Digital nechnology and criminal law: interaction issues

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Information has been valued in society at all times, because, as you know, who owns information, owns the world. In modern society, the topic of information, violation of information boundaries has become especially relevant with the development of the Internet, social networks, security in the banking sector, and state security. On the one hand, the development of information technology is undoubtedly a favorable trend in the development of society, which can be called one of the main directions of the progressive development of mankind. On the other hand, the problem of regulating new social relations arising in connection with digitalization arises, the issues of protection and safety of the subject of these relations come to the fore.
Thus, statistics show that in 2020 165 crimes were registered under Chapter 28 of the Criminal Code of the Russian Federation "Crimes in the field of computer information." In 2019, this figure was 129 crimes, and in 2018 - 202 [7]. Although it is possible to identify several aspects of the interaction of criminal law and digital technologies, and not limited to computer crimes. In particular:
• Criminal law as a security industry protects public relations in the field of information security.
- In particular, it protects the rights of citizens to confidentiality of personal information (for example, within the framework of Article 137 on violation of privacy).
- In some cases, according to the criminal code, a person is obliged to report certain information to the competent authorities, otherwise his inaction will be regarded as a crime (for example, Article 316 - concealment of crimes) or provide truthful information (Article 306 - knowingly false denunciation, Art. 307 - knowingly false testimony, expert opinion, specialist or incorrect translation).
• Digital technologies can be regarded as a method or means of committing a crime (for example, in case of fraud using computer technologies, Art. 159.3, Art. 159.6 of the Criminal Code of the Russian Federation).
• It is possible to create algorithms for qualifying crimes as an auxiliary mechanism for the law enforcement officer.
• Also relevant is the question of whether artificial intelligence can be criminally liable for causing harm as a subject of law.
• If we consider criminal law not only as a branch of law, but also as an academic discipline, then digital technologies can help in distance learning of criminal law in universities or in creating lecture presentations.
Since 2006, the federal law “On Information, Information Technologies and Information Protection” has been in effect in the Russian Federation [2]. In paragraph 7 of Art. 2 of which it is stated that the confidentiality of information is a mandatory requirement for a person who has gained access to certain information not to transfer such information to third parties without the consent of its owner.
In the Criminal Code of the Russian Federation, several articles can be distinguished that correspond to this norm, protecting its observance by participants in legal relations. These articles primarily include structures in which information is the subject or means of committing a crime. So, part 1 of Art. 137 "Violation of privacy" constitutes a criminal act to unlawfully collect or disseminate information about a person's private life that constitutes his personal or family secret, without his consent, or to disseminate this information in a public speech, publicly displayed work, or in the media. Article 138 provides for liability for violation of the secrecy of correspondence, telephone conversations, postal, telegraph or other messages, and Article 155 "Disclosure of the secrecy of adoption (adoption)" provides for liability for disclosing the secret of adoption against the will of the adoptive parent, committed by a person obliged to keep the fact of adoption (adoption) as an official or professional secret, or by another person for mercenary or other base motives [1]. In these structures, information is also the subject of a crime and its illegal disclosure is protected by the norms of the Criminal Code of the Russian Federation.
Statistics show that these trains are committed by citizens in considerable numbers. In particular, in 2020, under Part 1 of Art. 137 were convicted of 169 people, 70 of whom were subjected to compulsory medical measures due to insanity, and 63 were sentenced to a fine as punishment. According to Art. 138 and Art. 155 statistics are more modest, in 2020 under Art. 138, 29 people were convicted, and under Art. 155 - 3 people [7]. In these compositions, the public danger of a crime is seen by the legislator precisely in connection with the illegal dissemination of certain information to third parties.
In addition to these compositions, one can single out defamation (Article 128.1, Article 298.1), as well as compositions that include a threat. After all, a threat can also be viewed as transmitted information, only in this case it acts as a means of achieving a criminal result. In particular, in rape (Art. 131), extortion (Art. 163), robbery (Art. 162), coercion to commit a transaction (Art. 179) and other elements, the threat is a mandatory sign of corpus delicti. Of course, one cannot fail to note Art. 119 and Art. 296, in which, as in truncated compositions, the threat is considered as an act constituting an obligatory sign of the objective side of the crime.
Digital technologies have also touched on such corpus delicti as fraud. In 2012, Article 159 was supplemented, including Art. 159.3 "Fraud using electronic means of payment" and Art. 159.6 "Fraud in the field of computer information." In Art. 159.6 information acts as a means of committing a crime, since the disposition states that in this case, fraud is committed by entering, deleting, blocking, modifying computer information.
Digital technologies can also help in law enforcement when an act is classified as a crime. Back in the 90s, scientists from the Faculty of Law of Moscow State University were developing an algorithm for qualifying crimes with the use of weapons. The question of building algorithms for the qualification of certain crimes, in our opinion, is closely related to the consideration of the Criminal Code of the Russian Federation as a system, the establishment of general and individual characteristics of various elements of a crime. The urgency of creating such algorithms is also seen in the fact that they will fully take into account the provisions of the resolutions of the plenum of the RF Armed Forces, which will also contribute to the correct and fair choice of the criminal law norm. For clarity of consideration of what we are talking about, we will try to build an algorithm for qualifying an unfinished crime. Although such algorithms can be created for each chapter of the Special Part of the Criminal Code of the Russian Federation. The algorithm is based on the principle of questions, which are arranged according to the content according to the principle “from general to particular”.
1 question: Has the person performed all the actions that are part of the objective aspect of the relevant corpus delicti?
If yes - then the crime is over - we qualify it under the article of the Special Part of the Criminal Code of the Russian Federation.
