” here is the fundamental possibility of falsification, editing of digital materials without leaving any traces, which, as a rule, does not allow us to guarantee their authenticity.
It is not without reason that in recent years, courts of various instances have practically refused to consider any materials presented in digital form, which were obtained during operational-search activities. At the same time, the essence of the problem may be even somewhat deeper than it seems at first glance. To illustrate, we will cite the opinion of a number of experts in the field of speech technologies. According to them, the following situation is currently quite real. A specialist converts an “analog phonogram into a “digital” one, makes illegal changes to the latter, and again converts the now “digital” phonogram into an analog one. With the appropriate technical equipment and a sufficiently high qualification of the performer, a violation of the authenticity of an “analog” phonogram is not established using existing methods of conducting relevant examinations. Of course, there is no canonical proof of the validity of this statement. However, if there is even a small probability of such a situation being realized, then the current position of the courts, which do not accept, for example, “digital” phonograms and accept “analog” ones, unfortunately becomes similar to the well-known position of the ostrich.
Thus, the current lack of real methods for determining the authenticity and authorship of digital messages is perhaps the main problem of converting relevant data obtained in the process of operational investigative activities into evidence.
Thus, the most important facts that must be clarified during the judicial review of the materials of operational-search activities obtained using special technical means must be:
- the authenticity of the data recorded on the presented information carriers. In other words, the absence of intentional or unintentional distortions of the data. As already noted, establishing this fact is of particular importance for data presented in digital form;
- the place, date and time of receipt of the relevant data;
- participants in the events.
It seems that the solution to these problems can be carried out in a comprehensive manner within the framework of the following areas:
- development of relevant legislative frameworks, provisions of interdepartmental and departmental regulatory acts;
- improvement of operational investigative tactics;
- development of circuit (formal) methods and procedures for ensuring and verifying the authenticity of messages received and recorded during operational investigative activities using special technical means, as well as the corresponding date, time and place of the event.
Let us outline some approaches to solving the problems discussed within the framework of the third direction.
An example of one of such approaches can be the following. It is known, for example, that the current level of development of informatics makes it possible to authenticate digital messages using an electronic digital signature. Let us also recall that the current legislation has established the legal status of such documents: “the legal force of a document stored, processed and transmitted using automated information and telecommunication systems may be confirmed by an electronic digital signature”6.
Consequently, the integration of specialized crypto chips with unique, unchangeable secret keys for each device into special technical means, with the appropriate regulatory and organizational support, fundamentally solves the problem of ensuring and verifying the authenticity of data obtained during operational investigative activities. It is assumed that, in order to protect against deliberate distortion of data, an electronic digital signature is formed on the basis of a two-key cryptographic system and the corresponding secret keys are unknown to the subjects of operational investigative activities (let us recall that data decryption is carried out using so-called public keys). In addition, for devices with analog information processing, “signing is carried out after preliminary data conversion into digital form.
It should be noted that such technology does not solve all problems, but it allows us to establish at least two facts with certainty. The first is that a specific message was actually generated using a specific device. This, in particular, removes or at least weakens the problem of protecting information about the technical means used and its tactical and technical characteristics, since it allows the possibility of presenting in the process of proving not the tactical and technical characteristics of a specific device, but some generalized technical parameters of a class of devices that are important for verifying the results of operational investigative activities. The second fact, no less important for converting the presented information into evidence, is the confirmation using an electronic digital signature of the absence of modification of the message generated by the device in the process of its registration, transmission and presentation.
A much more complex task is to develop formal procedures with the appropriate technical support for recording certain features by special technical means that are not subject to modification and allow for the guaranteed establishment of the most significant circumstances of the operational investigative measure for the process of forming evidence: time, place, actors, etc. without interrogating the perpetrators. Is it possible to record reliable information about the place, date and time of receipt of operational data using technical means? To answer this question, we will provide the following additional information.
