CONTROL OF THE INTERNET IN THE SYSTEM OF FUNCTIONS IN THE MODERN STATE

Abstract

The article discusses the development of state functions concerning Internet. It focuses on the analysis of the main problems that impede the development of control function. The research suggests proposals for the development of such function by the state. Based on the studies, a forecast about the prospects for further strengthening of state control over the Internet has been made.

Full Text

Introduction The relevance of the article rests in the fact that functional approach to the issues of state control on the Internet allows to consider the main structural elements of the organization of such control and identify ways to improve them by developing proposals concerning the entire structure and individual parts in terms of their internal relations. Such study is of certain current interest in the context of overcoming threats to public order emanating from the Internet (for example: fraud, espionage, computer vi- ruses, and other problems) through the development of effective forms of response to offenses in the virtual space in order to prevent them. At the same time, there are very few works that investigate this issue. When considering the functions of the state and their reflection in the society, we do not think about the role of the Internet in the first place. The analysis of modern technologically developed countries often ignores this axiomatic fact; it is not eliminated in the process of improving and functioning of the authorities, although insufficient attention to such topics in the information society seems harmful and unacceptable given the huge role of virtual space in the 21st century. This is an additional argument confirming the relevance of the research topic. The purpose of the study is to identify common patterns of development of state functions in the Internet environment. Based on the goal, the following tasks are formulated: 1) determining the laws of development of state functions; 2) identifying forms of implementation of the functions of modern states in the field of control over the Internet; 3) investigating problems that impede the transfer of state functions on the Internet, as well as suggesting possible solutions; 4) forecasting the development of state functions in the field of control over the Internet. In the process of the study, an extensive number of scientific methods was used: 1) logical methods (analysis, synthesis, induction, deduction, dialectics, abstraction); they helped structure the information obtained in the framework of this research; 2) functional method that allowed us to consider the control activities of modern states in the framework of the theory of functions; 3) historical method used to ensure the continuity of scientific knowledge and their study; 4) formal legal method contributing to the analysis of legislation on the issues of state control on the Internet; 5) statistical method that allowed citing relevant data, threats emanating from the Internet, as well as effectiveness of various forms of response to them. As part of this work, an analysis of the main regulatory documents that address issues of state control on the Internet is carried out. The following outcome of the study can be mentioned: 1) the fact of the existence of the control function of the state in the field of virtual space has been proved; 2) legal and non-legal forms of the state’s control function in the field of virtual space have been identified, as well as models for their dispatch; 3) the main problems associated with implementation of the control function on the Internet are identified, and ways to solve them are proposed; 4) a forecast is made for the development of the state’s control function in the field of virtual space, which, for objective reasons, is in the direction of its strengthening. The results of the study are reflected in practice, confirmed by the legislation of the Russian Federation and foreign countries. The theoretical output and practical implementation of the study are connected with the fact that the work enriches scientific knowledge in the field of the theory of state functions; it allows to formulate proposals for improving control through the Internet to ensure the rule of law. In addition to the introduction, the article includes four chapters, conclusion, and bibliography. General issues of the theory of state functions The question of the advisability of introducing the category of state functions into the scientific circulation and considering various social phenomena on its basis was initially debatable and attracted both supporters and opponents. At first glance, it seems easy to find arguments against the theory. There is no satisfying definition of the concept state function, no idea of their number, features, and essence. There is a problem of classifying certain aspects of state activity as strictly defined functions of the state. There is some politicization of this concept stemming from Marxist philosophy in terms of characterizing various states from the point of view of justice of their structure. There is a hypothesis that it substitutes the categories of task and goal of the state, which allowed some researchers to describe these phenomena with the help of the functional approach. On the other hand, it should be noted that the above arguments, although they highlight a certain imperfection of the category of state functions, still do not allow to prove its complete failure. Indeed, one can note the presence of various approaches to the definition of the concept and essence of the functions of the state that exist in domestic science. At the same time, most views boil down to the fact that the functions of the state represent the main areas of activity or state activities themselves. A limited number of basic approaches reduces the degree of uncertainty of the