sou · H5B370 · 2017-09-28 00:00:00 — These provisions can also be applicable to acts committed in order to get hold of infor- mation of importance for international work for peace and security in which is participating. 4, Sec. 8 of PC, a person who unlawfully accesses a communication being conveyed by a postal or telecommunications company as an item of post or in a network for electronic communi- cations is guilty of breach of postal or telecommunications secrecy. The scale of penalties is a fine or imprisonment for at most two years. A person who, in other cases, unlawfully opens a letter or a tele- gram or accesses something kept sealed can, under Ch. 4, Sec. 9 of PC, be sentenced for intrusion into a safe depository to a fine or imprisonment for at most two years. In cases of unlawful inter- ception or recording of speech or conversation, there may instead be criminal responsibility for unlawful interception under Ch. 4, Sec. 9 a of PC in certain circumstances. The scale of penalties for this offence is also a fine or imprisonment for a most two years. If a person who installs a technical device with the intent of carrying out an offence under Ch. 4, Sec. 8 or 9 a can be convicted under Ch. 4, Sec. 9 b of preparation to commit such an offence. This rule is a complement to the provisions of Sections 8 and 9 a and one intention is to ease the victim’s and prosecutor’s burden of proof. Finally, it can be mentioned that Ch. 4, Sec. 9 c states that, in cases other than those referred to in Ch. 4, Sections 8 and 9, a person who unlawfully obtains access to information intended for auto- matic processing can be sentenced to a fine or imprisonment for at most two years for breach of data security. Measures not of a criminal nature An act that involves unauthorised handling of information can also result in consequences outside of criminal law for the individual. The act can, for example, form a basis for liability for damages but sanctions under labour law also become relevant if the conduct is linked to employment. Ultimately it can be lead to notice of termi- nation under Sec. 7 of the Employment Protection Act (1982:80). For public employees there are also provisions about disciplinary liability under the Public Employment Act () (1994:260). 14 of the , disciplinary sanction for misconduct may be imposed on any employee who intentionally or by negligence disregards the duties associated with their position. The disciplinary sanctions are a warning and a salary deduction (Sec. 15 of the ). Protection of trade secrets A disclosure of information of importance for international co- operation for peace and security in which is participating can – if the information relates to matters whose disclosure to a foreign power can result in harm to ’s security – be un- authorised handling under the Act on the Protection of Trade Secrets [1990:409]. This can, for example, be the case if the infor- mation relates to matters concerning research, development and production in a Swedish company that is producing military equip- ment or other equipment for ’s armed forces. So there could be situations in which a trade secret is of such importance for the country that disclosure of the information could endanger the in- dependence or existence of the country, i.e. Unauthorised conduct with trade secrets is sanctioned through criminal responsibility and liability for damages. 3 a person who, with intent, unlawfully obtains access to a trade secret is guilty of industrial espionage. Attempt and preparation to commit industrial espionage are also punishable. A person who procures a trade secret in the knowledge that the person providing the secret or someone before them has gained access to it through industrial espionage is guilty of unlawful dealing with a trade secret (Sec. In case law employees’ use and disclosure of trade secrets they have access to in their work has not been held to be punishable dealing with a trade secret. This applies to complicity both in perpetration and as an accomplice. The penalty for industrial espionage is a fine or im- prisonment for at most two years or, if the offence is gross, imprison- ment for at most six years. The scale of penalties for unlawful dealing with a trade secret extends from a fine to imprisonment for at most two years or, if the offence is gross, imprisonment for at most four years. 5 a person who is guilty of industrial espionage or unlawful dealing with a trade secret shall also compensate the damage incurred as a result of the offence or because the trade secret has been used or disclosed without authorisation. Unlawful conduct with trade secrets other than procuring such information is subject to sanctions in the Act on the Protection of Trade Secrets in the form of damages, conditional financial penalties and surrender orders. Sections 6–8 contain provisions about the liability for damages of certain persons who use or disclose a busi- ness operator’s trade secret intentionally or by negligence. Under these provisions the liability for damages applies to a person who was entrusted with a trade secret in confidence in connection with business relations, an employee who has been given access in their employment to a trade secret held by their employer and a person who uses or discloses a trade secret that, according to what they ought to have realised, has been attacked under the Act. 5 See Government 1979/80:176, “amending the Penal Code (espionage etc.)” [om ändring i (spioneri m.m.)], p. In there are provisions on the unlawful dissemination or revelation of secret information in the Criminal Code (39/1889). The Finnish provision on espionage is applicable if a person for the purpose of favouring a foreign state or damaging procures, relays, delivers or discloses or publishes information about matters including ’s foreign relations. Unlike the Swedish equiva- lent this provision is thus not restricted to acts that may result in harm to ’s security but also covers acts that concern ’s foreign relations. This also applies to other crimes of treason in the Finnish Criminal Code. In the criminal regulation of the dissemination or revelation of secret information is mainly set out in the Norwegian Criminal Code (LOV-1902-05-22-10). The requirements for criminal liability under the espionage provision include someone gathering or gain- ing possession, to the advantage of a foreign state or a terrorist organisation or without “noteworthy grounds”, of information linked to any of the fundamental national interests stated in the provision so that the interest concerned may be harmed if the in- formation is disclosed. One example of such fundamental national interests mentioned is ’s relations to other states. The Criminal Code also contains a special provision criminalising the revelation of state secrets. This