The ECHR communicated the complaint to Telegram

A communication of the complaint of the Telegram messenger about its blocking and a fine for refusing to transfer the encryption keys of user messages to the FSB has been published.

October 29, 2020 European Court of Rights of a person communicated the complaint of the Telegram messenger about its blocking in 2018. On November 16, 2020, the ECtHR published the text communications.

Recall that on April 13, 2018, the Tagansky District Court ruled immediately restrict access to Telegram on the territory of Russia until it executes requirements for the transfer of encryption keys to the correspondence of FSB users. 1st of February In 2019, this decision was confirmed by the Supreme Court of the Russian Federation.

The requirement to transfer encryption keys was introduced into the law "On information, information technologies and protection information" by the so-called Yarovaya package in 2016. Telegram stated that FSB requirements to provide access to private correspondence of users unconstitutional, not based on law, technically and legally unenforceable and, therefore, the lock requirement is also unreasonable. October 2017 the messenger was fined 800 thousand rubles for failure to comply with the requirements of the FSB, it was not possible to appeal this decision, just as the attempt to representatives of Telegram through the court to cancel the order on the procedure for handing over the keys.

An end-to-end encryption system that Telegram is used, is designed in such a way that the administration of the messenger does not can hand over the keys to anyone, since she herself does not have them: they generated by user devices for the period of their communication with each other, and then automatically removed.

Recall that in June 2020, the Russian authorities urgently unblocked the messenger, without even reviewing the relevant court decisions.

Telegram, represented by Damir Gaynutdinov, a lawyer from Agora International Human Rights Group, complained to the ECtHR that that the decision to block him on the territory of Russia and the fine imposed on him were a violation of Art. 10 of the European Convention Guaranteeing the Right to Liberty dissemination of information. From the company's point of view, interference with the implementation this right was not based on law and was not necessary in a democratic society for the pursuit of a legitimate aim.

Telegram, in particular, indicated that:

• Russian law on information does not clearly describe in what cases the authorities may require access to confidential correspondence of Internet users;

• FSB Order No. 432 on the procedure for presenting data for decrypting user messages did not provide for no guarantees of confidentiality of correspondence for users who do not request mentioned;

• at the request of the FSB violation of the law on information, the terms of its implementation by the company were not specified;

• the requirement to provide decryption keys for unlimited access to the correspondence of six network users was not supported by relevant court decisions (because law on information and FSB order No. 432 do not provide for this) and did not contain guarantees that the information contained therein will be transmitted securely way;

• in the absence of of the relevant court decision, the fulfillment of the FSB requirement could lead to prosecution of the messenger and its employees for violating the privacy of personal data;
• FSB requirement and legislation, on on which it was based were not consistent with the need to strike a balance between the needs of combating terrorism and ensuring security, on the one hand, and the right to privacy and freedom of expression and dissemination of information, on the other.

Sanctions, imposed on Telegram were, in the company's opinion, insufficiently substantiated and disproportionate. At the same time, in violation of Art. 13 of the European Convention, designed to ensure the right to effective remedies, the Russian courts did not assess whether the blocking of the messenger is necessary in a democratic society and was in line with whether it has a stated legitimate purpose.

Row procedural violations gave Telegram reason to complain and for violation of Art. 6 of the European Convention guaranteeing the right to a fair trial.

In connection with The ECtHR raised the following questions with the Russian authorities through the complaint of the messenger:

• Were there measures in regarding Telegram (penalty for refusing to disclose technical data that provides authorities with access to sensitive private information users decision to block the messenger and its immediate execution) by interference to the company's right to freedom of expression, guaranteed by Art. 10 European Convention;

• Was there such interference? based on law and necessary in a democratic society?

• Did this interference legitimate purpose?

• Was the right violated? the applicant company to effective remedies during consideration of the case on blocking the service and appealing the court decision to immediate execution?

• Was the right violated? company to a fair trial when considering a case on a fine in connection with absence in the case of the prosecution and violation of jurisdiction? Was it violated the right to a fair trial in connection with the consideration of the case on blocking the service according to the rules CPC, and not CAS, due to the refusal to provide the defense with sufficient time to prepare for the hearing and familiarize her with the documents in advance, and also the absence of the applicant's representative in court?

The ECtHR also asked the Russian authorities to provide copies of court decisions on which the FSB demand to provide encryption keys was based.

Sources

• Application no. 13232/18 TELEGRAM MESSENGER LLP and TELEGRAM MESSENGER INC. against Russia // European Court of Human Rights. 2020. November 16.