The Internet, E-mail and the World Wide Web (OCTOBER 1998 REPORT)
I. The Internet, E-mail and the World Wide Web
A. Electronic Interception or Surveillance of The Internet Communications by the Security Services or Other State Agencies
1. Do current laws (for example, wiretapping or electronic surveillance laws) specifically talk about interception of the Internet or e-mail communications?
Article 31 of the Constitution of Ukraine adopted on 26 June 1996 states that „the confidentiality of everyone’s correspondence, telephone talks, telegrams, and other communications is guaranteed. Exceptions can be made only by court under the circumstances predetermined by law with the purpose of preventing a crime or establishing truth in investigating a criminal case if it is impossible to get information by other ways“.
The procedure of carrying out such exceptional actions is regulated by the Ukrainian Law „On operative and detective activities“ adopted on 18 February 1992 with changes and amendments adopted during 1992-1993.
Article 9, Sect.8 of this Law grants the right to the organs carrying out the crime investigation activities to tap communication channels and use other technical facilities to obtain information and to intercept messages.
Besides, special units of the MIA and USS for struggle with organized crime have the permission, according to Article 15 of the Law „On organizational and legal foundations of struggle with organized crime“, to additionally use special technical facilities in the following cases: control, recording and documentation of talks and other actions of people when there are grounds to believe them connected with the organized crime.
Factual data recorded by special organizations with the use of technical facilities can be used as proofs in the trial.
Any special law regulating interseption of the Internet or e-mail communications is absent.
2. Is there discussion or are there concrete proposals concerning electronic surveillance and interception of the Internet communications by state agencies? If so, please summarize the proposal, who made it, any reaction to the proposal, and the current status of the proposal.
See the answer in part D.
B. Censorship or Licensing the Internet by Security Services or for National Security Reasons
3. Do any court decisions or laws explicitly address censorship of content on the Internet for reasons of national security?
Such court decisions or laws are absent.
4. Are there current proposals or discussions concerning censorship of political speech on the Internet for state security or related reasons? If the state is arguing that the Internet is somehow different and more dangerous than other forms of communication, such an argument is especially likely to be made about national security issues.
Proposals and discussions concerning censorship of political speech on the Internet for state security or related reasons are absent. Ukrainian state officials prefer, in contrast to Russia, first to act without public debate and then to permit the debate if it is necessary.
C. General Technological or Licensing Restrictions
5. Even when no direct censorship or surveillance is being proposed, are there plans, proposals or regulations that would require licensing of all the Internet service providers in a way that would give state agencies the power to intercept or censor all the Internet and e-mail communications? Are there proposals that would require the Internet infrastructure, like telephone lines, to be built in a way that would enable state interception or censorship of the Internet communications?
It is impossible to prove by demonstrating documents that the state organs intend to censor or to intercept messages sent to the Internet with the aid of organizational or technical means, but there are oblique proofs. Specialists state that the infrastructure of the Internet, in particular, of telephone lines is made in such a way that interception is possible. We may not pass the fact (it was made public in The Internet) that all the employees of Ukrtelekom in Kiev, who operated with The Internet were sacked and replaced with people who have access to classified material. One may interpret in the same way the Concept of Technical Information Protection (TIP) adopted in the end of 1997 and the attempts at regulating the information market which are described in part D. The Concept expresses regret that „due to the absence of national information technologies able to stand competition we have to use appliances of foreign or joint production that do not ensure the information protection“ the creation of such appliances is given the top priority in developing the TIP.
D. Role of the Security Services
6. What is known about the role of the security services in connection with the Internet?
Before 1995 The Internet developed without any participation of the state. In May 1995 National Agency on Informatization (NAI) was created. (The latter word „informatization“ does not exist in Western languages since the denotate does not exist; such words as „informatization“, „automatization“, „privatization“, etc. denote a fruitless and noisy state campaign for implementing the corresponding entity. The only American analog of this class of words is, perhaps, Prohibition). NAI must coordinate the work of ministries, other central and local agencies of the executive power, as well as enterprices, offices and organizations, devoted to creation and development of all state informative networks, systems and databases (on national, regional, branch and inter-branch level). NAI must also prepare normative acts regulating informative relation and development of informative space. NAI has their representatives in the Crimea, all 24 regions, Kiev and Sebastopol.
