#Polygraph
Use of polygraph in Russia.
V. M. Gladyshev, Head of the Federal Center of the FSB of Russia for Licensing and Protection of State Secrets
A. V. Fesenko, Doctor of Technical Sciences, Professor
K. I. Kholodny, Chairman of the Qualification and Methodological Commission of the Russian Association «Polygraph», Candidate of Psychological Sciences
The Government of the Russian Federation, by Resolution No. 770, on October 1, 1996, put into effect the «Regulation on licensing the activities of individuals and legal entities not authorized to carry out operational-investigative activities related to the development, production, sale, acquisition for the purpose of sale, import into the Russian Federation and export outside it of special technical means intended (developed, adapted, programmed) for the covert acquisition of information, and a list of types of special technical means intended (developed, adapted, programmed) for the covert acquisition of information in the process of implementing operational-investigative activities.»
In accordance with this document (clause 2), «activities related to special technical means carried out by legal entities regardless of their organizational and legal form and individual entrepreneurs who are not authorized to carry out operational-search activities are subject to licensing.»
The Government Resolution approved the «List of types of special equipment intended (developed, adapted, programmed) for the covert acquisition of information in the process of implementing operational-search activities» proposed by the FSB of Russia, subject to licensing (see: Security Systems, 1996, No. 5. — Ed.).
The list covers ten classes of special technical means (STM) for covertly obtaining information. One of these classes, in particular, includes technical means of the psychophysiological method of lie detection — pen and computer polygraphs.
Those who are involved in the polygraph testing method to one degree or another have many questions, and first of all — why are polygraphs classified as STS for covert information acquisition, and their use is within the scope of the Russian Federation Government Resolution No. 770?
Finally, what does this resolution mean for domestic and foreign manufacturers and sellers of polygraphs, as well as users of the psychophysiological lie detection method?
The polygraph as a special technical means for covert information acquisition.
Polygraph testing (in scientific and legal literature, the name special psychophysiological research (SPFI) using a polygraph or survey using a polygraph is also used) — the procedure is voluntary and is carried out, naturally, publicly and with the knowledge of the person being tested.
The polygraph operator instructs a specific person on how to behave during this procedure, attaches sensors to his body, asks specifically formulated and grouped questions, and, based on the reactions to these questions recorded by the polygraph, comes to a conclusion about the concealment (or lack of concealment) of information by the person being tested, his involvement or non-involvement in the events of interest*.
Polygraph-based polygraph tests appeared in our country quite a long time ago, although the media did not report on them.
The first information about polygraph tests appeared in print in the winter of 1991, when, at the initiative of the Prosecutor General's Office, this device was used in the case of the murder of Alexander Men.
The test showed that the defendant did not commit the murder, and he was later acquitted.
In subsequent years, polygraph tests, being a very effective method of operational-search activity, are increasingly used by various law enforcement agencies and special services of the country.
Since the beginning of the 90s, domestic commercial firms began to produce the first computer polygraphs.
Gradually, polygraph tests are introduced into the sphere of private enterprise.
The expansion of polygraph use in Russia by government agencies, commercial banks, private corporations, etc. is a natural and inevitable process.
Federal agencies that carry out operational investigative activities (for example, the Ministry of Internal Affairs, the FSB, etc.) use the polygraph on the basis of departmental by-laws regulating the scope and procedure for testing using this device.
At the same time, in the private sector, the production, sale of polygraphs, and the provision of services using these devices occur in a virtually complete legal vacuum.
This situation can hardly be considered normal, and the problem of legal regulation of various aspects of the creation and, especially, the use of polygraphs is very relevant.
In the process of testing carried out with the help of the device, the polygraph operator, being the recipient of probabilistic information about the possible involvement of the person being tested in the established event, or in one or another «risk factor», is not the end user of the information obtained.
The polygraph operator only carries out the social order of the initiator of the test being conducted and the actual user of the information received — a federal agency (when carrying out operational investigative actions) or a legal entity or individual (when carrying out checks on personnel working or hired for work in a private company).
By recording a person's physiological reactions during the polygraph test openly and publicly, the polygraph operator comes to a conclusion about the presence (absence) of hidden information in the person being tested, but does not notify the latter about it.
What exactly, when and to what extent to inform the person being tested about the results of the completed polygraph test is decided by the end user — the initiator of the test.
Thus, the current «Instruction on the procedure for using a polygraph when questioning citizens» in the Ministry of Internal Affairs (clause 5.2) indicates that the person tested during the polygraph test «may be familiarized with the results of the survey. The familiarization is carried out by the Initiator».