described phenomenon to an acceptable framework. Moreover, they are not antagonistic, and can be overcome. Indicative in this regard is the point of view expressed by Ernst Bernard Haas; he looked at the category function as a direction of activity that can cause certain consequences, and at the same time as activity aimed at performing a specific task (Haas, 1964:595). Turning to the functions of the state from a political perspective can be used to prove superiority of some states and / or political regimes over others and be based on the subjective interests of the person carrying out such activities. As an example, we refer to the report of I.V. Stalin at the XVIII Congress of the VKP (b). In this document, the head of the Russian state placed the modern capitalist countries on a par with the states of the slave and feudal type; as an argument he used the thesis of commonality of their functions: internal (main) - to keep the exploited majority in submission; external (not main) - to expand the territory of the ruling class at the expense of other countries and protect it from external encroachments. In contrast, characterizing the USSR during the victory of the socialist system of economy, the speaker noted the dominance of people’s masses as a class, which, in his opinion, was reflected in the fairer system of functions of the Soviet state that had replaced capitalism: the function of protecting socialist property from thieves and looters; the function of military defense of the Soviet system; the function of economic and organizational and cultural-educational work of state bodies. But even if the theory of functions is used for political purposes, it can also be used for state planning and thus be of real importance for the development of the country. In the above example, on the basis of the identified functions of the state, the main tasks were formulated for the party; they were specified in its direct activities and aimed to systematically improve the composition of the party, bring the governing bodies closer to the field activities, improve personnel policy, and develop the outreach activities (Vyshinsky, 1939:22). Of course, the concept of state function was formed gradually, replacing in some cases the concepts of goal and task of the state. In fact, G.F. Shershenevich believed that based on the identified tasks of the state, it is possible to determine its fundamental goal. However, the need to expand the categorical apparatus seems doubtful (Fetyukov, 2014:33-43). At the same time, there is an opinion that has not been disproved so far; one of its proponents (I.S. Samoshchenko) asserts that we can better understand the type of a particular state and its essence through its functions (Samoshchenko, 1956:81). It is necessary to recognize a significant number of different classifications of types of functions, within the framework of which, the functions of the state are subject to frequent changes and additions. Analysis of the educational literature on the subject of Theory of State and Law allows to distinguish in the domestic science the following established criteria for classifying the functions of the state and their most common types[46]: 1) depending on significance: basic and non-basic; 2) depending on the duration of the action: permanent and temporary; 3) depending on the scope of implementation: internal and external; 4) depending on the principle of separation of powers: functions of the legislative, executive and judicial powers; 5) depending on the type of state: functions of the state as a political and legal institution, functions of a certain type of state, functions of a particular state at a certain point in time; 6) depending on the territory of implementation: functions of the state as a whole and functions of its individual components; 7) depending on the social purpose: functions expressing the interests of individual layers of society, and functions expressing the interests of society as a whole; 8) depending on the spheres of public life: the functions of the state in the economic, political, spiritual, cultural, social spheres of society; 9) depending on political regime: functions of a totalitarian state, functions of an authoritarian state and functions of a democratic state. It can be argued that all classifications of state functions are not exhaustive and unconditional. However, they allow to reveal various aspects of the state’s activity and the essence of this phenomenon. Developing this topic with regard to the allocation of new functions of the state, as well as to determination of their nature, many authoritative researchers note that functions of the state have such a property as variability. In fact, V.E. Chirkin points out that "functions are determined by the main tasks of the state and may be different for different states and/or for the same state at different stages of its development" (Chirkin, 2007:352). The variability of the functions of the state is determined by the following fundamental factors: 1) the concrete historical stage of development of a state-organized society; 2) the domestic and foreign policy situation around the state; 3) understanding of the goals and objectives facing the state on the part of the political elite; 4) understanding classification and nature of the functions of the state on the part of researchers of these phenomena. Taking into account, the historical experience of the Russian Federation and realities of the 21st century, it is urgent to raise the issue of the control function of the Russian state in the field of virtual space; it is proposed to understand it as the main directions of state control over information and information relations that take place on the Internet. A similar conclusion can be drawn about many other technologically advanced countries of our time. The state control over the Internet is so important for them that