The creation of NAI would not harm anybody if this organization were an equal participant of the information market. But NAI demonstrated two dangerous tendencies: the wish to establish state monopoly at the information market and the tendency to restrict the distribution of information for reasons of state security and protections of morals.
In Article 17, Section 1, of the Constitution of Ukraine treating the national security of information exchange the latter is declared to be „the duty of all Ukrainian people“. It would be more reasonable to state that the duty of all Ukrainian people should be preventing the government from interfering into the information exchange under the pretext of providing security. This interference has a long history.
In January 1997 the Supreme Rada adopted „The Conception of the national security in Ukraine“. Among fundamental principles of the security support many good things were listed, such as observance of human rights, superiority of law, public oversight over the military and other structures in the system of providing the national security. The Law mentioned possible threats to the national security caused by insufficient control over information: „information expansion from other countries, leakage of information containing state secrets and other secrets mentioned by the corresponding law, as well as confidential information owned by the state“. It is worth noting that confidential information may be owned by natural or juridical persons, but not by the state, which follows from the Law „On Information“, Article 30. Among the main remedies used for providing the natural security in the information sphere the Conception mentions complex measures aimed at protecting the Ukrainian information space, at entering the world information space and at removal of negative tendencies of violating the Ukrainian information space, as well as at the development of necessary facilities and modes of operation (retrieval, storage, distribution and use) with socially important information, and at the creation of a well-developed infrastructure in the information sphere.
In April 1997 Parliamentary Readings were held devoted to the topic „Freedom of Speech in Ukraine: present state, problems, prospects“. The participants remarked: „The Internet may become a threat to state secrets and confidential information of citizens, besides, it can increase the dependence of the national information space on foreign-produced information and alien information policy“.
On February 4, 1998, the Supreme Rada adopted the Law „On the national program of informatization“. The Law has two main targets; one of them is to provide the national security. This function has to be fulfilled by a central state agency appointed by the Cabinet of Ministers. On the same day the detailing document „The conception of the national program of informatization“ was issued. The document affirmed that Ukraine should overcome her backwardness in the information exchange by following the state policy of informatization. Having read this conception, one can easily understand that the Government is convinced that it must firmly control the development of the information market.
A day before the President issued the Edict on creating the Commission of information security. Aleksandr Below, General-Lieutenant of the Ukrainian Secret Service, was appointed as the Head of the Commission. Judging by press comments, he has the reputation of an intellectual and serious analyst. In an interview the General stated that the Commission would do all possible not to harass free access to information, except in cases stipulated by law. Aleksandr Matov, the Chairman of the National Agency on informatization at the President’s Administration, gave a more detailed statement: any country must control the valuable information outflow, so the measures to be taken have the only purpose of „ordering“ network communications, as it is highly irregular when communications within a country are carried via foreign servers. Mr. Matov pointed out that such discipline would concern only state agencies. He added that it would be undesirable if this campaign involved Ukrainian providers.
On April 22, 1998 President of Ukraine Leonid Kuchma undersigned the Edict No. 346/98 „On some measures concerning protection of state interests in the information sphere“. According to point 1 of this edict, the State Committee of communications of Ukraine shall procure the exit to foreign networks only via the networks of the enterprises (operators) „Ukrtelekom“, „Ukrkosmos“, „Infokom“. According to point 2, ministries, other central and local agencies of the executive power, as well as enterprises, offices and organizations that include secret regime subunits shall transmit their data only through these three enterprises.
So, at a first glance, the campaign concerns executive power bodies, local administrations and state structures containing secret-protecting departments. We hope that the edict of 22 April will result in the separation of The Internet users into nonstate and state sectors, with imposing special operating modes on the latter only. However, even assuming this optimistic interpretation, in my opinion, the Edict contradicts to the Constitution of Ukraine and can be contested in the Constitutional Court, since it violates the right to distribute information freely (Article 34). The Edict also violates Article 10 of the European Convention on human rights which Ukraine is obliged to obey. Besides, the Edict rudely violates Article 42 of the Constitution that stipulates the freedom of the entrepreneurial activity and forbids monopolies. As one of researchers noted bitterly, „the consequence of enforcing this edict will be the fourth wave of emigration of Ukrainian high-tech professionals to a country where the authorities will not stand in the way of their favorite work. The work that does not bring any dividends in our country, the work, to which they devoted all their lives“.
