Vladislav Arkhipov: ’The digital format should be an accessory tool and not the basic one’

Could you please tell us what issues your team was dealing with when creating the GosTech platform?

My applied competencies are primarily related to information law and copyright law, while my scientific ones are primarily concentrated on the theory and philosophy of law and the history of legal doctrines. However, oddly enough, there is no contradiction here. In particular, I deal with the legal issues of personal data processing, dissemination of information, legal problems of “end-to-end digital technologies”. That is, I deal with everything that is now called “digital law”.

At the University, these competencies are now largely concentrated in the Centre for the Study of Information Security and Digital Transformation, which I had the honour to head. This year, we are launching a master’s programme titled “Information Law and Data Protection”, aimed at training professionals in this field.

As part of the project, our competencies were in demand in the Science and Sports groups. The topics that we were dealing with included, first of all, the classic issues of information law in the digital environment, such as: identification of subjects of legal relations; legal significance of actions performed on various digital platforms; legal significance of electronic signatures; and the like. Now, we talk a lot about high-priority (and extremely interesting!) issues of end-to-end digital technologies, such as artificial intelligence, distributed ledger systems, and so on. Yet in practice it almost always turns out that the most pressing issues relate to the problems I mentioned. They are old and well-known, but they are manifested in a new way as technology develops.

I must emphasise that my personal role was more limited to expert advice on certain issues, while a significant part of the work was done by my colleagues. Anton Braginets participated in the work on the Science domain. The Sports project was led by my colleague, head of the master’s programme “Lawyer in the Field of Sports Law (Sports Lawyer)”, Associate Professor Ilia Vasilev. My postgraduate student Georgii Zabarinskii helped him with digital law issues under my supervision.

How developed is the legislation in this field today? Are there any significant issues that need improvement?

From an expert point of view, it is very difficult to comment on the situation in a few sentences.

On the one hand, the legislation and, moreover, the doctrine in these areas are much more developed than it is commonly thought. The regulatory concepts of ’end-to-end digital technologies’ have only recently emerged at the level of strategic planning documents and legislation relatively (and everyone today is talking about technologies such as blockchain, virtual reality, and so on). Yet the legal issues behind them took shape long before that. Law is aimed at regulating relations between people and harmonising their interests through reliable communication based on trust. And the digital environment as such emerged much earlier than the ’Digital Economy’ programme. The most acute problems in this area are related to various modes of information, ways of expressing will in communication mediated by information and telecommunication technologies, and the like. These problems have also been known for a long time and have already been resolved in a certain way. I therefore think that the legislation in this area, especially the Russian one, can be considered well-developed.

On the other hand, it would be correct to say that the legal problems under consideration are of an “end-to-end” nature. They accumulate in accordance with the snowball effect as technological development progresses. For example, the problem of identifying subjects of legal relations arose in the world in the very early years of the existence of the Internet, at experimental stages (long before the 1990s). It became even more aggravated at the start of its noticeable commercial use. There are different approaches to determining this period; some researchers believe that that this happened in the early 1990s. This problem, of course, persists even now, since nothing can eliminate its background, i.e. a “legal gap” between a living and whole person, a genuine subject of law, and a computer terminal. Identification in the digital space is always built on some kind of legal presumption or fiction. The general principles of approaches to solving this problem have also been known for a long time, but each time they need new relevant interpretations depending on the technology used, the type of relationship, their subject, and so on.

What features will developers of digital services face here? How can they deal with them in your opinion?

In the legal doctrine related to the legal problems of relations mediated by information and telecommunication technologies, a range of systemic problems have long been known. These problems manifest themselves in almost any digital service.

They include the already considered problem of user identification and definition of its jurisdiction. The latter requires answers to questions whether foreign entities can use the platform, and how otherwise an effective legal and (or) technical tool for restricting access will look against the background of the mentioned identification problem. The following is also considered: limits of the platform’s responsibility as a possible information intermediary; legal qualification of automated actions (up to modern complex algorithms and neural networks); and some others, including those related to specific and very practical branches of law. In this regard, we can recall: the problems of the validity and reliability of electronic documents; the legal qualification of various phenomena of the digital world from the tax law perspective, which should never be forgotten; and much more.

The main principle that enables developers to deal with it is very simple and reliable. It has long proved itself in practice, but not all of them like it, since it involves extra costs and organisational difficulties. It consists in the fact that a lawyer should participate in the development of a digital service not at the final stage of the project, when it is no longer possible to change any technical parameters or functionality of the service, but at the stage of creating its initial concept. Sometimes very good creative entrepreneurial or technical ideas come up. Yet they are fraught with such legal risks that in real life it is better to refuse them immediately. But sometimes the opposite is true: a false idea of legal risks can prevent you from deciding on something quite acceptable from the legal perspective.

In Russia, the Gosuslugi portal is successfully operating. It provides a wide range of services. There is also the KAMIS museum system aimed at automating work related to collections and exhibitions. There are also other e-services. What other aspects of society, in your opinion, can be facilitated by the transition to a digital format?

Almost anything, technically speaking. However, we should keep in mind that the digital format should be an accessory tool and not the basic one. Firstly, this is due to the need to maintain normal human relations. I mean normal in terms of mental health and healthy development of a person as a social being, and normal in terms of the effectiveness of many processes where it is nice to have real-world communication. As “post-COVID” studies show, totally remote work and education mode has a negative impact on this side of life.

Secondly, from the point of view of the strategic aspects of information security, it is necessary, figuratively speaking, to always have a “Plan B” regarding the implementation of various processes in the event of a power outage. The digital format as we understand it in our everyday language cannot work without electricity. Finally, there are areas in which the digital format is obviously inappropriate or even impossible. These include: the religious side of life (although here some Western denominations also decide on controversial experiments); the most serious types of psychological assistance; parenting; and some others. Of course, all of this is subject to discussion. There are different value-based positions, including the one I have mentioned, and it seems more than convincing.