SORM at the expense of the operators, and "Spring"?

On December 30, the Government of Russia adopted Resolution No. 1721 approving the changes that are made to the Rules for Interaction of Communication Operators with Authorized State Bodies Conducting Operational-Investigation Activities, Approved by Resolution No. 538 of the Government of the Russian Federation of August 27, 2005 “On Approving the Rules for Interaction of Operators relations with authorized state bodies carrying out operational investigative activities ”(hereinafter -“ SORM Rules ”). All changes, except for the last item, have already come into effect.



Now the telecom operator is obliged to submit an application to the UCBF no later than 45 days from the date of receipt of the license. And the head of the UFSB, within 30 working days from the date of receipt of the relevant application, should determine the authorized unit that interacts with the telecom operator. It was 60 days earlier.



The obligation to store “information on the facts of receiving, transmitting, delivering and (or) processing voice information, text messages, images, sounds, video or other communications of users of communication services” was entered into the IS database. At the same time, it is now necessary to store in the territory of the Russian Federation.



SORM Rules also supplemented with the following items:



12 (1). The request for confirmation of the compliance of personal data of actual users with the information stated in the subscriber contracts of the telecom operator is sent by the authorized bodies to the federal security service authorities. The specified request is sent by the federal security service authorities to the telecom operator.



The request reflects all detected inconsistencies of the personal data of the actual users with the information stated in the subscriber contracts of the telecom operator.



The number of requests for confirmation of compliance of personal data of actual users of telephone services with information stated in subscriber contracts of a telecom operator sent by authorized bodies, depending on the numbering resource allocated by the Federal Telecommunications Agency to a telecom operator, as of the date of the request, should not exceed:



0.3% of the total number of allocated rooms for 15 days;

0.6% of the total number of allocated numbers during the calendar month;

5% of the total number of allocated numbers during the calendar year.

The request and response forms for the request are approved by the Ministry of Communications and Mass Media of the Russian Federation.



12 (2). Response to the request containing information on the results of confirmation of compliance of personal data of actual users, information stated in subscriber contracts of a telecom operator, as well as information on the date of termination of the provision of communication services in case of non-confirmation of compliance of personal data of actual users with information stated in subscriber contracts of a telecom operator, including in the absence of subscription contracts, the telecom operator sends to the authorized bodies that sent the request, within 15 days from date of receipt of the request.



In case of exceeding the number of requests for confirmation of compliance of personal data of actual users of telephone services specified in clause 12 (1) with information stated in subscriber contracts of a telecom operator, the telecom operator sends to the authorized bodies information on such excess, as well as on planned timelines for carrying out confirmation activities correspondence of personal data of actual users of telephone communication services with the information stated in communications operator contracts. "



At the same time, from July 1, 2018 (the date of entry into force of Federal Law No. 374 dated July 6, 166 (Spring)), the last 15 paragraph also comes into effect: “Text messages of users of communication services, voice information, images, sounds, video, the telecommunications operator stores other messages from users of telecommunications services in technical means on the territory of the Russian Federation and, in cases established by federal laws, provides them to authorized bodies. ”



However, in accordance with paragraph 1. Article 46 of the Federal Law "On Telecommunications": "The telecom operator is obliged to: ... build telecom networks taking into account ... the requirements stipulated by clause 2 of Article 64 of this Federal Law (2. Telecommunications operators are obliged to ensure the implementation of the requirements for networks and means of communication for these bodies in the cases established by the Federal Law, activities in order to implement the tasks assigned to them ...).



The costs associated with this (with this clause, which refers only to paragraph 2. 64 of the Federal Law "On Communications"), as well as the costs of creating and operating control systems for their communication networks and their interaction with the unified telecommunication network of the Russian Federation, are borne by operators communication.



At the same time, paragraph 2 speaks only about the ORM System, and not about the obligation to store information. Therefore, only SORM at the expense of Operators, but not the obligation to store information!



However, the draft order of the Ministry of Communications and the Federal Security Service of Russia on approval of the Rules for the use of hardware and software of information systems containing databases of subscribers of a telecom operator and telecommunications services provided to them, ensuring the implementation of established actions during operational investigations (hereinafter - "Rules of Application" , received a positive expert opinion on the results of the regulatory impact assessment) in the functional system of IS ORM DB (information systems containing subscriber databases the telecom operator and communication services provided to them, which ensure the implementation of the established actions during the operational search activities, include technical means of storing information.



So, p. 9.2. Section III of the draft Rules of Application provides: “9. The ORM DB IS provides: 9.2. Accumulation, storage up to 6 months of the contents of user text messages, voice information (in terms of licenses to provide communication channels; communication services in a data network, except for voice information and telematic communication services), images, sounds, and other messages of users of communication services with the end of their reception, transmission, delivery and (or) processing. "



This item illegally imposes costs and functions of the state to ensure the safety of storing information on communication operators. By virtue of the foregoing, if the order is adopted in the wording of paragraph 9.2. he should be challenged in the Supreme Court of Russia, as contrary to the legislation of Russia.



Dmitry Galushko - Lawyer, Ph.D. in Law, General Director of OrderCom LLC,.