Such fears are not groundless. To be convinced one can read the article written in „Uriadovyi Kuryer“ of 12 February 1998 by Pavlo Mysnik, the Chairman of the State Committee on the protection of state secrets and technical protection of information. He writes:
„Information in the modern world is valued exceedingly high, since it makes the initial capital that can yield unforeseeable profit in the future. It is painful to watch how the information is spilt, and sometimes the opportunities contained in the information are being lost. In this aspect the drain of scientific information especially troubles me. Research projects and ideas of our scientists are bought for a song by foreign grantors. The total outflow of information is dangerous to our state now and leaves us without future. That is why the administrations of the National Academy of Sciences, ministries and other bodies that control research institutions must be interested whither leaks the information greatly needed by our state.“
At the same time NAI is preparing some drafts of law aimed at protecting the Ukrainian information space: „On informative sovereignty of Ukraine“, „On controlling security in data transmitting networks of Ukraine“, as well as other drafts regulating information networks and systems. Alas, drafts of laws, edicts and similar legal documents are never publicly discussed, the society faces accomplished facts and is appealed to obey the newly baked laws. The state ignores the society consciously and unconsciously. Instead of the mentioned drafts and amendments one would rather expect, from the point of view of human rights, not prohibitions, but prohibitions on the restrictions of the access to international networks for NGOs and private persons. Alas! Attempting to protect information security, the law-writers impose stringent restrictions on the access to information. They do not follow the principle adopted in civilized societies: „deregulate as much as possible and regulate as little as necessary“.
We collected information on a status of informative market in Ukraine and prepared an analytical report on probable consequences of this Edict. Report has been published in a number of printing and electronic mass-media, in particular, in „Den“, the most solid newspaper of Ukraine, and „Business“, a well-known weekly. We organized public hearings that was filmed, the corresponding TV-program went on air four times. We also prepared and directed a letter to the Ukrainian Ombudsperson. This letter has been used as a base for application by Parliament Fraction of PDP (People Democratic Party) to the President and the Constitutional Court. In this moment we can say that the Edict has not been come inforce yet.
It should also be noted that on July 22 President Leonid Kuchma signed a new Edict No.811/98 „On perfecting the procedure of organizing organizational and structural changes in the sphere of insuring information security of the state“, in which he ordered that the said changes „may be realized by bodies of the executive power only after the approval of the Council of national security and defence of Ukraine“. One may conclude from here that Edict No.346/98 was not approved by the Council and is null and void.
Summing up, one may conclude that the information security is in the focus of Ukrainian authorities, so the free access to The Internet in Ukraine is threatened.
II. Right to a Fair Trial when Official Secrets are Involved
7. Are there any post-1989 court decisions or statutes concerning the right to fair trial in a criminal case involving national security secrets? If so, please describe them and attach a copy.
Such decisions are absent.
8. Describe any well-known criminal cases where these issues have arisen.
9. Is there any other current discussion or controversy regarding the right to a fair criminal trial in cases involving national security secrets?
10. Have there been any trials where criminal charges were brought against officers or former officers of the security services and the charges involved classified information? If so, how was the information handled at trial? Was it made public, or was it kept secret from the public or from the defendant himself? did the judge write any opinions about this issue?
Very few facts of the disclosure of state secrets and of the corresponding trials have been known. Pavlo Mysnik, chairman of the State Committee on state secrets and technical protection of information, said at the press conference that one state officer was fired and another was punished disciplinarily for improper lifting the secrecy. In the same interview P.Mysnik said that newsmen do not inflict significant damage on state secrets. Concerning some materials printed in the newspaper „Politika“, state experts in protecting state secrets came to the conclusion that the published materials were not secret: „they concerned ways and methods of informing top executives on concrete reconnaissance“. The investigation of the circumstances under which information making a state secret is made public is under the USS competence.
