Problems of Legislative Regulation of an Investigative Action Aimed at Gaining Access to Electronic Messages

Abstract

The article is devoted to one of the controversial issues of criminal procedure legislation – the possibility of examining and seizing electronic messages or other messages transmitted over telecommunication networks within the framework of Article 185 of the of the Criminal Procedure Code of the Russian Federation. Attention is drawn to the lack of clarity in using such concepts as «electronic messages» and «other messages transmitted over telecommunication networks» by the legislator. Based on the analysis of federal laws, it is concluded that using the term «other messages transmitted over telecommunication networks» in the criminal procedure law is unnecessary.
The authors see the main problem in the inconsistency of the provisions of the Criminal Procedure Code with the essence of the investigative action regulated by Part 7 of Article 185 (arrest of postal and telegraph items, their examination and seizure). An analysis of legislative acts leads to the conclusion that electronic messages are not postal and telegraphic items. In addition, considered legal rule mentions only electronic messages’ examination and seizure (without mentioning their arrest), what contradicts the name of the investigative action regulated by the whole norm. The article provides an analysis of various points of view expressed in the special literature, considering possible solutions to the problem. As a result, it is proposed to introduce a new investigative action in the Criminal Procedure Code of the Russian Federation – obtaining information about electronic messages, copying and examining them.