Protection of secrets protected by law: flaws in legal regulation.
Kholodny Yu. I.
Protection of secrets protected by law: flaws in legal regulation.
Source: Public and private law 2009, issue II
The article presents the results of a comparative analysis of the human factor in protecting state and commercial secrets.
The use of polygraph surveys in monitoring the activities of personnel dealing with information constituting a state and commercial secret is discussed.
The imperfection of Russian legislation in the field of protecting state and commercial secrets is shown.
Federal laws protect state and commercial secrets. It is generally accepted that the safety of information of both classes is on equal terms. Is this opinion true?
State secrets: the place of the human factor
The need to protect information constituting a state secret is an obvious thing for any state and does not require any special argumentation.
Therefore, it is not surprising that the Law of the Russian Federation of July 21, 1993 No. 5485-1 «On State Secrets» is one of the oldest laws adopted by the Russian Federation.
This law established the procedure for access to state secrets, and in particular assumes that such access of officials and citizens (Article 21) «shall include: «written consent to the implementation of verification measures in relation to them by authorized bodies.»
The scope of verification measures depends on the level of secrecy of the information to which the person being registered will be allowed. «The purpose of conducting verification measures is to identify the grounds provided for in Article 22 of this Law.»
Let us recall that in accordance with the levels of secrecy of information constituting a state secret, forms of clearance are established: the first — for citizens admitted to information of special importance; the second — for citizens admitted to top secret information; the third — for citizens admitted to secret information.
Verification activities for the first and second forms are carried out by the FSB of Russia, and for the third form — by the head of the organization, who in some cases seeks assistance from the security agencies for verification activities.
The admission procedure is determined by the Instruction on the procedure for granting officials and citizens of the Russian Federation access to state secrets, approved by the Decree of the Government of Russia dated October 28, 1995 No. 1050.
Having undergone the verification procedure once (or, with the third type of clearance, even without undergoing such measures), any employee, regardless of his job status and knowledge, received a virtually unlimited time clearance to state secrets. «Renewal of a citizen's clearance under the first or second form is carried out respectively after 10 or 15 years only in the event of a transfer to another place of work.
Renewal of clearance for citizens permanently employed in the organization that issued them clearance is not required» [6. P. 79|.
This provision is comprehensive, although it has several exceptions, based mainly on the voluntary declaration by a specific citizen of the emergence of grounds that prevent his further access to state secrets.
In other words, having received access to information constituting a state secret, the employee was automatically recognized as permanently loyal and the employer had no legal basis for preventive control over his activities for years until the moment when a case of “violation of the obligations assumed by him under the employment agreement (contract) related to the protection of state secrets” occurred [3. Art. 23].
Apparently, it is precisely the lack of a flexible system of ongoing control over the activities of persons who have access to information constituting a state secret that, to a certain extent, explains the cases of violations in working with information of this class, which periodically receive publicity in the media.
In conclusion of a brief overview of the human factor in the matter of protecting state secrets, for the sake of convenience of further presentation of the material, we recall that the Law of the Russian Federation «On State Secrets», among other things, defined: the list of information constituting a state secret, and the procedure for classifying it.
The law also specified that the subjects of protection of state secrets, i.e. «the federal executive authorities (the Federal Security Service of the Russian Federation, the Ministry of Defense of the Russian Federation) and their local bodies organize and ensure the protection of state secrets in accordance with the functions assigned to them by the legislation of the Russian Federation» [Ibid. Art. 5, 9; Art. 20. Part 3].
Federal Law «On Commercial Secrets»: changes, blunders and losses
The entry into force of Federal Law No. 98-FZ of July 29, 2004 «On Commercial Secrets» was a significant step in the further improvement of legal regulation in the field of protection of confidential information, the foundations of which were laid by Federal Law No. 24-FZ of February 20, 1995 «On Information, Informatization and Information Protection».
The Federal Law «On Commercial Secrets» was in demand by public practice, especially in the area of actively developing market relations in our country.
In particular, this law introduced the concept of «commercial secret regime — legal, organizational, technical and other measures taken by the owner of information constituting a commercial secret to protect its confidentiality» [4. Art. 3. Part 3].
It should be emphasized that the list specified by law was open and “the owner of the information was given the right, at his own discretion, to form a system of protection and counteraction to possible attempts to gain illegal access to his secrets” [2. P. 87].
However, in its original form, the law did not last long.