it should be considered as an independent area of their activity, presenting it as one of the functions and gradually moving away from the scientific position, according to which control is an exclusively serving element of the system functions. In most modern countries, official documents exist often in relation to general cybersecurity issues, confirming recognition of state control in the virtual space as an independent direction of the state’s activity, in other words, its function (for example: The Doctrine of Information Security of the Russian Federation, US Cyber Strategy, Law on Internet Security of China, Canadian Cybersecurity Strategy, etc.) (Kazarin, 2013:58-74). It can be noted that this function has its own specific features, which are identified in the framework of its empirical analysis. Its main goal is to ensure the rule of law in the virtual space, by which it is proposed to understand the totality of information and public relations that take place on the Internet, as well as information and telecommunication technologies providing access to this network. It is characterized by such signs as universal, transboundary and technogenic. The unique task of this function is to counter offenses in virtual space. In addition, it is characterized by specific forms of exercise. Summing up the present chapter, we state the control function of the state in the field of virtual space is relevant. Forms of control function of the state on the internet The issues of the forms of exercising state functions are particularly important. L.I. Kask noted that these matters are of much greater importance to the social sciences than is customarily attached to them (Kask, 1967:112). Forms of implementation of state functions are thereby the external expression of the internal essence of the state; it determines the laws of development and vital activity of this public entity. In legal literature, the concept of implementation of state functions as external manifestation of state functioning, the ways and means of carrying out practical activities of the state aimed at realizing its goals. Among various ways of classifying the forms of implementation of state functions, one of the most relevant basic criteria for gradation are the methods of activity of state bodies in exercising its functions. According to M.I. Baitin, it is proposed to distinguish within the framework of this classification the legal forms of exercising the state functions (associated with the issuance of regulatory legal acts entailing legal consequences) and the non-legal forms of exercising the state functions (reflected in state activities that are similar in their external features and related to the issuance of legal acts, not entailing legal consequences) (Baytin, 1969:267-270). It is worth noting that the forms of implementation of the control function of the state in the field of virtual space differ from the known forms by the presence of their specificity. The validity of this thesis is due to the fact that state control in the field of virtual space is carried out directly behind the information and the relations that take place on the Internet. In relation to the Russian Federation, the author considers the following legal forms of the state’s control function in the field of virtual space: 1) creating and maintaining special state registers on certain issues of ensuring state control over virtual space; 2) licensing of certain types of activities in the field of communications and mass communications; 3) organizing storage and access to information posted on the Internet; 4) monitoring of virtual space; 5) verifying reports on offenses committed on the Internet; 6) blocking access to sites containing prohibited information. The author also defines the following main non-legal forms of exercising the state’s control function in the field of virtual space within the Russian Federation: 1) developing and implementing information and telecommunication technologies to realize the control function of the Russian state in the field of virtual space; 2) organizing preventive measures aimed at improving the legal culture of citizens when working with the Internet; 3) increasing the level of professionalism of officials of state authorities responsible for implementing control function of the Russian state in the field of virtual space; 4) creating international collective security systems in the field of virtual space. Conclusions are made based on empirical analysis of various forms of implementing this function in terms of frequency of its use by public authorities and their efficiency proposed by the author of this article[47]. Forms of the control function in the field of virtual space are implemented by specialized state bodies related to the executive branch of government. Here are some relevant examples: Federal Service for Su- pervision of Telecommunications, Information Technologies, and Mass Communications in the Russian Federation, NSA in the USA, NKRSI in Ukraine. Often, other executive authorities also participate in the control of information on the network within their competence. For example, in the Russian Federation there is a specialized Office “K” under the Ministry of Internal Affairs, in the USA the CIA and the FBI, in Ukraine SBU. At the same time, the practical plane of the forms of exercising the state’s control function in the field of virtual space is such that the main powers for their implementation can be delegated to non-profit organizations controlled by the government, but not to state authorities. For example, in the DPRK, control over the Internet, as well as its national counterpart, Kwanmen, is primarily handled by the nonprofit organization Korean Computer Center, which has branches in some countries, including China, UAE, Syria, and several other states (Shatilina, 2018:38-45). As part of their activities, these government