By Nicolai N Petro
A series of amendments to the law on Russia’s main domestic security agency, better known by its Russian initials FSB, was signed into law last month. These amendments codify a practice that security agencies all over the world typically like to shroud in secrecy–the surveillance of private citizens who are deemed potential threats to national security. Specifically, they give the FSB the ability to issue official warnings to individuals whose activities, while still legal, are deemed to verge on criminal acts that endanger national security.
Critics of these amendments have highlighted their potential for abuse. While this is always a potential concern, the assertion that they “restore Soviet era powers to the Federal Security Service” (the AP report by Mansur Mirovalev, “Russia grants more powers to KGB successor agency ↑ ” of July 29 is one example), seems highly exaggerated and sensationalist. If anything, these new amendments have the potential to increase judicial oversight of such surveillance, potentially making Russia’s domestic security procedures among the world’s most transparent.
To understand why one must not forget how very different Soviet and modern Russian society are, especially when it comes to a citizen’s access to information.
A search on google.ru for sites containing the specific phrase “zakonoproekt o polnomochiakh FSB” (“draft law on powers of the FSB” in English) yields more than 25,000 hits. This includes hundreds of published articles about these amendments, most of them highly critical. Moreover, the entire legislative history of the law, including the committee recommendations and debates over the course of its three readings in Russia’s parliament, can be found online at several law-related web sites, as well as on the Duma’s own legislative web site ↑ .
It is simply silly to compare today’s Russia, which has the world’s eighth largest internet population ↑ and where nearly half the population uses it regularly to get news and information, with the Soviet Union where there was neither public debate nor access to critical information.
Second, this claim rests on persistent errors in reporting. For example, while it is true that under these new amendments refusal to observe a lawful directive by a representative of FSB can lead to fines and possibly even to jail time pursuant to a court order, any individual to whom such an “official warning of unacceptable activities” has been issued is specifically exempted from penalties for non-compliance under Article 19.3.Part 4(в).
During the parliamentary debates MP Gennady Gudkov raised this very issue, andMP Vladimir Vasilyev ↑ , the chairman of the committee considering the amendments answered, pointing out that: “we gutted the entire bill, there is no punishment in it. If a person receives notification of invitation to a conversation and chooses not to go, then that’s his business.” In other words, contrary to much of the reporting, there are no sanctions whatsoever for non-compliance with an official warning in this law.
Given the availability of so much information about the law, there is really no excuse for omitting such a basic fact, something both Russian and foreign journalists have been guilty of, and then misleading readers with doomsday statements such as, “Russians may now face jail time for crimes they have not yet committed”, as Mirovalev does in his AP report ↑ . Indeed, these new amendments could make prosecution quite a bit more difficult.
For one thing, now both the findings leading up to the issuance of a warning, as well as the warning itself, can be challenged in court. The additional stipulation that such a warning must be issued within ten days of an FSB finding, that they be reviewed by a state prosecutor, and that its subject be notified within 5 days, suggests that anyone inclined to challenge such a warnings will have a clear paper trail to follow. This sort of trail, not typically available in most countries because of the broad application of state secrets privileges, is crucial to any successful legal challenge.
The enactment of this provision into law will therefore most likely have one of two effects. Either the FSB will be extremely reluctant to issue such warnings, for fear of having to defend them in court under intense media scrutiny; or, the FSB will now have to be far more forthcoming in providing courts with such information. Either outcome is hardly a step in the direction of the Soviet past.
We shall, of course, have to wait and see how these amendments are applied. Still, I can easily image its first “victims” making a beeline for the press, defiantly posting their FSB warnings online, as a spate of Russian civil rights lawyers, armed with these new documents, decide how best to challenge the constitutionality of these amendments in court.
Honestly, can anyone imagine the old KGB being subjected to such indignities?