The Federal Law of December 18, 2006 No. 231-FZ «On the Implementation of Part Four of the Civil Code of the Russian Federation» that came into force entailed amendments and additions to a number of federal laws, including the Federal Law «On Commercial Secrets».
It seems appropriate to dwell on these changes that the Federal Law «On Commercial Secrets» underwent after Part 4 of the Civil Code of the Russian Federation came into force.
The Federal Law «On Commercial Secrets», small in volume (only 16 articles), «shrunk» by more than a quarter: Articles 7, 8, 9 and 12 and seven parts or paragraphs of Articles 3, 4 and 11 were declared invalid.
What was lost by this law?
Firstly, paragraph 3, which disclosed the content of the concept of “commercial secret regime”, i.e. one of the most important concepts in this law, has disappeared from Article 3 “Basic concepts used in this Federal Law”.
The lack of thought in excluding the concept of the commercial secret regime from the Federal Law is obvious and takes on a curious character when considering the concept of “commercial secret”, which the legislator defined as “the regime of confidentiality of information” [4. Article 3. Paragraph 1].
As a result, the «commercial secret regime» should be understood as the «regime of confidentiality of information».
At the same time, having excluded the explanation of the essence of the «commercial secret regime» from Art. 3, the «shrunk» Federal Law cannot do without this concept, and it occurs in the text of this law 10 (!) times.
The second omission of the «shrunk» Federal Law «On Commercial Secrets» was that Art. 7 «Rights of the owner of information constituting a commercial secret» lost its force.
As a result, the effectiveness of this Federal Law on the protection of commercial secrets has decreased.
The third flaw of the «shriveled» Federal Law «On Commercial Secrets» was that Article 9 of this law, which regulated «the procedure for establishing a commercial secret regime when performing a government contract for government needs,» was excluded.
The exclusion of this article from the Federal Law «On Commercial Secrets» is fraught with damage to the economic interests of the state and society.
The above and a number of other omissions, which the reader will easily discover, have made the “shriveled” Federal Law “On Commercial Secrets” significantly weaker than its original version1.
Commercial Secrets and Control of the Human Factor in Their Protection
The Federal Law “On Commercial Secrets” establishes that “the right to classify information as information constituting a commercial secret and to determine the list and composition of such information belongs to the owner of such information.”
Moreover, the owner of this information is understood to be “a person who possesses information constituting a commercial secret, has legally restricted access to this information and has established a commercial secret regime in relation to it” [4. Art. 4].
The legislator did not limit himself to mentioning the advisability of establishing a commercial secret regime and directly indicated those necessary “measures to protect the confidentiality of information that its owner has the right to take.
Among such measures, the legislator has defined, in particular, “restricting access to information constituting a commercial secret by establishing a procedure for accessing such information and monitoring compliance with such a procedure” (Ibid. Art. 11. Part 1. Clause 2].
Moreover, the legislator stated that “the owner of information constituting a commercial secret has the right to use, if necessary, means and methods of technical protection of the confidentiality of this information, other measures that do not contradict the legislation of the Russian Federation”, and “in order to protect confidential information, the employee is obliged to comply with the commercial secret regime established by the employer” (Ibid. Art. 10. Part 4; Art. 11. Part 3. Clause 1).
The Federal Law “On Commercial Secrets” directly states that “measures to protect the confidentiality of information… must include… regulation of relations on the use of information constituting a commercial secret by employees on the basis of employment contracts”.
Not limited to this, this law once again mentions the employment contract when it introduces the concept of “disclosure of information constituting a commercial secret” and obliges the employer to “familiarize the employee, against signature, with the commercial secret regime established by the employer and with the measures of liability for its violation” (Ibid. Art. 10. Part I. Clause 4; Art. 3. Clause 9; Art. 11. Part 2. Clause 2).
The last of the above provisions of the Federal Law «On Commercial Secrets» is consistent with the provisions of the Labor Code of the Russian Federation, which establish the rights and obligations of the employee and the employer, i.e. both parties to the labor relationship.
In particular, according to the Labor Code, the employee, among other things, is obliged to «observe labor discipline; treat the employer's property with care; …immediately notify the employer or immediate supervisor of the occurrence of a situation that poses a threat… to the safety of the employer's property» [7. Art. 21. Part 2].
For its part, “the employer has the right: to demand that employees fulfill their work duties and treat the employer’s property with care; to comply with the internal work regulations of the organization; to hold employees liable for disciplinary action and financial liability in the manner established by this Code and other federal laws” [Ibid. Art. 22. Part 1].