Upon the whole, one may say that the attitude to publications concerning national security and secrets is nowadays rather lax. For example, MPs often comment some problem discussed at a closed meeting of the Parliament or its committees in mass media, including foreign ones. According to the newspaper „Zerkalo nedeli“ („Weekly Mirror“), secret information connected with the preparation on the state-level negotiations with foreign representatives was repeatedly made public in mass media, although this information had to be disclosed only in the course of the negotiations. Several examples may be given here.
We know only two cases connected with disclosure of state secrets and national security.
1. Nikolay Savelyev, a Lviv newsman, published an article in the newspaper „Moloda Galitchina“, where he mocked at the instruction on the recruitment of USS stool-pigeons requiring that they must be „nationally conscious“. Savelyev and the editor-in-chief were interrogated in the USS in connection with this article. Kharkiv Group requested the Lviv USS, asking to explain which was the legal base of this interrogation, and they answered to us explaining that a criminal case was started on the disclosure of the secret document, and that they were looking for the channels of the leak from the USS. Later we requested them about the results of the investigation. We got no answer, but we know that the newsmen have not suffered. Probably, criminal investigation was closed.
2. The newspaper „Politika“ (No.23 of 18 June 1997) in the article „A Spy Novel“ informed that the Main Intelligence Directorate (MID) of the Ministry of Defence of Ukraine carry out intelligence activity on military NATO units based in Turkey and the US military units based in Europe. To support the point NATO tables for alarm systems, places of headquarters of Turkish, American and NATO units and their radio bearings were printed. It is these tables that hang on the walls of the Separate radiotechnical communication and control brigade of the Odessa military commandment. The publication also gave detail on carrying out radio reconnaissance by servicemen of this brigade of the units contained in the tables.
The reaction of the MID was lightning fast. The next but one day after the publication at the urgently gathered press conference the military rejected point blank the published facts, calling them fantasy and paid publication. The acting MID head General Vladimir Legominov persuaded journalists that the tables were obsolete by seven years, were not secret and had no reconnaissance value, and that the coordinates were determined from satellites which Ukraine has not got.
Nonetheless in July 1997 a criminal case was started on divulging a state secret; the case was also secret. Experts from the State Committee of secrets found the published materials secret and damaging the defence interests of the country. After a six months investigation carried out by the USS the man who had given the information to the newspaper was found. He appeared to be a 22-year-old inhabitant of Kiev Aleksandr Ishcheikin who had served in the brigade mentioned and had been demobbed in May 1997. In a train on the way home he told a newsman about his service. The newsman paid him and gave him a photo camera. The ex-serviceman returned to his unit, allegedly for a recommendation, but actually for photographing the tables.
Since Ishcheikin fully repented and cooperated with investigators, he was not detained before the trial. Since he could not hire an advocate, having no money, a colonel of KGB, Valentin Nazarov, as having access to secret documents, was appointed his advocate. The trial was closed and the verdict was quite liberal: three years imprisonment suspended and 680 Gr of the fine for divulging a state secret. In a separate document the court reprimanded the military commandment about the low level of the discipline and secret protection in the brigade. The responsibility for disclosure of state secrets is regulated by Article 67 of the Penal Code and it lists such punishments as encarceration from two to five years, or, if the disclosure had grave consequences, then to the term from five to eight years. This Article may be applied only to those persons who learned about the state secrets in the course of their official activity. There are no laws that can be applied to persons who are not state officers. There are no other prohibitions on the publication of materials concerning the national security.
III. Recent Developments
11. Have there been any major developments since the reports on Security Services, Wiretapping, Parliamentary Oversight, and Access to Information were prepared? Specifically, have there been any new laws or major court decisions on any of these subjects since you wrote the reports? If no new law has been adopted, is the Parliament considering any new law on any of these subjects since the reports were prepared?