In the last decade, systems for determining the coordinates of moving objects, including satellite radio navigation systems, have developed significantly throughout the world. In the context of the problems under discussion, the most important characteristic of such systems is the accuracy of determining the coordinates of the object's location. For civilian applications of the most well-known satellite radio navigation systems GPS NAVSTAR and GLONASS, these indicators are 100 and 70 meters in the horizontal plane, respectively. Improvement in accuracy indicators is achieved by various measures, for example, accumulation of measurements with their subsequent statistical processing. Even today, for certain applications, the accuracy of determining the coordinates of an object's location reaches units and even fractions of a meter.
It is known that the most important parameter of any satellite navigation system is time. The higher the accuracy of the time parameter, the higher the accuracy of the measurements made in the system. To achieve the required accuracy, atomic clocks are installed on board spacecraft, the rate of which is adjusted by signals from the control center.
Consequently, equipping special technical means with navigation receivers in principle solves the problem of circuit recording of precise data on the date, time and place of the operational-search measure. Together with the digital electronic signature of the special technical means, which “fastens the saved or transmitted blocks of information, this will allow the most important facts for the process of proof to be established during the trial. Apparently, in this situation there is no need to interrogate the executor of the operational-search measure (especially since in many cases after equipping the object of control he is not even an indirect witness of the event recorded with the help of technical means). The participants of the event can be established by other witness testimony, conducting various examinations, for example, phonographic, identification, etc.
Implementation of additional non-traditional navigation functions and functions of electronic digital signature is advisable in special technical means of covert acoustic and visual control. Support for the formation of evidence for special equipment solving other problems requires other approaches. For example, for operational-search measures for covert control of messages of technical communication systems, information about the place of their implementation is obviously insignificant. It is still necessary here to ensure guarantees of the immutability of intercepted messages, as well as the presentation of reliable information about the identification numbers (codes) of subscriber communication devices and the identity of subscribers or correspondents.
And in this case, cryptographic methods and technologies of electronic digital signature can come to the rescue. We are talking about the creation of a national infrastructure for cryptographic protection of public telecommunication networks (interestingly, the corresponding work in the United States of America has been underway since the mid-90s). The creation of such an infrastructure is in line with the Doctrine of Information Security of the country, where the following is designated as one of the main tasks of implementing national interests in the information sphere: “to ensure the constitutional rights and freedoms of man and citizen to personal and family privacy, the privacy of correspondence, telephone conversations, postal, telegraph and other messages…”7. It is obvious that such an infrastructure, as in the given example with the electronic digital signature, would allow for the guaranteed establishment of facts necessary in the process of forming evidence based on the corresponding operational-search information. And guarantees of the authenticity of intercepted messages for communication systems with the transmission of speech information would, in turn, allow for the reliable establishment of the identity of the corresponding subscribers with the help of phonographic examinations.
Probably, some of the theses contained in the article will seem controversial, unrealistic, the author can be accused of an overly technocratic approach to the subtle matter of using non-procedural information in proving a criminal case. But something else is also obvious, often elements of solving the most complex problems can only be found in the space of non-traditional approaches — hence the chosen title of the article. And who knows what achievements scientific and technological progress will bring in the near future — perhaps what seems incredible today will be quite accessible tomorrow.
1S.I. Ozhegov. Dictionary of the Russian language. Moscow: «Soviet Encyclopedia». 1972, p. 789.
2Sheifer S.A. Use of non-procedural cognitive measures in proving in a criminal case. Moscow: State and Law. 1997, no. 9, pp. 57-63.
3Lupinskaya P.A. Grounds and procedure for making decisions on the inadmissibility of evidence. Russian Justice, 1994, no. 11, p. 3.
4Dolya E.A. Use of the results of operational-search activities in proving. Moscow: “SPARK”. 1996, p. 79.
5Rastorguev S.P., Chibisov V.N. On the search for traces of an intruder in a computer and on malicious software products. Confidential. Moscow: Information Protection”. № 1-2.1999, p. 63.
6“On information, informatization and protection of information”. Federal Law of February 20, 1995 №24-FZ. //amendment of the legislation of the Russian Federation. 1995 №8. Art. 609 (Part 2, Art. 4).
7Doctrine of information security of the Russian Federation. Moscow: Informatsiologiya”. 2000, p. 6.