Image edited by Kevin Rothrock.
In the past few years, Russia has become a place where all kinds of online activities are prohibited and policed—even time-honored Internet conventions like routine pornography. While ordinary Internet users in Russia today still have no problem finding adult content, police have begun cracking down on individuals who share porn on social media and peer-to-peer networks.
According to a report [1] written by Nikita Sologub, published on MediaZona, an independent news site that monitors Russia’s prisons and judicial system, a new trend has emerged. Law enforcement agencies—notably the Interior Ministry’s “Department K,” which fights crimes in the information sphere—are now targeting young men who post pornographic materials on their Vkontakte pages and upload such videos when downloading torrents. MediaZona says the campaign is more about padding police statistics than protecting the public, however. With permission, RuNet Echo translates the report here.
As police officers from Department “K” raise their conviction rates by searching for porn on the social network Vkontakte, Russians are increasingly tried for disseminating adult content, despite the absence of a clear legal definition of pornography.
“Hello! In my video posts on Vkontakte, there are a few pornographic clips (without any child pornography whatsoever). I added the video to my page from a community on Vkontakte with the click of a single button. The video is from an open source, and I haven’t downloaded anything from that site. Three months later, police came to my door with a search warrant, confiscating my laptop, and telling me that I violated Article 242 of the criminal code (which bans the illegal distribution of pornographic materials or objects). Now I’m facing prison time. Do the police have the right to do this?”
Online legal forums in Russia are full of messages like the one above, while technical forums are packed with questions about how to delete pop-ups in Web browsers advertising scam artists’ requests for 1,000-ruble “Qiwi-wallet” payments to make porn-dissemination criminal charges go away. MediaZona looks at why judges are handing down only suspended sentences for this felony, and examines why Article 242 has become so popular among the agents of Department “K.”
Suspended offenses
Article 242 first appeared in Russia’s criminal code in 1996. Just a single line, it made it possible to send someone to prison for up to two years for “Illegally producing for the purpose of dissemination or advertising,” or simply for distribution, “pornographic materials or objects.” For more than a decade, legislators left the law unchanged.
In 2012, however—on the heels of the state’s campaign against immorality, which eventually resulted in the adoption of a blacklist targeting banned Internet resources—Article 242 was amended to prohibit “the illegal production and circulation of pornographic materials and objects” (emphasis added). This is the wording in force today.
In their amendments, lawmakers also divided Article 242 into three parts. The first part repeated the provisions of the law’s original wording, making it punishable by up to two years in prison to “produce or distribute illegally pornographic materials or objects.” In the second part of the amended law, legislators granted judges the power to imprison individuals for 10 years if they are caught distributing of such content to minors. The third section introduced aggravating circumstances for the “illegal” distribution of pornography by a group of persons acting according to a prior agreement or by an organized group earning more than 50,000 rubles. A third aggravating circumstance applies to the illegal distribution of pornography “using means of mass communication, including the Internet.” Under these circumstances, individuals can be imprisoned for up to six years.
Though the penalties for “illegally” distributing pornography went up, the criminal code’s actual definition of pornography didn’t get any clearer, says attorney Pavel Domkin. “We still don’t have a law, methods, or legal practices to regulate the circulation of pornography. All the criminal cases related to pornography are based on the opinions of certain art critics, who simply declare this or that content to be pornography, based entirely on their own discretion. There aren’t any clear legal criteria for defining what it is. Second, we have no coherent regulations in place on this issue, meaning that it is unclear how one can sell pornography legally, and, if it is even permitted, what the legal conditions are,” Domkin explains.
It is a felony to be convicted under Article 242’s aggravated circumstances. In 2014, Russian courts convicted 148 people of illegally circulating pornography using the Internet. Despite the gravity of such a crime, only five of these individuals went to prison. The rest remained free: 126 were given probation sentences, 14 were fined, one was given correctional labor, and another was amnestied. Only one person was able to win an appeal and have his conviction overturned.
‘My videos’
According to the online forum Rospravosudie.com, convictions under Section Three of Article 242 can be separated into two large groups. The first group vulnerable to criminal prosecution consists of Vkontakte users who add pornographic content to the “My Videos” section of their accounts, without restricting the public’s access to their pages. “Intelligence” about such Vkontakte pages “reaches” Department “K” in the Interior Ministry, and then agents gain authorization to conduct “search activities to collect samples for comparative studies.” In other words, they download the videos onto a hard drive. Art experts then examine the materials to decide if they qualify as pornography. If so, police officers write a report to this effect, recording the evidence of a crime committed, and submit it to municipal police, who launch a criminal case. In order to learn the identity of a Vkontakte account’s author, law enforcement officers send a request to Vkontakte, which responds by sharing the telephone number and other user data attached to the account.
