Secret collection of forbidden things. The data bank should contain only undeniably extremist materials

Alexander Verkhovsky's column for Nezavisimaya Gazeta.

A draft law has been submitted to the State Duma, which is designed to legalize the creation of a data bank that includes all extremist materials. What exactly is supposed to be created, why, what will come of it and whether it should be done - these are the first questions that come to mind.

Since the word "extremist" is used in everyday speech in too many different ways, it is worth to start by recalling what it is about. The law defines extremism very broadly: from an attempted rebellion or terrorist attack to intolerant statements about a particular group. Any statements in this spirit, made in any genre - from a leaflet to a video, from a thick book to a separate remark on the Web - can be recognized as "extremist materials" if the prosecutor decides so and the court agrees with him. Further, such material, under some name or with some description, is entered into the Federal List of Extremist Materials (FSEM), maintained on the website of the Ministry of Justice. After that, any person who "mass disseminated" - whatever that means - such material can be punished under Art. 20.29 of the Code of Administrative Offenses. It is important that this composition is formal, that is, ignorance that the material is in the FSEM does not relieve responsibility. Hence the considerable number of people punished: since 2016, it has fluctuated between 1,500 and 2,000 per year.

With the application of Art. 20.29 there is a fundamental problem: FSEM has long exceeded 5 thousand items, so only a person with mimetic memory can remember it, and just no one can check such a list in everyday life. Worse, so many of the names on the list are such that it is problematic to unambiguously understand them. Of the latest additions - "Molotov Cocktail". An audio recording of a song by the group “Nothing good” - for example, the question immediately arises whether a video recording of the same song is prohibited. And what if a person heard and reposted such an audio recording without knowing the name of the song, much less the name of the group? And many points are simply impossible or very difficult to understand. Again, from the latest additions: “Cry of the Soul” (video) ”- what is it? In short, a citizen cannot in good faith take sufficient action to avoid falling under Art. 20.29.

However, the FSEM is just as incomprehensible to law enforcement officers or Roskomnadzor (for the purposes of blocking access to the Internet). The banned materials themselves remained somewhere in the archives of some court, and you need to guess whether the material is banned in front of you using the same FSEM. Yes, you can send a request to the court if a specific item is suspected, but the answer will not come very quickly, and this method does not help you understand if the material is prohibited if you do not suspect a specific item in the FSEM. Therefore, in real life, people are persecuted under Art. 20.29 is far from 5 thousand points of this list, but for those that, firstly, are understandable to the police, and secondly, are really replicated (after all, the FSEM is full of dead souls).

For many years, representatives of the Main Directorate of the Ministry of Internal Affairs for Combating Extremism have been saying that at the interdepartmental level, the creation of a data bank of the banned materials themselves has been agreed, so that operatives and other employees with the appropriate clearance can compare the material they are interested in with the originals, and not guess at the FSEM. But for some reason, this data bank still does not exist. Perhaps, due to bureaucratic reasons that are not very clear, it could not have been created without mentioning it in the law "On countering extremist activity." Now this amendment will be introduced, and the data bank, perhaps, will really appear and make the life of operatives and employees of Roskomnadzor more convenient, and their work more efficient. Especially if you manage to make some more automated search for this data bank, so as not to manually check everything in a row.

What will change for citizens first of all because of this is quite clear: the number of cases under Art. 20.29 of the Code of Administrative Offenses will be able to grow at times, if the police so desire. Roskomnadzor will be able to block much more pages on the Internet containing those same “extremist materials”. And since so many materials are reproduced not on ordinary pages, but on sites and platforms whose address starts with https, not http and on which it is impossible to block a separate page, this will become the basis for a sharp increase in the number of blocking requests to the administrations of the platforms themselves from then issuing penalties if something isn't blocked (or "slowing down" as just done with Twitter on a different but related issue).

All this will be presented as a great success in improving security in our society. And not without reason: among the banned materials there are quite a few completely misanthropic, calling for murders, pogroms, etc. But these materials are not even the majority. Most are various intolerant writings, corresponding songs or memes, and these thousands of intolerant “materials” are actually randomly selected by the law enforcement system from an immeasurably larger stream of other similar statements. And it is hardly fair to prosecute people for distribution, that is, for any reproduction of these randomly selected texts, videos and pictures, despite the fact that the distributors themselves are not able to guess that these are the ones that are prohibited. And the more massive injustice is happening, the less security becomes. This seems to have been known for a long time. Finally, there are a lot of “materials” in the FSEM that are clearly prohibited even with our very broadly worded legislation. For example, quite a few people have already paid fines for reposting the banned, let's say, due to a misunderstanding of the clip "Kill astronauts!".

The problem lies in the very idea of ​​banning “extremist materials”. The legislator once, in 2002, obviously proceeded from the hypothesis that if bad, inflammatory texts are banned, then there will be fewer outrages. But in practice, especially with the expansion of access to the Internet, it became clear that this does not work: if a certain radical “material” is not very popular in the relevant circles, it will not spread much anyway and will be replaced by others, and if it is popular, then the speed its distribution will be simply incomparably faster than the speed of imposing bans and even our semi-automated blocking. From this one could conclude that the whole idea with the FSEM is not constructive. It is not for nothing that there is no such thing in any European country, although they know how to prosecute people for inflammatory statements. But the conclusion, obviously, is different: you just need to make the system technically more efficient, and then finally it will be possible to really exclude "extremist materials" from at least open communication. It can be said in advance that this will still not work, although the number of blocking on the Internet and administrative penalties will increase.

The viciousness of the FSEM idea does not mean that a bank of such materials is not needed in itself. Absolutely the opposite. A bank of materials that has already been given a legal assessment in the framework of various litigations is good and right, since it really facilitates the work of law enforcement agencies. It would be better to just cancel the FSEM along with Art. 20.29 of the Code of Administrative Offenses, and replenish the data bank with materials that became the basis for sentences for certain illegal statements. There are already a lot of such materials. Then, if citizen A was convicted for disseminating text X, and then citizen B was brought for the same, the new court would not have to deal with the harmful qualities of text X itself. But of course, it would still have to deal with citizen B, including its motives, because to punish people for the distribution of any material without proving an unlawful motive, as is done now under Art. 20.29 of the Code of Administrative Offenses, is illegal in itself.

Sources

• Secret collection of the forbidden. The data bank should contain only indisputably extremist materials // Independent newspaper. 2021. March 16.