A. Security services. Parliamentary oversight
During 1997-1998 the strain between the legislative and executive branches of power, as well as between various financial-industrial groups and related political sides was steadily increasing. This opposition was, in particular, expressed in the activities of the President and the Supreme Rada of Ukraine to grab more levers of power, to get greater control over mass media, especially TV and radio, and to distribute the information blaming their main political rivals (mutual accusations in corruption, misuse of power and the like). The struggling sides tried to use the security services which, in their turn, tended to stand aside and not take the part in the political struggle. However, on the eve of the parliamentary election in March 1998 the organs of the executive power increased the pressure on the prosecutors’ structures, the Ministry of the Interior and the USS in order to use them for the removal of the opposition. It is the unwillinnless to take part in the political struggle that explains sacking the USS head Vladimir Radchenko on April 1998. He was replaced with Leonid Derkach, the former head of the Customs. The latter is an old friend of President Kuchma (when Leonid Kuchma was the party organizer at Yuzhmash plant, Derkach was the Head of the First department there). Along with Radchenko, ten out of 25 heads of regional USS Directorate heads were replaced during April, the Collegium of the USS was also substantially cleansed. Another explanation of these replacements is that the President sacked supporters of the former head of the USS and later the Prime-Minister Evgeniy Marchuk, which will be one of the main rivals of Kuchma in the coming presidential election.
The President’s administration did their best to prevent the appointment of Marchuk as the Chairman of the Committee of Defence and National Security, one of whose functions is the parliamentary control over security services. The Committee was headed by Grigoriy Kriuchkov, a member of the communist party of Ukraine, the former first secretary of a region committee and the former head of a department of the central committee of the communist party, a man without experience of work in special services. The Committee now abounds in representatives of left parties and members of Soviet special services.
The special services are used now for starting criminal cases against the firms and businessmen who support the opposition. So in the Crimea, the entire party was beheaded — the Party of the economical restoration of the Crimea, which is a collective member of the democratic party of Ukraine. The self-ruling bodies in Yalta and in Odessa was displaced, with applying cruel and illegal methods of investigation. General Prosecutor’s office was used for starting criminal cases against journalists of the opposition. The newspaper „Politika“ made public Directive No.04/122-98 of 13 May 1998 classified „secret“ and directed from the General Prosecutor’s office to prosecutors of some districts of Kiev with the suggestion to check materials passed from the President’s Administration and concerning the publication by the newspapers „Pravda Ukrainy“, „Vseukrainskie Vedomosti“, „Politika“, „Selskie Vesti“, „Tovarishch“, and „My“ of the information which discredits, compromizes and insults the President of Ukraine as a citizen and as the Head of the state. The letter contains the directions to start administrative or criminal cases according to the results of the checking.
Representatives of the opposition also assert that the special services are used for intimidation and even for extermination of inconvenient persons. So, in the end of July 1998 an attempt at the life of Sergey Odarich, the Chairman of the „Ukrainskaya Perspektiva“ fund and the editor-in-chief of the newspaper „My“, was committed. A stranger came up to him near his home and promised that Odarich will be killed if he does not stop his political activities. Odarich answered that they had nothing to speak about and went away. The stranger fired and hit Odarich on the hip. In Odarich’s opinion the idea was not to kill him, but just to intimidate. The only party interested in him, he added, is President Kuchma, since he and his newspaper have no other enemies (the newspaper „Den“, No.143 of 30 July 1998).
Sergey Golovatyi, the former minister of justice, close to the political union „My“, said in his interview on the radio Liberty that within the structure of special services there is a special unit whose duty is to exterminate those who are disliked by the top officials. As we have observed, there was no official reaction on this sensational disclosure.
B. Wiretapping
Section 2 of the Directive of the Supreme Court of Ukraine, No.9 of November 1, 1996, „On referring to the Constitution in administering justice“ contains the following statement: „A warrant for entering one’s home or some other estate, or for stopping one’s correspondence, or for intercepting one’s correspondence in postal or telegraph offices, or for any other interception of information from any communication channels is given by court only“. On the results of considering materials about giving a warrant, which is done by the court, with keeping the investigation secret, a procedural resolution is taken. On the basis of this directive, a warrant for wiretapping is now given not by a prosecutor, as it is stipulated in the law on Operative and Detective Actions (ODA), but by the court. However, the law on ODA has not been modified, the Penal Procedural Code contains no directions on the procedure of obtaining a warrant for wiretapping, so it seems that this procedure is not based on law, but is regulated by sum sublegal, perhaps secret orders in the special services that carry out ODA.