bodies and their respective units monitor the Internet. The most important niche in terms of the forms of implementation of the control function of states in the field of virtual space is occupied by specialized programs that allow the following activities to be carried out: 1) tracking content according to specified parameters; 2) blocking access to prohibited content; 3) organizing collection of content according to the established characteristics. One can cite a number of examples of such programs, taking it as an axiom that they exist in one form or another in almost all developed modern countries: SORM in the Russian Federation, Tempora in the UK, PRISM in the USA, CMS and NETRA in India, Titan in Sweden. Often, the success of the entire system of state control of the Internet depends on the mechanisms of implementation, operation, and effectiveness of such programs, which determines their paramount importance in this matter, as well as the need to concentrate efforts to improve them. The outcome of this chapter can be outlined as follows: legal and non-legal forms of the state’s control function in the field of virtual space have been identified, and models of sending entities have been established. Problems related to the implementation of the control function over the internet The need to improve the control function of the state on the Internet is associated with the following global problem - the growth of crimes committed using the Internet. As follows from the statistics collected by the ATP “Garant”, the question “Have you faced cybercrime?” was answered positively by 86% of respondents[48]. According to the statement made by the Head of the Main Directorate of Economic Se- curity and Anti-Corruption of the Russian Ministry of Internal Affairs, Police Lieutenant General A.A. Kurnosenko, in 2019, in Russia every seventh crime is committed with the help of IT[49]. Cybersecurity Ventures experts claim that in 2019, cyber attacks occurred in the world every 14 seconds[50]. Practice shows that many modern countries claim that the available in their arsenal IT tools for monitoring virtual space are too imperfect. In fact, the above is true for specialized programs that allow monitoring activities. As an example, it can be noted that Russian virtual space control programs, as similar foreign programs, do not allow to decrypt information created by certain encoding methods, such as end-toend encryption used by the «Telegram» (Tereshchenko, 2018: 142-161). The Great Chinese Firewall example makes it obvious that this and similar programs can be bypassed using VPN services, which was demonstrated by one of the developers of the Golden Shield, programmer Fan Binshin, using the Tianhe service back in 2016[51]. As practice shows, these two problems, receiving and filtering / blocking certain information, are the most significant in this issue. Moreover, attempts to solve them, lying in the plane of creation and implementation of more advanced technologies, require significant financial costs. Certain trends in this area will be discussed in the next chapter of the study. The traditional way for any state to respond to offenses is to hold perpetrators accountable for violations on the Internet; it is significantly difficult because modern technology allows to anonymously commit offenses from anywhere in the world, including locations where certain acts are not punishable, in contrast to the laws of those countries where they are actually committed through the World Wide Web. In fact, they are trying to solve this problem by building a system of international cooperation and unifying legislation in the field of combating offenses in the virtual space and controlling it. At the multilateral level, the 108th Council of Europe Convention can be cited as an example; at the bilateral level, the 2015 agreement between the Russian Federation and China on ensuring information security is worth mentioning. At the same time, it seems that some countries, the Russian Federation including, could advance in solving this problem by creating controlled non-profit organizations of an international nature and a network of their branches in foreign jurisdictions; this way they could monitor the virtual space and respond to offenses affecting national interests of those states, taking into account the specific legislation of those countries, including legal response measures (for example, submitting applications in the law enforcement agencies of foreign states). By means of public organizations, it is possible to solve not only the problem of bringing to responsibility for offenses on the Internet, but also the problem of improving the information ecology in virtual space, as well as legal and cultural education, by leaving relevant comments on social networks and other similar ways that are currently not attracting much attention. Strengthening the state presence in the virtual space is an important part of the development of the information society, since ensuring national interests would be a very difficult task without it. A significant problem along this path is the reputational risks of the state associated with the strengthening of state control on the Internet. Any state that positions itself as a legal state is forced to balance between a protective policy aimed at introducing control restrictions and a liberal policy that represents a certain degree of independence for citizens when they exercise their rights and freedoms in the context of information relations arising on the Internet. In addition, from the above it follows that in case of a violation of the balance in favor of the “protective policy”, the state risks its reputation as a “democratic policy”. The adoption of normative legal acts that in any way restricts the capabilities of users of the World Wide Web can be opposed by 1) representatives of civil society, 2) foreign states, 