‘In Russia, Watergate is an ethical issue, not a crime’ Why the latest official correspondence leak will have no legal repercussions

In late March, the hacker group Anonymous International (also known as Shaltai-Boltai, Russian for Humpty Dumpty) posted an archive online containing about 40,000 SMS messages. They were allegedly lifted from a mobile phone belonging to Timur Prokopenko, the official who oversaw the Internet at Russia's Presidential Administration from 2012 to 2014 (later he was put in charge of federal elections). His correspondence contained several sensations. In particular, it was found that the Presidential Administration and the state-run media watchdog Roskomnadzor may give instructions to Prosecutor's Office about which websites to block. Meduza asked the head of the association of human rights organizations Agora Pavel Chikov to examine the correspondence in order to understand what legal consequences may result from this leak.

The Russian Howard Hunt

In 2005, a 24-year-old graduate of the Presidential Academy of National Economy and Public Administration named Timur Prokopenko got a job as the press secretary of the vice-speaker of the State Duma. Two years later, Prokopenko started working for the President's office in Russia's Far Eastern Federal District, specializing in the field of political PR. The presidential envoy there was Oleg Safonov, a close friend of Vladimir Putin and former KGB Lieutenant-General.

In 2009, Timur Prokopenko returned to the Duma as the press secretary speaker of Putin’s close ally Boris Gryzlov. The following year, Prokopenko became the leader of the youth organization of the ruling party, the "Young Guard of United Russia.” A year later, he became a member of the Duma, winning in the election that provoked mass protests against election fraud in the winter of 2011-2012. Just two months after that, Prokopenko went to work in the Presidential Administration, under the command of the newly appointed first deputy Vyacheslav Volodin. Prokopenko’s position at this time was the deputy head of domestic policy. His area of ​​responsibility was the Internet, the media, and social networks.

In late March 2015, in addition to the e-mail archive leaked earlier, Anonymous International leaked 1,187 pages of text messages, allegedly from Timur Prokopenko’s phone records for the period from 2011 to 2014. Russian authorities did not deny the leak; the authenticity of the published correspondence has been confirmed by several officials and indirectly by presidential press secretary Dmitry Peskov.

The scandal has been dubbed "SMS-gate" or "Prokopenko-gate", referring to the Watergate scandal in 1972 in the United States. This analogy looks convincing at first glance. Moreover, even the main characters of the stories are similar.

The main character of the Watergate scandal in 1972 was an employee of the Presidential Administration Howard Hunt. Hunt was born in 1918 in the family of a member of the Republican Party. At age 31, he became a member of the CIA and was promoted to Assistant Director of the CIA under Allen Dulles. He then went to work for a PR company founded by the former press secretary of US President Dwight D. Eisenhower, who was also closely related to the CIA. A year before Watergate, on the eve of Nixon’s presidential campaign, Hunt became a consultant to the White House.

Timur Prokopenko’s story is certainly similar to Watergate. However, there are substantial differences. The main thing, of course, is not than an employee of the Presidential Administration tapped someone, but rather that his conversations became public. In addition, Prokopenko was not arrested, a parliamentary inquiry was not ordered, and the president did not make any statements. Of course, the investigators, the President, and parliament are not American, but one wonders whether it is possible to speak about criminality in this case.

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Journalist circles reacted to Anonymous International’s latest leak by demanding a criminal case and punishment for officials who abused an official position and engaged in censorship. At the same time, some participants in the correspondence were offended at the violation of their privacy.

Let's try to answer two main questions: does receiving and publishing this information violate the law, and does the correspondence contain any information about violations of the law?

Is leaking a crime in Russia?

The organizers behind the leak clearly want to make it look like the result of some advanced, elusive avengers hacking a mobile phone. Hacking, no doubt, amounts to a crime under Russian law. Article 272 of the Criminal Code criminalizes illegal access to computer information protected by law, and SMS messages fall quite neatly under this article.

Because it is unlikely that one individual is behind the act, we are looking at punishment for a group of people. This would amount to up to five years in prison. However, some time has passed since the leak, and Russia’s Investigative Committee has not done anything to set up any kind of advanced investigation into the affair.

The point, however, is that hacking is not the only way to get access to such information. There are many other possible scenarios. For example, the data could have been obtained by the security forces. They would not even need a court order to obtain such information, if the head of an operations department orders to do so.

A printout of text messages may also be prepared by a mobile phone company on its own initiative or at the request of various bodies. You can also find offers to order a printout of SMS messages from any mobile operator online. The price is one hundred dollars per month, and the maximum period of limitation for messages is one year.