provision refers to the same object of the act as the espionage provision. Criminal liability for the dissemination or revelation of secret information is not limited in , either, to matters that can result in harm to the country’s security but can also refer to ’s relations to another state. In there are provisions on the unlawful dissemination and revelation of secret information in the Criminal Code (Act no 1052 of 4 2016). The object of the act under the espionage provision is matters that shall be kept secret in view of Danish state or public interests. This term covers, first and foremost, military secrets and state secrets but also covers secrets with a lower level of classification that concern the State’s relations with foreign powers and matters that relate to the economy, trade policy and supply. This provision also covers information concerning the circum- stances of partners that shall be kept secret out of consideration not only of the foreign power concerned but also of Danish state interests. So criminal liability in is not restricted to acts that result in harm to ’s security and criminal liability can also hit the disclosure of matters concerning Danish partners. The Dutch Criminal Code () contains provisions about espionage and other unlawful intelligence activities in a special division about Serious Offences against the Security of the State. These provisions protect both information of importance for the interests of the and those of its , as the interest protected is “any information classified in the interest of the State or of its ”. This means that information received as part of international cooperation or from allied states is given the same protection under Dutch law as the information has in its country of origin. The German Criminal Code (Strafgesetzbuch, StGB) contains pro- visions about espionage and other unlawful intelligence activities in a chapter entitled Treason and endangering national security (Landesverrat und Gefährdung der äusseren Sicherheit). This code also contains provisions on breaches of the duty of secrecy. Criminal responsibility under the above-mentioned provisions for unlawful dealing with information is limited to information that is a “state secret”. State secrets are facts, objects or knowledge which are only accessible to a limited category of persons and must be kept secret from foreign powers in order to avert a danger of serious prejudice to the national security of the Federal Republic of As a main rule, secret information originating from other states – including secret information of allied states – is not a state secret. However, a state secret originating from another state can be a German state secret if it has been confided in a German body. This is especially the case when German bodies receive certain information from foreign bodies within the framework of military and other cooperation. In the same way the term state secrets covers secret information within the framework of NATO cooperation. In there is criminal legislation regarding espionage and other unlawful intelligence activities in the Security of Information Act, the Criminal Code and the National Defence Act. There is some overlap in this legislation. As uses both civil law och common law, these written acts are supplemented to a great extent by case law made by the courts. Act (SOIA) is of most importance. SOIA regulates the dealing with information that may harm and its interests. The focus of the Act is on ’s security. However, the revelation of infor- mation that in the first place harms a partner country or an organi- sation is punishable under the Act if the revelation would also affect ’s international relations. This could be the case if the Canadian Government’s possibilities of conducting diplomatic or consular relations or international negotiations were threatened or impaired as a result of the revelation. Introduction of a new criminal provision on foreign espionage The protection under criminal law is neither comprehensive nor strong Espionage-like acts aimed at international cooperation can result in considerable damage to international cooperation for peace and security, our partners and any operations. As a result, this conduct can also harm – and ultimately ’s security – since ’s security is dependent indirectly on security in other countries and on international cooperation that is successful and effective. is also dependent on good and trusting relations with other countries to access information that may be of im- portance for ’s security and to be able to take full part in various forms of activities for cooperation for peace and security. If it is not possible to bring legal proceedings against persons who have committed espionage-like acts aimed at sensitive information handled within the framework of international cooperation for peace and security in which is participating, this could affect ’s relations with other countries and partners, which could, in turn, result in defence and security policy consequences for by having an adverse effect on the willingness of other countries to engage in cooperation and exchanges of information in questions of importance for ’s security. The protection under criminal law for sensitive information of importance for international cooperation for peace and security in which is participating and that does not meet the harm requirement in the espionage provision is neither comprehensive nor particularly strong. This is also so when account is taken of the fact that greater dependence on international collaboration in the area of security and defence policy may have the result that more information concerning ’s cooperation with other countries and organisations for peace and security is judged to be of such importance for ’s security that it may be covered by the espionage provision. But the espionage provision is still reserved for conduct that may have a negative impact in some substantial way on ’s security in the sense of the country’s independ- ence or existence.6 This means that information that is only of indirect importance for ’s security mainly falls outside the scope of the espionage provision – and therefore also the scope of the other provisions in Ch. 19 of PC. In view of the importance of 's international cooperation for peace and security, the protection under criminal law for information handled within the framework of such cooperation cannot be said to be fit for purpose. 