The Russian Tax Police, in a similar departmental instruction (clause 5.11), establishes that «the question of the possibility of familiarizing the interviewed person with the results of the target SPFI is determined by the representative of the Initiator in each specific case individually and in agreement» with the polygraph operator.
A similar legal norm is also enshrined in the corresponding departmental instruction of the FSB, approved by the Ministry of Justice of Russia.
From the above it becomes clear that, being public in form, a survey using a polygraph leads to the secret receipt of information from a specific person.
Therefore, due to the above-mentioned ways of using the results of tests using this device, specialized polygraphs intended for the implementation of the psychophysiological method of «lie detection» are classified as STS for the secret receipt of information.
At the same time, taking into account the specific «open-closed» feature of the polygraph testing method, on the one hand, and its growing use in the private sector, on the other, it should undoubtedly be recognized that both this method and the specialized devices with which it is implemented belong to the class of so-called «dual-use technologies».
The practical application of polygraph tests — especially in the private sector — requires a reliable legal basis: the lack of legal regulation or its imperfection, as the US experience shows, inevitably leads to the violation of human rights.
Lessons from foreign experience.
The largest user of the polygraph for commercial purposes is the US. By the mid-1980s, more than 1.5 million different types of polygraph tests were already being carried out in the country in the interests of business.
However, along with the mass use of the polygraph in the interests of commercial security, public and trade union organizations declared the use of this method a «violation of human rights». It should be recognized that such statements were justified.
In a number of states (for example, in New York State) there were no laws regulating the use of the polygraph. This led to some «daring craftsmen» conducting several dozen 10-15-minute sessions daily, completely profaning the testing procedure.
Such hasty «research», on the one hand, and the desire of entrepreneurs to save money on comprehensive personnel work, replacing it with polygraph tests, on the other, led to the fact that a large number of people who passed the polygraph were unjustifiably denied work and complained to the courts about their employers.
The American Association of Polygraph Examiners (AAPE) was concerned that some operators, as well as employers, were undermining the reputation of the method and abusing polygraph tests by asking questions unrelated to the essence of the test, which was rightly regarded as an invasion of privacy.
The only way out of the current situation, according to AAPE President L. Marcy, could be the adoption of a single federal law that would stipulate the rules for the use of the polygraph and strict control over its observance.
The first step toward addressing this problem was the passage of a law in 1985 that gave the U.S. Department of Defense broad authority to use polygraphs to test more than four million military and civilian employees of the department who have access to classified information.
The second step was the passage of the Employee Polygraph Protection Act (EPPA) in 1988, which ended years of debate in Congress over the use of the polygraph in the non-government sphere.
The EPPA introduced significant restrictions on the use of the polygraph in business, clearly defining the sectors of private enterprise and the list of situations where such tests are permitted.
The US experience in the field of polygraph testing clearly demonstrates the role and necessity of a reliable legal basis for the practical application of this method. At present, this problem is becoming relevant for Russia as well.
Special technical means for covert information acquisition: the beginning of legitimate use.
The foundations of legal regulation of STS for covert acquisition of information were laid by the Federal Law «06 on operational-search activities».
According to the law (Article 6, Part 6), «it is prohibited» to use special and other technical means intended (developed, adapted, programmed) for covert acquisition of information by individuals and legal entities not authorized to do so by this Federal Law».
The law establishes (Article 6, Part 7) that «the development, production, sale, acquisition for the purpose of sale, import into the Russian Federation and export outside of it of special technical means intended for the covert acquisition of information, by individuals and legal entities not authorized to carry out operational investigative activities, is subject to licensing in the manner established by the Government of the Russian Federation».
It is well known that a legal norm begins to «work» only when it takes into account the requirements of real life and is based on a mechanism for its implementation.
Unfortunately, the above-mentioned article of the law, having come into effect, immediately «got stuck»: despite the ban «for all unauthorized persons», dozens of firms throughout Russia practically uncontrolled traded in equipment for the covert acquisition of information of domestic and foreign manufacture, the demand for which «due to the criminalization of domestic entrepreneurship» was constantly growing.
The problem of STS for covert acquisition of information is complex and affects the issues of their production (or import), sale (or export) and use.
Strengthening the restrictive function of Art. 6, Part 7 of the Law «On operational-search activities», the legislator, from January 1, 1997, established criminal liability for the «illegal production, sale or acquisition for the purpose of sale of special technical means intended for covert acquisition of information» (Criminal Code of the Russian Federation, Art. 138, Part 3).