Accessing printouts of SMS text messages would constitute a crime under Article 138: "Violation of the confidentiality of correspondence, telephone conversations and other communications." However, the statistics of the Department of Justice of the Supreme Court of Russia show that the practical application of Article 138 of the Criminal Code is quite limited. In 2011, 11 people were convicted in accordance with this law, and only four people were charged for abusing their official positions in the process. Since then, there have been more charges in connection to the law, with 30 convictions and 6 convictions of official position abuse in 2012, and 35 charges and 11 convictions of official position abuse in 2013.

As a rule, the act of printing out telephone call details or SMS messages by staff of mobile operators for themselves or upon the orders of others falls under the article. The sentences have all been rather merciful, and in all cases there was a victim (although technically this is not a prerequisite).

Can the content of the correspondence be crime?

Many believe that the leaked correspondence is by default a violation of privacy, which itself is a criminal offense in Russia (Article 137 of the Criminal Code). Court statistics for this article the same as for Article 138: 30—40 people convicted annually, including five to seven people in official positions. Typically, this involves hacking into accounts in social networks or the publication of intimate photos and videos without the consent of the owners.

It is clear that for a long time, Russian investigations have not established a stable approach to these cases, except for unconditional execution of instructions dictated from higher-up officials. If desired, it is possible to read into a correspondence and obtain information about people’s personal lives from it. 

In case with the leaked text messages, there is no doubt that 99 percent of the published information was irrelevant to private life. And the remaining one percent is not very significant. The leak is mostly about professional activities, though Timur Prokopenko and his journalist friends might not want to admit this. Moreover, information about the true relationship between the Presidential Administration and the media without a doubt is important to the public should therefore be be subject to protection by the state.

Finally, we must not forget that a printout of SMS messages can be received by a subscriber — either Prokopenko or his superiors (which is absolutely appropriate in such a situation, if your office phone is registered to the Presidential Administration). Voluntary distribution of information about one’s own professional work, obviously, is no crime. Moreover, given that the correspondence has clearly been edited (it contains big gaps), it could have been leaked intentionally. And therefore we should assess whether there is anything criminal in its content.

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I, like many others reading the correspondence, wanted to scream in horror, waving the Constitution and pointing my finger at Paragraph 5 of Article 29, which prohibits censorship. Where there is a ban, sanctions must be imposed. Let's turn then to Article 144 of the Criminal Code, which talks about impeding the lawful professional activities of journalists by forcing them to disseminate or not to disseminate information. Wait a minute: if there can be no compulsion, does that mean that all these instructions from the side of the state to remove or edit material do not constitute a crime? Indeed, this is not a crime if the journalists agree to the instructions and change their texts, come to meetings with officials, discuss their activities and adjust their positions. So it turns out that this is not an issue of criminal justice, but rather an issue of professional ethics.

The lion's share of the discussions in the leak of SMS correspondence is the usual PR work: putting it out there, pushing it aside, and de-dramatizing it. It’s dirty work, but look at House of Cards, which talks about exactly the same thing in relation to the work of the White House and the US Congress.

There are also interesting revelations from the Timur Prokopenko correspondence with Deputy head of Russia’s media watchdog Roskomnadzor Maxim Ksenzov, who is responsible for blocking websites which feature prohibited content. It turns out that Roskomnadzor is not just a technical executor of the General Prosecutor’s Office’s orders, as it was previously thought. The SMS correspondence shows that the Prosecutor’s Office actually receives orders from employees of Roskomnadzor and the Presidential Administration. However, only a handful of regional publications have managed to prove the illegality of Roskomnadzor’s decisions in court. 

In fact, a ban on access to a website in Russia is not a crime. The phrase from the Constitution which "prohibits censorship" unfortunately does not have any ancillary backing. The communication of two officials in the existing law enforcement and judicial context does not change this fact. So it is accepted, and the law in its current content hasn’t been violated.

In the correspondence, at least three criminal cases were addressed, that of blogger Rustem Adagamov, the left-wing politician Sergei Udaltsov, as well as an employee of Alexei Navalny’s “Anti-Corruption Foundation” Georgiy Alburov. None of the three cases, according to the SMS records, were initiated by the Presidential Administration. Prokopenko, it turns out, actively provided information support, unwinding every story, getting in touch with and writing to PR people. But there was neither coercion nor threats, nor inducing false testimony or bribing witnesses. It was the Investigative Committee, and in the case of Udaltsov — the court (as it is case of private prosecution), that was responsible for the validity of the prosecution. PR people from the Presidential Administration merely provided them with a little information and backing.

In general, the content of the correspondence is not particularly shocking. It reveals the rather nasty working methods of the Presidential Administration, but the correspondence has been so carefully filtered that even with if you really want to, you’d have trouble finding a convincing criminal offense in it. From a legal point of view, it looks like the correspondence was triple-filtered before the leak.