It should be also noted that the list of the ministries, agencies and departments that carry out ODA has been substantially increased. The tax inspection has obtained the right for ODA, and undoubtedly the National Bureau of investigations, which is being created now, will obtain it too. It is also worth of noting that the new edition of the Ukrainian law on the tax inspection grants it all the rights, which agencies of the Ministry of Interior have, without stipulating, in fact, any responsibility for violating law. The tax militia performs all the functions of the crime investigation and court: it investigates crimes connected with dodging tax, serves as a prosecutor at court, acts as an advocate, takes a court decision and even mercy the accused by deciding to keep a case from the court.
When the law on the Directorate of the state guard was considered the then Head of the USS General-Colonel Vladimir Radchenko said in his interview to the newspaper „Kievskie Vedomosti“: „Nowadays everyone wants to use the ODA, and it is difficult to understand who eavesdrop on whom. Do we have a police state? In the USS this business is legally grounded. We have created a system of measures preventing any opportunity for the authorities to use investigation methods without sanctions. But I am not sure that such control is set in other services. Thousands of non-government security services have been created in the country, which work without control and without responsibility. Recently we have detained persons who had ID almost identical with those for USS men. Regretfully, even some of our generals signed these documents. We are directing the materials to the prosecutor’s office.“ („Kievskie Vedomocti“, 11 February 1998).
C. Access to information and state secrets
During 1997-1998 the access to decisions of the central administration became much easier due to the wide distribution of the database „Pravo“ which is maintained by the information department of the Supreme Rada Secretariat. This database is cited also in the Internet (in the Ukrainian language). It contains the laws and decisions of the Supreme Rada, orders and other documents of the Cabinet of Ministers and all state committees, presidential edicts, resolutions of the Plenum of the Supreme and Constitutional courts. It should be noted that this base is available commercially, the first contribution equalling $ 300 for one copy.
However, for man in the street the objective information on administration activities became much less accessible, because, first, practically no independent mass media remained in the country, all of them, especially TV, are very rigidly controlled by various political forces, and, secondly, citizens are too poor to subscribe to newspapers and magazines. Thus, many have returned to the popular sources of information of the Soviet period, i.e. radio stations Liberty, BBS and the Voice of America.
Persecutions of and criminal attacks on journalists have become more frequent. Two newsmen were killed in the direct connection with their professional activities. This year during the first eight months 39 crimes against journalists were committed, and only 16 were disclosed. In September the law „On the state support of mass media and social protection of journalists“ was adopted. First of all the law puts the stress on the production of information in the state Ukrainian language. Besides the law grants some guarantees for the protection of journalists from the state interference into their professional activities, as well as a number of social privileges for them. Actually the law is not realized, but if it did, it would hinder the freedom of expression.
The law „On the procedure of making public the information on activities of state power bodies and local administration in Ukraine by mass media“ was adopted simultaneously with the law on the state support of mass media. This act may be interpreted as signing a contract between administration bodies and editorial boards. In particular, the law prohibits anyone, except officially sworn translators, to translate official documents from Ukrainian to any other language. It is noteworthy that the alleged contract keeps editors under pressure, and the prohibition to translate kills two birds with one stone: it supports the state language and hinders distribution of the official information.
The strong administrative pressure on the mass media oppositional to the President and the government, mostly controlled by the party „Gromada“, also restricts the access to information. One of the tools for this pressure became libel claims from government officials with unrealistically large fines. Regretfully, the courts usually satisfy the claims, thus making bankrupt both the newspaper and the newspaperman. Two of the newspapers controlled by the opposition were stopped at all : „Pravda Ukrainy“ was banned by the administrative decision of the Ministry of Press and Information and „Vseukrainskie Vedomosti“ due to financial difficulties after satisfying a nonsensical libel claim with a fantastical fine.