If not, we ask 2 question: the person did not complete the crime of his own free will?
If yes, then there is a voluntary renunciation of the crime.
Here there will be the following 2 a) question: is there a different corpus delicti in the actions of the person?
If so, then we are prosecuted for a different composition.
If not, then we are not prosecuted.
If the person did not complete the crime against their will, then ask
3 question: has the person begun to fulfill the objective side of the crime?
If yes, then the act is an attempt to commit a crime. We bring to criminal responsibility under the article of the Special Part with reference to Part 3 of Art. 30 of the Criminal Code of the Russian Federation,
If not, the act is preparation for the crime.
Question 4: To what category does the crime belong to which the preparation was carried out? If it falls into the category of small or medium severity, then we are not prosecuted. If to grave or especially grave - we bring to criminal responsibility under the article of the Special part with reference to Part 1 of Art. 30 of the Criminal Code of the Russian Federation. Thus, following an algorithm built from questions, you can come to a specific answer to the question of the correct qualification of the act.
In connection with the increasing role of digitalization in the life of society, representatives of the general theory of law raised for discussion the urgent issue of the possibility of artificial intelligence to be a participant in legal relations, that is, to have rights and bear obligations. In particular, the scientist P.M. Morkhat names the existence of moral rights, social potential and legal convenience as the main prerequisites for endowing certain persons with legal personality [3]. One of the ways to solve the problem of legal personality of "intelligent robots", the researcher puts forward the concept of the so-called "electronic face".
The question is whether irreversible process. Therefore, you need to understand how to live in this world and whether we generally have our own plans or are we ready to concede reality to digital developments.
In the community of experts in the digital world, there is a perception that the brain is a computer that processes information using a set of certain algorithms. Some technological scientists are convinced that sooner or later they will be able to recreate its device. Tatiana Chernigovskaya does not share this position. In her opinion, even if we compare the brain with a computer, then at least not with one, but with several different types of machines. Some part of the brain may indeed be responsible for accurate calculations and algorithms, but intuition and metaphorical thinking play an equally important role. The neuro-linguist recalled the statement of Albert Einstein: the scientist argued that the scientific conclusion is only the final of logical work, the main part of which was by no means through calculations. The main thing that is important to understand today, says Professor Tatiana Chernigovskaya, is that information without people has no value. A person is always needed who could interpret it [4].
Researcher R. Kashargin notes that a participant in public relations will only become a full-fledged subject of law (a participant in legal relations) when he is endowed with such an ability by law (when the law elevates him to the rank of a participant in legal relations, he will be able to be a subject of law). The regulation of robotics issues must have an international origin. To recognize the equal importance, and even more so the priority of the team of a technical device in comparison with the decision of a person, it is necessary to rethink not only theoretical concepts, but also the understanding of the role of technology in the life of mankind in general. At the same time, the key principle of robotics legislation is safety [5].
In addition to considering the question of whether artificial intelligence can be a subject of law, it is no less important to consider the problem when, due to the fault or the reason generated by the artificial intelligence, an offense occurs, harm is caused. In 2018, Uber tested a self-driving car for the first time and killed a cyclist who jumped onto the road in the dark. As for the driver of the unmanned Volvo XC90, who is needed as a safety net for tests of unmanned technologies, he did not notice the dead woman until the moment of the collision, without having time to take a collision avoidance maneuver. As a result of the incident, the software developers of the machine were brought to justice. In connection with the incident, a survey was conducted on the possibility of boycotting unmanned vehicles. Most of the survey participants (105 people) said that this situation would not lead to such consequences [6].
As part of the development of digitalization of society, students of the Ural Federal University are developing the concept of the so-called "smart city". The development of civil society and local self-government, the creation of a “smart society” can be singled out as one of the most important objects of management activity for the creation of a “smart city”. The main tasks of this direction will be: the creation of new mechanisms of interaction between government institutions and the local community, the formation (by analogy with electronic government) of a platform for interaction with citizens through information and telecommunication technologies, the inclusion of information resources of local governments in a single urban digital space [8]. Perhaps this concept can also affect the reduction of the crime rate in such cities, since the suppression and detection of offenses will be possible with the help of an improved system of surveillance cameras, as well as more efficient interaction of citizens and law enforcement agencies.
During the pandemic, the question of the possibilities of distance learning arose. Thus, digital technologies are also used in the study of criminal law as a legal discipline in the preparation of lawyers. In many ways, the distance learning system, introduced everywhere for forced reasons, has considerable advantages. In particular, the system implies the student's independent work, activates his potential for searching, obtaining and mastering the necessary knowledge on the Internet. It is also worth noting the savings, both in time and money, which were spent on the acquisition of various training materials. The work of the teacher was also optimized, since, for example, video lectures recorded on-line can be listened to at any time convenient for the student and the desired number of times. Researchers of the practical benefits of digital learning note that the transition to digital education is a significant stage in the creation of Internet technologies. Now science is developing at a high speed, new structures appear every day. Digitalization of education will help law students better navigate the information world in the future.
However, the disadvantages of the online image

About the authors

Elena V. Shchelkonogova

Author for correspondence.
Email: shelkonogova-ele@mail.ru

Candidate of  Law Sciences, Associate Professor of the Department of Criminal Law

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