In 2013, a man living in a small work settlement in the Volga region created an account on Vkontakte. According to the court that convicted him, “acting intentionally, […] he started to search for pornographic videos uploaded by other users, watching them and making sure that they contained pornographic content.” Then, “aware of his criminal intent,” he added from these unidentified accounts to his own page “more than 30 pornographic audiovisual files, that is, deliberately making it possible to download and play these files.” A judge sentenced him to two years of probation, citing violations of the Russian criminal code and the 1923 Geneva Convention for the Suppression of the Circulation of and Traffic in Obscene Publications.
This 93-year-old treaty also served as the basis for a two-and-a-half-year probation sentence handed down to a man named Ustinov living in the Penza region. According to the court, Ustinov added to the “My Videos” section on his Vkontakte page three clips, knowing they contained “demonstrations of sexual deviance and perversion, […] causing sexual arousal, [thereby] forming a cynical, immoral attitude toward sexuality.” One of Ustinov’s friends, another man named Yurkin, whose Vkontakte account was registered under the name “Denis Batonov,” got two years of probation for posting three videos where viewers’ attention “was directed to the genitals and fondling of the genitals, aiming to arouse viewers sexually without any artistic or educational goals.”
According to Vkontakte’s statistics, the videos in question had been viewed six, nine, and seven times, respectively.
P2P and torrents
The second type of criminal cases involving Section Three of Article 242 concerns Internet users who obtain pornography using peer-to-peer networks and torrent trackers, who upload bits of that content to other users, as they download it. According to investigators, this qualifies as distributing porn. A man named Borisov living in Murmansk got a two-year probation sentence because he copied five pornographic videos into a folder on his hard drive and forgot to remove the folder from a file-sharing network. From here, the case was fairly cut and dry: an agent from Department “K” was searching file-sharing networks for the keyword “porn,” leading him to the files on Borisov’s computer, which the agent copied onto a police hard drive and transferred to an expert for examination.
Similarly, a man named Perevalov living in the Yakut city of Neryungri got a two-year probation sentence when he absent-mindedly left a file-sharing application open and running, allowing others to download pornography stored on his computer. He was convicted of “deliberately and illegally distributing pornographic materials by allowing mass viewing and reproduction of the materials to the general public by means of the Internet,” before being thwarted by officers in Department “K.”
“Fully aware of the criminal liability for such actions, Perevalov disseminated pornography, putting his own mercantile interests above the interests of society. The court views this circumstance as an offense against the moral principles of an indefinite number of people, including children, which attests to the heightened social danger of the crime committed, leaving no justification for reducing the severity of the criminal charges,” Perevalov’s court ruling states.
Forensic expertise
In all of these cases, the work of police officers boiled down to a few clicks of a computer mouse, all without the use of any specialized software. Judging by the legal proceedings described on Rospravosudie.com, agents often use the Opera Web browser to view videos and a plug-in called “VKMusic” to download the files. From there, prosecutions under Article 242 depend on investigators and art experts, who—in the absence of a legally enshrined concept of “pornography”—compete to produce more elegant definitions of porn.
For example, one expert in Yakutia wrote in a report: “These materials are pornographic on the following grounds: their content attempts to depict crudely and naturalistically scenes of sexual activity, in order to excite base feelings. Sexual acts are displayed in an obscene form, focusing attention on the genitals, as an end in itself. Additionally, these files contain no literary, artistic, or scientific value, there is no artistic aim, and the storyline is simply about breeding.”
Other art critics are even wordier. One in Khakassia wrote: “[The files] contain vulgar-naturalistic, indecent images of sexual relations between adult people, offending public morality, […] and bearing no artistic, psychological, aesthetic, or thoughtful meaning. They are based on naturalistic depictions of intimate life, the subject of which is demonstrating sexual intercourse, group sex, and the sexual organs. They cynically and repeatedly present, in both normal and perverted forms, sexual acts between people. By design, these videos intend to incite lust (lewd sexual desire). In cynical and obscene forms, they depict sexual behavior.”
To complicate matters further, practically anyone with a college degree in art is able to serve as an expert on pornography, according to attorney Pavel Domkin. “These expert reviews are just people showboating. Every year, there are more and more, and they’re only getting longer. Before, two agencies performed these reviews for the entire country. Today, every region has its own experts. Now there are thousands of them,” Domkin says.
