The Constitutional Court allowed parents to use remote wiretapping programs on their children’s smartphones

The Constitutional Court (CC) of the Russian Federation has actually allowed citizens to use remote wiretapping programs on smartphones when it comes to the safety of their children. Vladivostok resident Pavel Vilke, convicted of illegally recording conversations through a parental control application installed on the smartphone of his seven-year-old son, complained to the authorities. Mr. Wilke challenged the constitutionality of Art. 137 of the Criminal Code of the Russian Federation on violation of privacy, demanding the return of a clause on criminal punishment only for “selfish” collection of data about citizens. The Constitutional Court decided not to revise the Criminal Code, indicating that the legislator can limit the use of parental control applications. The case of Pavel Wilke was decided to be reconsidered.

Vladivostok resident Pavel Wilke appealed to the Constitutional Court at the end of 2023, challenging the current interpretation of Art. 137 of the Criminal Code of the Russian Federation “Violation of privacy” as containing “uncertainty”. Part 1 of this article of the Criminal Code of the Russian Federation talks about the illegal collection and dissemination of information “about the private life of a person, constituting his personal or family secret” without the consent of the citizen. Mr. Wilke noted that until December 2003, the rule was applied only when the accused collected data “out of selfish or other personal interest and caused harm to the rights and legitimate interests of citizens.” In his complaint to the Constitutional Court, he actually demanded that the wording be returned to the code.

The reason for appealing to the Constitutional Court was the litigation of Pavel Vilke. In 2020, he installed a parental control application on the smartphone of his seven-year-old son, who lives with his mother, and remotely listened and recorded what was happening. 49 audio recordings were made (20 seconds each), which, as the Constitutional Court press service explained, Mr. Wilke “submitted to the divorce proceedings and to the police as evidence of abuse of a child.” The court qualified Mr. Wilke’s actions as illegal collection of information about private life. In September 2020, the magistrate of judicial district No. 5 of the Pervorechensky judicial district of Vladivostok found Pavel Vilke guilty under Part 1 of Art. 137 of the Criminal Code of the Russian Federation, fined him 80 thousand rubles.

The case was reviewed several times. Thus, in September 2021, the Pervorechensky District Court of Vladivostok acquitted Pavel Vilke, stating that he installed “a software tool not prohibited by law” on the phone “to protect the child from the alleged illegal actions of his mother.” In February 2022, the same court (after the decision was overturned by the Ninth Court of Cassation of General Jurisdiction) left the original sentence unchanged, but released the convicted person from punishment due to the expiration of the statute of limitations. In December 2022, the Supreme Court (SC) of the Russian Federation recognized the punishment of Pavel Vilke as correct, indicating that simultaneously with the wiretapping of his son, information was collected about persons living with him, “whose family member the accused was not.” In April 2023, the Deputy Chairman of the Russian Armed Forces agreed with this position.

The ruling of the Constitutional Court of the Russian Federation recalls children as a priority of state policy, the responsibilities of parents to take care of their health and upbringing, and the “close emotional connection” between them.

“A parent’s natural desire is to know whether their child is okay,” the court filing states, stressing that a parent “should not be prevented from providing for the child’s protection” through legal means. The thesis is repeated that Pavel Wilke installed the application on his son’s smartphone legally: the program was “specially created to ensure the safety of the child,” and its use is not limited by law. At the same time, the Constitutional Court understands that children are “not always informed” about such data collection, but possible conflicts between parents and children on this basis are proposed to be resolved “within the framework of their interpersonal (extra-jurisdictional) relations.” Whereas with conflicts between parents who do not live together, the Constitutional Court suggests turning to the courts in a “civil legal manner,” including when using a parental control application. Finally, the Constitutional Court recognizes that the possible wiretapping of “an indefinite number of persons” through the application creates threats to the rights of other citizens. But in this case, the court does not consider the balance of the right to privacy and parental rights to be violated – “taking into account the special constitutional value of childhood.” The court sent the case of Pavel Vilke for review.

Citizens have previously been prosecuted for using information collection devices at home.

The most resonant case in 2018 was the case of Kurgan farmer Evgeny Vasilyev, who bought a Chinese GPS tracker for tracking a calf from an online store and became a defendant in a criminal case under Art. 138.1 of the Criminal Code of the Russian Federation on illegal trafficking of special technical means.

After the story reached President Vladimir Putin, the prosecution of the farmer was stopped with an apology. Meanwhile Art. 137 of the Criminal Code of the Russian Federation is relatively “rare”: the Moscow City Court database contains information on only 76 cases under this article over the last decade, and, say, in the electronic file cabinet of the Primorsky Regional Court there is about a dozen.

The press service of the Constitutional Court emphasized that the collection of information in circumstances that are considered by the parent as threatening the child (“not excluding honest misconception”) should not serve as a basis for criminal prosecution. The Constitutional Court decided to leave Art. 137 of the Criminal Code of the Russian Federation without changes, indicating that the use of parental control applications can be limited by the legislator.

Alexander Voronov