In pursuance of RF Government Resolution No. 770, the FSB of Russia has developed the «Instructions for organizing and conducting special examinations when licensing the activities of individuals and legal entities not authorized to carry out operational-search activities» and the «Procedure for registering and recording special technical means» of the category in question. Both of these documents have entered into force and will be published in the press.
In accordance with the «Instruction» (clause 1.4), «licenses for the types of activities specified in the Licensing Regulations are issued based on the results of a special examination», which (clause 1.5) «includes a set of verification measures in relation to unauthorized persons whose activities are or will be associated with special technical means intended for the covert receipt of information, for the presence of conditions that may serve as grounds for issuing or refusing to issue a license».
A special examination is a broad complex of interrelated activities.
According to the «Instruction…», it includes, among other things, verification (p. 2.2, 4.1): «…b) information on the professional training of specialists who carry out or will carry out the declared types of activities related to special technical means…: c) characteristics of the declared special technical means intended for covert acquisition of information…».
When conducting a special examination (clause 2.1) «licensing authorities may engage qualified specialists whose activities are related by nature to work with special technical means intended for the covert acquisition of information», or (clause 2.2, part 2) «may subject special technical means intended for the covert acquisition of information, the unauthorized use of which may harm the security of the Russian Federation or its citizens, to additional (scientific and technical) examination (certification) on the basis of expert laboratories.
Obviously, STS for the covert acquisition of information must be strictly taken into account.
At the same time, «organizations, taking into account the specifics of their activities, may develop a separate procedure for registering and recording STS, subject to its agreement with the licensing authorities» («Registration Procedure», clause 26), and «licensing authorities have the right to periodically check the actual presence of STS among unauthorized persons («Instruction», clause 4.2).
Let us leave aside for the time being the problem of STS for covertly obtaining information in general and pay attention only to its particular aspect — polygraph testing.
What do the Law «On operational-search activities», RF Government Resolution No. 770 and other above-mentioned documents mean for domestic and foreign manufacturers and sellers of polygraphs, as well as users of the psychophysiological lie detection method?
Polygraph in Russia: rules of the «game» for qualified «players»
It follows from the listed documents that, firstly, only federal agencies — subjects of operational-search activities — can currently be buyers and users of polygraphs in Russia: the Ministry of Internal Affairs, the Federal Tax Service, the Federal Security Service, the Foreign Intelligence Service, etc.
Secondly, commercial firms involved in the production, import into the country, sale (resale) or export outside of it of polygraphs are required to have a license from the Federal Center of the FSB of Russia for Licensing and Protection of State Secrets or the relevant territorial security agency.
Does this mean that the use of the polygraph in the interests of commercial security has ceased?
Apparently not.
In our opinion, the introduction of the polygraph into the sphere of ensuring the security of private entrepreneurship is a normal and natural phenomenon.
Large banks, corporations, and recruitment agencies really need to use it, and this process can hardly be stopped.
The introduction of a strict ban on the use of a polygraph in the interests of business (as well as a number of other STS for covertly obtaining information) will do nothing except that this type of service will go underground with all the negative consequences that follow.
On the other hand, excluding the polygraph from the list of STS falling under the Law «On operational-search activities» will inevitably lead to voluntarism in the use of this device and the violation of human rights, the correction of which, as the experience of the US Congress has shown, can take decades.
When creating a state governed by the rule of law, unlike the construction of a multi-story building, unfortunately, it is not possible to use «large-panel construction»: the process is slow, and not every «brick» arrives on time and of the required quality.
This fully applies to the polygraph problem, where the emergence of legal acts lags behind the demands of the times: the Law «On operational-search activities» and other legal acts, having created conditions for strict control over the production, import and sale of these devices, left two most important aspects without any regulation — the use of polygraph tests by persons who already own these devices, and the establishment of the qualification status of specialists who carry out such tests.
The only way out of the current situation is the prompt development of relevant legal norms establishing clear criteria and a list of dual-use STS, as well as principles for their use outside the sphere of operational-search activities.
While the above issues are at the development and approval stage, the Federal Center of the FSB of Russia for Licensing and Protection of State Secrets, in accordance with the requirements of the Decree of the President of the Russian Federation of January 9, 1996 (See Security Systems, 1996, No. 1), will keep records of polygraphs currently located in Russia and their qualified use for the purposes of «lie detection».
Such a measure, in our opinion, will not only initiate the formation of a legal space for the applied use of a polygraph in the sphere of private entrepreneurship, but will also create a «qualification barrier» in front of self-proclaimed «polygraph testing experts», whose numbers are steadily growing in Russia.