Thus, the above articles of the Labor Code of the Russian Federation and the Federal Law «On Commercial Secrets» oblige the employee to cooperate with the employer in order to ensure the latter's commercial interests, and these obligations are fixed by the terms of the employment contract.
Flaws in the legal regulation of the protection of secrets protected by law
The above analysis of the provisions of the Law of the Russian Federation «On State Secrets» and the Federal Law «On Commercial Secrets» regulating the participation of the human factor in protecting the confidentiality of information protected by these laws leads to at least three unexpected conclusions.
First. The Law of the Russian Federation «On State Secrets» paid great attention to the issues of admitting persons to information constituting a state secret [3. Art. 21; Art. 21.1; Art. 22-25].
As mentioned above, when obtaining access to state secrets under the first and second forms, verification activities are carried out by the FSB of Russia.
This system worked universally (until the end of the 20th century) in all cases without exception when accessing information constituting a state secret.
In March 1993, the Ministry of Justice authorized the use of polygraph (a device often incorrectly called a lie detector) interrogations in conducting operational investigative activities on the territory of the Russian Federation.
Since 2000, first in the FSB, then in the Ministry of Internal Affairs, as well as in other federal agencies of Russia, the method of questioning using a polygraph has been used as a systematic measure for selecting personnel when hiring for a service related to access to information constituting a state secret.
The expansion of the use of the polygraph has led to the fact that the scope of verification measures in relation to persons applying for access to information constituting a state secret (including those classified as “special importance” and “top secret”) has begun to differ significantly.
Some applicants for such access (for example, employees of the Ministry of Internal Affairs, the FSB and some other agencies) underwent a procedure of interrogation using a polygraph, while others were not subjected to such testing, for example, employees of defense industry enterprises, other state and non-state institutions.
Thus, the first paradox is that federal agencies — polygraph users — saw no obstacles to its use in personnel selection, while other institutions and organizations, acting in the same legal field, did not see sufficient grounds and direct indications of the need to use (during verification activities when granting access to state secrets) polygraph surveys.
As a result, a practice of different interpretations of Article 21 of the Law of the Russian Federation «On State Secrets» has developed depending on the departmental affiliation or form of ownership of the user of the state secret.
Naturally, questions may arise: is the use of polygraph surveys when granting access to information constituting a state secret really relevant?
Isn't the desire to use a polygraph for the above purposes far-fetched?
Answers to such questions are provided, for example, by the practice of selecting personnel for the Russian Ministry of Internal Affairs, according to which «up to 47% of the examined candidates for service were classified as persons concealing negative information…
The results reflect an unfavorable, but real qualitative characteristic of candidates for service in law enforcement agencies…
The structure of cases of concealment of negative information is dominated by: non-medical use of narcotics, committing criminal acts, stable personal and business ties with criminal elements, addiction to gambling, use of forged documents» [1. P. 78-791, etc.
It is clear that such «negative information» rarely comes to the attention of bodies authorized by law to conduct verification activities when accessing state secrets.
And law enforcement agencies recruit candidates for service from the same society from which individuals are selected who, for example, are hired to work in the defense industry and who claim access to state secrets.
As mentioned above. The Law of the Russian Federation «On State Secrets», having allowed this or that employee access to information constituting a state secret, in no way regulated the procedure for monitoring compliance by this employee with established requirements, including service discipline.
The unresolved nature of this issue creates certain difficulties in the work of even those federal agencies that, using the polygraph when hiring, seek to use it for the purpose of monitoring the official activities of senior officers and (or) military personnel.
For example, in the Ministry of Internal Affairs of Russia, “when conducting an official check and in personnel work in general” for many managers and other interested parties, doubts remain about the admissibility of hiring a specialist to conduct interviews using a polygraph.
As a result, the issue of using a polygraph once again confirms the need to develop a departmental order of the Ministry of Internal Affairs of Russia that would regulate the issues of conducting surveys using a polygraph in the personnel work of internal affairs agencies” [5. P. 113-114].
This omission of the Law of the Russian Federation “On State Secrets” is absent from the Federal Law “On Commercial Secrets”.
Despite all its shortcomings, the Federal Law «On Commercial Secrets», having paid less attention to the organization of access to protected secrets, gave the employer the right to establish the procedure for observing the commercial secret regime and, as a consequence of this, to exercise the necessary control over the activities of personnel working with such information.