Generally speaking, restrictive tendencies are becoming stronger and stronger. The notorious „first departments“ at research and design institutes have galvanized to the long-forgotten activity. The Cabinet of Ministers adopted the conception of technical protection of information. Two more documents have been adopted: „A frame directive on a secret archive department in state agencies, enterprises, establishments and organizations“ and „Instruction on the selection and transfer of secret documents for archive storage“. A number of similar documents have been prepared, in particular, amendments and additions to the law „On state secrets“ and „Instruction on introducing the regime of secrecy in state and local administration bodies, in enterprises, establishments and organizations in Ukraine“. This instruction has been already classified since, according to its authors, „this instruction completely uncovers methods and forms of protecting secret information in our state“. This instruction closely follows the corresponding instruction that regulated questions of secrecy in the former USSR, many positions are borrowed verbatim. Now the draft is being approbated in ministries, agencies and organizations which deal in secrets. The draft has been already approved in the part dealing with state secrets. Nothing is known about the adoption of this draft by the Supreme Rada of Ukraine. The draft of another law is prepared where the administrative responsibility is stipulated for violating the law on state secrets. All this, as usual, is done without any public debate: the legislative activity in the country is closed from outsiders.
It is noteworthy that the Cabinet of Ministers of Ukraine has not worked out the „Instruction on the State Expert in questions of secrets“, as it was prescribed by the resolution of the Supreme Rada of Ukraine „On the order of introducing the law "On state secrets"“ as long ago as in the beginning of 1994. And according to Article 8 of this law „the State Expert in questions of secrets bears full responsibility for lawful and well-grounded decisions to relate some information to state secrets“ and that the above-indicated Instruction „must be approved by the President of Ukraine“. Our requests directed to the State Committee for protection of state secrets and technical protection of information (Comsecret in Officialese) about who personally is the State Expert in each ministry and agency were left unanswered (as, by the way, all other requests directed to this committee). The situation with the publication of changes and additions into the List of Information being State Secrets (LISS) is scandalous. According to Article 10 of the law on state secrets and the „Instruction on the procedure of forming and publishing the LISS“, these changes and additions shall be published not later than three months since the day of the reception by Comsecret of the corresponding decision of the State Expert: records to the LISS must not contain state secrets. Nonetheless, almost all the changes introduced to the LISS after the first publication of the latter on 18 August 1995 have not been published. In the above-mentioned database „Pravo“ they give numbers and dates of the orders in Comsecret on introducing changes to the LISS, but the very texts are omitted as being secret.
The concept of the Technical Information Protection (TIP) deserves a special consideration. The TIP is defined in the concept as an activity aimed at the provision, by technical means, of the priority of access, of the integrity and accessibility (i.e. impossibility to block) of the information which contains state secrets and other secrets determined by law, as well as confidential information: besides, it must ensure the integrity and the accessibility of the open information, important for individuals, the society and the state. This definition makes precise one of the principles of shaping and conducting the state policy in the TIP sphere: „it is necessary to protect by technical means the information which contains state secrets and other secrets determined by law, as well as the confidential information which is the property of the state, the open information which is important for the state, regardless of where this information circulates, and also the open information which is important for the society and the state, if this information circulates in the channels in the state power organs and the local self-administration, in the Academy of Sciences, in the armed forces or other paramilitary units, in the agencies of the Ministry of the Interior, in state enterprises, in state establishments and organizations“. The law unambiguously mentions only the notion of a state secret out of all above-mentioned entities. No „other secrets determined by law“ are mentioned in any Ukrainian law. The concept of „the confidential information which is the property of the state“ is an obvious nonsense: after Article 30 of the law „On information“ confidential information can be property of natural and juridical persons, but not of the state. The concept of „the open information which is important for the state, regardless of where this information circulates“ is hopelessly fuzzy, the more so that it is followed by a similar concept with a more precise list of the subjects of the information exchange. All these concepts are so poorly defined, that the decision what information should be protected will be taken by state officials according to their reasons, with no restriction on any arbitrary actions. The concept plans to install TIP units at any office where the information should be protected. We believe there are serious grounds to fear that the realization of this concept will substantially restrict access to official information.