3) international organizations. As an example of a similar situation when all of the three of the above levels the state, which had introduced tough state control measures over the virtual space of the global computer network, suffered reputational damage, we should mention the scandal with “spy revelations” made in 2013 by the former CIA officer Edward Snowden. The information he disclosed about the PRISM program, as well as about some other activities of the American special services aimed at ensuring state control over the exchange of information taking place on the Internet, led to wide public resonance and influenced the USA political image as a democratic state capable of supporting its national security and also respecting human rights (Gazizov, 2013:24-40). In our opinion, the aforementioned scandal, as well as similar cases, can be described by the term the Snowden Effect: a situation where a public message about strengthening of state control over the private life of citizens on the Internet is perceived by the latter as a violation of their constitutional right, which leads to a rise in protest activity and a fall in public trust in the state. In general, we believe that in modern conditions the right to privacy should exist provided that government officials have access to information created by users of the Internet, and such information is not arbitrarily used, including for the purpose of public disclosure. This will significantly increase the level of information security. It is also important to give legitimacy to the decisions made. There is a problem of introducing civil society into the process of controlling the Internet. It should be noted that in the modern world there are public organizations whose activities are to identify offenses on the Internet through monitoring the information contained in it. For example, on the basis of the Public Chamber of the Russian Federation a monitoring center “Security 2.0” was set up; its direct task is to monitor the Internet to identify sites containing prohibited information, followed by reporting them to Roskomnadzor. Periodically, monitoring raids are also organized by public chambers of the constituent entities of the Russian Federation[52]. Organizations similar in their tasks exist in other countries. For example, in the UK there is an organization called Papyrus, which conducts Internet monitoring to close sites promoting suicide, and an Internet Monitoring Organization that monitors the network to identify sites containing extremist information. In Canada, a nonprofit organization called the Canada Child Protection Center carries out similar activities. There is also an organization that monitors virtual space for information security in the China - China's Cybersecurity Association. In the context of globalization, some organizations monitoring the virtual space are international in nature. For example - NetBlocks. From the point of view of the sphere of its control, all non-profit organizations can be divided into two types: 1) organizations that monitor the virtual space in order to suppress any illegal activity, 2) organizations that monitor virtual space in order to suppress strictly defined types of illegal activities (for example, child pornography, online fraud, illegal trafficking of narcotic drugs and psychotropic substances). There are several special issues in this area. First, it can be assumed that representatives of non-profit organizations cannot have the same level of competence as government employees, and this can lead to errors in the legal assessment of specific circumstances and low work efficiency. As counterarguments, it can be noted that nonprofit organizations do not often have the same wide range of powers as government officials, and the lack of professional skills can be solved by organizing appropriate advanced training courses. Another problem is more academic in nature. It consists in the fact that, according to some researchers, civil society institutions should not be created by the state, since this contradicts their essence and, in this case, they cease to express “people's will”. However, one can propose an alternative concept of civil society, which the author conditionally calls state. From the point of view of a rational approach and within the framework of the goal of ensuring the rule of law in the virtual space, financial (in particular, grants, subsidies), organizational, administrative, and media support of public organizations by the state is a very common phenomenon, examples of which are repeatedly cited in this article. It should be recognized that the state can create / participate in the process of creation the institutions of civil society that it needs, relying on those representatives of society that are loyally disposed towards it; non-profit organizations created / functioning in this way do not automatically fall out of the orbit of civil society, because, performing social state orders are often able to reflect the interests of citizens, as well as be formed on a voluntary basis by the latter, seeking at a certain stage of their development the support from public authorities to achieve their goals. Thus, the problem of the effectiveness of non-profit organizations monitoring the Internet can be solved by using the above forms of government support. Summing up, we can outline the following results of this chapter. The main problems associated with the implementation of the control function on the Internet have been identified, they are connected with the active growth of offenses committed via the Internet; imperfection of control mechanisms and technologies in the field of virtual space; the growth of public discontent associated with strengthening state control on the Internet; difficulties in attracting civil society institutions to the process of exerting control on the Internet. Forecasting the