Thus, by removing paragraph 3 of Article 3 from the Federal Law “On Commercial Secrets”, which defined the content of the concept of “commercial secret regime”, and by making this concept amorphous, the legislator at the same time effectively provided the employer, as the owner of a commercial secret, with unlimited opportunities to protect it, including “means and methods of technical protection of the confidentiality of this information”, as well as “other measures that do not contradict the legislation of the Russian Federation” (4. Article 10. Part 1. Clause 2; Part 2].
Currently, non-governmental organizations, in order to protect their commercial interests, increasingly resort to polygraph surveys, using this method for preventive (periodic or random) checks of working personnel.
In cases where, relying on the Federal Law «On Commercial Secrets», they introduce a commercial secret regime and related local regulations, the use of polygraph surveys begins to fully comply with the norms of domestic labor legislation, and the polygraph becomes an effective legitimate means of protecting information protected by this law.
Thus, it is easy to notice the second paradox of the existing legal regulation of secrets protected by law.
It turns out that the Federal Law «On Commercial Secrets», unlike the Law of the Russian Federation «On State Secrets», granted the employer greater freedom of action to control the activities of the working personnel, and in particular provided a legal basis for the use of the polygraph survey method for these purposes.
Having summed up the first two, it is easy to deduce the main third paradox.
It consists in the fact that the Federal Law «On Commercial Secrets», which has lost a number of important articles and logical coherence compared to its original version, nevertheless currently provides the employer as the owner of a commercial secret with broader opportunities for its protection than the Law of the Russian Federation «On State Secrets», for information protected by it with the classifications «special importance» and «top secret».
In other words, the legislator protects commercial secrets better than state secrets.
In Russia, when solving any problems, two main questions traditionally arise: “Who is to blame?” and “What is to be done?” Leaving the first without comment, we will immediately turn to the second question, the discussion of which will be the subject of the next article.
Literature
1. Myagkikh, N. I. Use of polygraph devices in professional psychological selection for internal affairs agencies/N. I. Myagkikh //Problems of using polygraph devices in the activities of internal affairs agencies: Proceedings of scientific and practical conference, Moscow, September 15-26, 2008 — M,, 2008.
2. Pronin, K. V. Protection of commercial secrets/K. V. Pronin. — M.: GrossMedia. 2006.
3. Russian Federation. Laws. On State Secrets: Law of the Russian Federation of July 21, 1993 No. 5485-1 (as amended by Federal Laws of October 6, 1997 No. 131-FZ, June 30, 2003 No. 86-FZ, November 11, 2003 No. 153-FZ, June 29, 2004 No. 58-FZ, August 22, 2004 No. 122-FZ) //. legislation of the Russian Federation. — 1997. — No. 41. — Art. 4673; 2003. — No. 27 (Part 1). -Art. № 46 (Part 2). — Art. 4449; 2004. — № 27. — Art. 2711; № 35. — Art. 3697.
4. Russian Federation. Laws. On Commercial Secrets: Federal Law of July 29, 2004 № 98-FZ (as amended by Federal Law of December 18, 2006 № 19-FZ) //. legislation of the Russian Federation. — 2004. — № 32. -Art. 3283; 2006. — № 6. — Art. 636.
5. Semenov V.V. Features of conducting research using a polygraph during official checks of cadets and students of higher education institutions of the Ministry of Internal Affairs of Russia/V.V. Semenov //Problems of using polygraph devices in the activities of internal affairs agencies: Materials of scientific and practical conference, Moscow, September 25-26, 2008 — M., 2008.
6. Sumin L.A. Commentary on the Law of the Russian Federation «On State Secrets»/A.A. Sumin. — M.: NORMA-INFRA. 2001.
7. Labor Code of the Russian Federation (dated December 30, 2001, with subsequent amendments and additions): Official text. — M.: OMEGA-L, 2009.
1 The amendments were made to the Federal Law «On Commercial Secrets» in a very sloppy manner and gave rise to a number of obvious inconsistencies. For example, Part 1 of Article 1 indicates that «this Federal Law regulates relations related to the establishment, change and termination of the commercial secret regime with respect to information constituting a production secret (know-how).» At the same time, Clause 2 of Article 3 states that «information constituting a commercial secret (production secret). — information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical sphere, which have actual or potential commercial value. — in relation to which the owner of such information has introduced a commercial secret regime.» There is no doubt that the said «information of any nature» and «production secret (know-how)» are far from identical concepts.