In 1997-1998 the law regulating the protection of confidential information was somewhat modified. The Constitutional Court of Ukraine (CC) made more precise Article 23 of the law „On information“ concerning the protection of confidential data. In this article the information on a person is defined „as the set of documented or publicized data on the person“. The main personal data are: nationality, education, family status, religion, health, as well as address, date and place of birth. The sources of the documented information on a person can be documents given to the person and documents signed by this person, as well as the data collected by state and local administration bodies gathered within their rights. Article 23 prohibits collecting information about a person without the person’s consent, except in the cases stipulated by law. Each person has the right to study the information pertaining to him/herself. This information is protected by law.
On the 6 of November 1997 the CC gave an interpretation of Article 23, responding to the application of Konstantin Ustimenko, an inhabitant of Dnepropetrovsk (by the way, a reader of the weekly „Prava Ludyny“ — „Human Rights“- published by the Kharkiv human rights protection group).The claimant was put on the psychiatric cases list in 1988 — 1990, which fact restricted his rights in occupying some jobs. Several times he addressed court and prosecutor’s office, but they refused him to get full information on the reasons of putting him on the list and showing him his hospital card. According to the cited CC directive, „not only the collection, but the storage, usage and distribution of confidential information without his/her consent is prohibited, except in the cases stipulated by law, and only in the interests of the national security, economic prosperity, human rights and freedoms“, and „each person has the right to know which data and with what purpose are collected, how and with which purpose they are going to be used, ... as well as the right to get acquainted with the information collected about him by state and local administration, establishments and organizations, if these data do not make a state secret or another kind of secrets stipulated by law“ („Pravo Ukrainy“, No.12, 1997, pp.111-112). Thus, the CC spread the prohibition of Article 23 to all main forms of information processing.
This Directive of the CC was sharply criticized as aimed at the restriction of rights of journalists. The known analytical weekly „Zerkalo nedeli“ printed the following comment to the Directive: „Now the people in power got still another convenient opportunity to step on the tail of newspeople... It is not impossible that the next step of state officers will be encrypting of their names, so everyone who will address them by name will be handcuffed and brought to the nearest precinct, for third-degreeing from them the source of the secret information“. („Zerkalo Nedeli“, 21 November, 1997). At the conference „Mass media and society: aspects of interaction“ a group of participants approved the appeal in which it was noted that the CC interpretation ; „not only completely devoids journalists of the right to inform the public on the activity of any politician, but finally destroys the freedom of speech in Ukraine“ (cited from „Legal Bulletin for mass media“, November-December, 1997, No.5, p.5). On 24 November at a press conference Ivan Timchenko, the Chairman of the CC, declared that the interpretation of several articles of the law is not aimed at restricting of journalist’s rights; the purpose of the interpretation was to concord the articles with the Constitution of Ukraine, which contains a wider treatment. Journalists have the right to check and verify information, for example, on candidates to the Parliament, since, having made public the information about themselves after entering the political struggle, a candidate „allegedly gives his consent for further disclosing this information“. The CC head confessed that „there is no hard and distinctive lines between confidential information, which a private person would be unwilling to disclose, and the information known publicly“ (Ibidem, p.5).
It is worth to mention the campaign held during 1997-1998 on the introduction of identifying numbers for all natural persons. residing in Ukraine. At first the numbers were introduced by the Tax Inspection of Ukraine for making the list of tax payers „with the purpose of the convenient control over the timely and complete payments of taxes“. These numbers were entered by the Tax Inspection as a personal code to all automated systems of processing information (The Tax Inspection’s letter of 21 January 1997, No.29-0105/10-459). Later these codes were introduced to all standard blanks of the primary account (The letter of the State Committee of statistics of 24 December 1997, No.2-2-5/96). During the first half of 1998 state bodies forced all people residing in the country and needing to get money from any source to get the identifying number. The procedure was a tormenting one, especially for pensioners who had at least twice stand in the frost in unbelievably lengthy queues for handing and getting back the account card and then receiving a certificate with the number. In the actual fact, this number is aimed for using as a single universal code of a person in the creation of the United Automated Passport System (UAPS), as it was stated by the „Concept of creating the UAPS“, adopted by the Cabinet of Ministers of Ukraine in the beginning of 1997 (Directive No.40 of 20 January 1997). In our opinion, the introduction of the unique state code will enable state agencies to retrieve personal data on a person without the latter’s consent, which abuses the constitutional right for privacy and contradicts the discussed Directive of the CC.