Criminal intent
After an expert review confirms that someone’s computer files do in fact contain pornography, investigators wishing to pursue criminal charges and seek a conviction must prove that the individual intended to distribute the materials.
When it comes to pornography discovered on Vkontakte, criminal intent is established automatically, insofar as all users agree to the social network’s terms of service, which prohibit the distribution of pornography. In the eyes of Russia’s legal system, Vkontakte users cannot be unaware that they violate these rules when they share pornography, meaning that they do so intentionally.
There are no uniform rules with torrent trackers or peer-to-peer file-sharing services, but this doesn’t stop investigators, according to Domkin. “In these cases, they establish intent orally, when interrogating a suspect. An investigator will ask a suspect, ‘Did you install a torrent client on your computer?’ The suspect says yes. ‘Can you explain how it works?’ The suspect explains. And that’s all it takes to establish criminal intent. If a person says he knows how torrents work, it means he is aware that he simultaneously shares pornography as he downloads it from other users, thereby verifying his intent to distribute,” Domkin explains.
Sentencing
Domkin says there are two reasons why courts almost always hand down suspended sentences for convictions of illegally distributing porn, despite the crime’s classification as a felony. Neither reason, he says, has anything to do with judges’ common sense or compassion.
“Insofar as we have no clear legal definition of pornography—but police officers keep opening criminal cases, investigators keep accepting them, and the district attorneys just close their eyes to it all—judges are forced to make compromises, so as not to spoil the conviction rates. So that people don’t go to prison, but so they don’t go complaining, either, trying to appeal to the Supreme Court. The solution is a suspended sentence,” Domkin says.
The second reason is that most of the people charged under Article 242 are young and unwilling to stand up to pressure from investigators. “I have observed the interrogations of men between the ages of 16 and 25,” Domkin says. “A young man posts something on his Vkontakte page that resembles pornography, he’s singled out by law enforcement, and they come to his home and conduct a search. It’s all very serious—a real criminal case. Tears start streaming down the guy’s cheeks, and so on. They tell him, ‘Well, alright. We can make it so you don’t do any hard time, but for that you’ll need to confess.’ He admits his guilt, and gets a special court order, where the judge lightheartedly sentences him to probation. This mainly concerns younger people, whereas a man, say, in his forties, won’t put up with that kind of garbage—there’s too great a chance that he’ll want to defend himself, challenging investigators to prove his guilt, if he’s really guilty of anything. Whereas young people simply break psychologically.”
Only two of Domkin’s clients who were accused of illegally distributing pornography ever refused to confess, electing to take the matter to trial. These men, however, were charged with violating Article 242.1 of Russia’s criminal code, which prohibits the production or distribution of child pornography. Domkin says it took about 18 months before the cases, which never went to trial, were dropped by police because of a lack of evidence. “They were tenacious in their defense, contesting the cases at every step, saying to the authorities, ‘You say this is pornography, so prove it, explain it, and indicate precisely what laws were broken. Specify exactly what laws I transgressed when I shared this content with whomever. Explain it.’ But no such law exists, and the investigators just gave up at this point,” Domkin recalls.
Department K’s ‘success’
Formally speaking, police officers in Department “K” are acting within the law, when they open criminal cases under Article 242 on the basis of simple online searches for Internet users who share pornographic content on social networks and fire-sharing websites. But all this work means they have no time or need to hunt down the real distributors of illegal materials, says Domkin.
“I’m unaware of any cases where police went after either the creators of this content or its true distributors. What about the people who own the porn websites? No, instead they persecute young boys dealing with puberty and all the interests that arouses. I haven’t seen the police haul in one serious person with actual ties to the production or distribution of these materials on an industrial scale—probably because nobody needs troubles like that,” Domkin guesses.
According to him, a large number of sentences handed down under Article 242 don’t actually reflect the number of crimes. The trend, Domkin argues, is merely a convenient way to inflate conviction rates.
Albert Iskhanov, a lawyer in Izhevsk, agrees. “Instead of investigating serious crimes, it’s easier to peek on Vkontakte, draw up a report, and bring in somebody—some kid. This sort of thing takes no time at all. You don’t need any more than a month to close the case. Conducting a search and establishing that content was distributed takes a day, max, or maybe just a couple of hours. The investigators work for a month, and then there’s a special session in court—just a single hearing. So you get a solved felony and a conviction. For the statistics, it doesn’t get any better,” Iskhanov says.