development of the state function in the field of control over the internet In recent history, the starting point of the trend to strengthen state control over the Internet is associated with the very beginning of the 21st century, which, in our opinion, is connected with the USA where George Bush Administration adopted the Patriotic Act 2001 as a response to «9/11» events. Many other countries, such as the Russian Federation and China, adhere to this practice. Author believes that given the growing role of the World Wide Web in the information society, as well as the relevance of the threats emanating from it, in the forthcoming decades the state’s control function in the field of virtual space will grow. Despite the large financial costs, significant budgetary investments will be made in the development of programs that allow the implementation of the control function in the virtual space. This process will be closely linked to issues of ensuring state sovereignty on the Internet. We believe that many countries will directly oblige entities under their control to install the above programs on gadgets and other equipment providing access to the network. With regard to the Russian Federation, such a measure is possible within the framework of implementation of the provisions of the Federal Law dated 02.12.2019 No. 425-ФЗ On Amending Article 4 of the Law of the Russian Federation On Protection of Consumer Rights, which prescribes the mandatory pre-installation of Russian software on gadgets sold in the framework of sales contracts in the Russian Federation, according to the schedule approved by the authorities. It is quite possible to include these programs in such schedule. In the most radical cases, there will be attempts to ensure complete control of their virtual space or at least the autonomy of the national Internet from the external network, as is now the case in the Russian Federation under the Law on Sovereign Internet, as well as in China, where the experience of the DPRK in this matter is closely studied. Here are other examples: in Myanmar, access to the Internet is only possible in licensed Internet cafes controlled by the government; in the whole country of Turkmenistan there is only one authorized provider controlled by the state (Dashyan, 2007:288). In this regard, a trend will develop that consists in increasing the list of duties of information intermediaries related to the provision concerning state control over the Internet and establishing a regime of legality in the virtual space, as well as toughening responsibility for their non-fulfillment. As an example, we refer to EU legislation. In 2019, it received the approval of the European Parliament and the Council Directive on copyright and related rights within the framework of a single digital market, which contains Article 13, called the “download filter”, which stipulates the obligation of owners of online platforms to install software filters to prevent copyright infringement on the Internet. It is noteworthy that this article has become one of the most controversial in this document, along with Article 11, called the “tax on links” (establishes the obligation of Internet platforms to pay royalties to publications for quoting their materials) (Eremenko, 2019: 9-22). As a result, the tendency of periodic criticism of states by Internet users is inevitable, as well as their growing dissatisfaction with the tightening of control in the virtual space. Countries will often experience the Snowden Effect. The solution to the problem is possible by building an effective system of working with public opinion, aimed at highlighting the need for state control on the Internet from the point of view of the interests of not only the state, but also society (Strukov, 2016:142-144). At the level of interstate cooperation and geopolitical associations, cooperation will be strengthened, and legislation will be unified in the field of combating offenses using information and telecommunication technologies. As an echo of the above issues, it is possible that a system of non-profit organizations involved in monitoring the Internet will gradually build up. This system should include interstate aspect as well. This can be expressed in the increase in the number of international organizations initially based on one or more countries that will engage in these activities on an ongoing basis. On the other hand, the emergence of non-profit organizations advocating the freedom of the Internet from state control and ensuring an “information environment” can be used to hinder the development of countries by their competitors; this may as well increase the state’s reputation costs through formation of negative public opinion concerning strengthening such control (Strukov, 2016:267-270). Thus, this chapter predicts the development of the state's control function in the field of virtual space, which, for objective reasons, tends to strengthen. Conclusion The control function in the field of virtual space is a given reality that exists for all the strong and technologically advanced states of our time. Its appearance is an answer to global problems of the 21st century, the solution of which requires a state presence and enhanced control on the Internet. This function characteristic features, purpose and forms of implementation are inherent. The process of its development is accompanied by certain problems; one of them is the need for continuous improvement of information and telecommunication technologies in performing control activities, which requires significant costs. In general, to prevent threats to information security, the state needs to tighten control in the field of virtual space. However, strengthening of state control over the Internet is often negatively perceived by society, and therefore there is a request for additional mechanisms to legitimize state power decisions in this area.