6 The report of the Inquiry on reinforced protection against the intelligence activities of foreign powers: “Espionage and other unlawful intelligence activities” [Spioneri och annan olovlig underrättelseverksamhet] (SOU 2012:95), p. 206 and 207. On the contrary, it is unsatisfactory that espionage-like acts aimed at such cooperation may, at worst, fall completely outside the punishable area and may, at best, only be punished as misuse of office or a breach of a duty of secrecy. Moreover, the protection of such information under criminal law is much weaker in than in the other Nordic countries. Criminalisation of espionage-like acts aimed at sensitive information handled within the framework of international cooperation is justified One important question in deliberations about whether some particular conduct should be criminalised is whether the reasons for criminalisation are strong enough to justify broader criminal responsibility. Or, to put it another way, whether the problem is one that should be solved through criminal law or whether there are other possibilities of solving it. Alternative sanctions and other possibilities of remedying the problem must also be taken into account. In addition, the effect of extending criminalisation should also be considered. Ultimately, criminalisation of espionage-like acts aimed at sensitive information handled within the framework of international co- operation for peace and security in which is participating is based on an interest on safeguarding ’s security. However, in our view, the immediate and specific protective interest for criminal regulation should be ’s relation to another state or an international organisation. The protective interests that criminalisa- tion is intended to safeguard are strong and argue for criminalisation as the method to choose. The alternatives to criminalisation available, including protective security work, amendments to secrecy legislation, liability for damages and labour law sanctions, are, in our view, not sufficient to solve the problems of espionage-like acts aimed at sensitive infor- mation handled within the framework of international cooperation for peace and security in which is participating. In addition, there is reason to assume that a criminal sanction would be an effective means of countering espionage-like acts of this kind. In view of the interest that new criminal law regulation is intended to protect, ’s relation to another state or an international organi- sation and – ultimately – ’s security, there is also good reason to deploy society’s resources to take legal proceedings against these acts. Regulation of this kind would also signal to other countries and partners that takes a serious view of these acts. In our view, criminalisation of espionage-like acts aimed at sensitive information handled within the framework of international cooperation for peace and security in which is participating is justified. Drafting and classification of the provision We propose adding a new criminal provision to Ch. 19 of PC. The provision has been modelled on the espionage provision and covers espionage-like acts that relate to secret information concerning a matter whose revelation to a foreign power or association can result in serious harm to ’s relation to another state or an international organisation. The offence is named foreign espionage. The criminal provision will only be applied to conduct that does not meet the requirements of Ch. 19, Sec. 5 of PC. The criminal provision is justified by the Swedish need to cooperate with other countries and international organisations. Ultimately the criminal provision is based on an interest of safeguarding Swedish security. However the most appropriate protective interest for this criminal regulation is ’s relation to another state or inter- national organisation. It follows from this that only acts that can endanger or impair ’s foreign relations in a substantial way are covered by the criminal regulation. The requirement that the act may lead to serious harm to ’s relation to another state or an international organisation ’s relations as the interest worthy of protection. Such regulation conforms to the present systematic approach regarding offences against ’s security and is well in line with how countries including , and have chosen to protect information of the present kind. The punishable act consists, following the pattern of the offence of espionage, of someone without authorisation procuring, trans- mitting, giving or disclosing information whose revelation to a foreign power or association can cause serious harm to ’s relation to another state or an international organisation. The regulation also covers a person, without authorisation, producing or having any dealing with a written document, drawing or other object that contains any information referred to in the criminal provision. Requirement of direct intent to aid a foreign power or association In common with what applies to espionage, and for the same reason as justified the restriction in that case, criminal responsibility is only considered when the conduct has taken place with direct intent. Here direct intent means the same as direct intent. Unlike what applies to espionage today, the punishable area is not limited to solely cover cases where the perpetrator's intent was to aid a foreign power. It is not likely that the groupings that usually occur in areas for international peace-support operations in which participates and that are affected in one way or another by the conflict that justifies the operations will always come under the definition of a foreign power even though they are, in practice, a power factor and a clear and real threat to an operation. To meet the need for criminalisation and the requirement of effective criminal legislation, the criminal provision also includes conduct that entails someone deliberately giving information to such a group or association. The term foreign association therefore refers to a grouping that represents an opposing interest but that does not necessarily need to be a foreign power. However, for the criminal provision to be applicable the actor concerned is required to hold a position of power. But there is no requirement that the grouping has to be organised in a particular way to be covered by the term. The following can be mentioned as examples of what can be covered by the term: the UCK guerrilla in Kosovo, warlords in and in . The reasons for letting the criminal provision also cover conduct that entails someone deliberately giving information to a foreign association are also applicable to the other provisions in Ch. 19 of PC that are of relevance here (espionage, unauthorised dealing with secret information and negligence with secret information). For this reason and in order to arrive at logical and consistent legislation we propose also amending these provisions to also cover cases where the perpetrator's intent was to aid a foreign association. Requirement of serious harm to ’s relation to another state or international organisation A precondition for criminal liability is that a revelation of the information concerned to a foreign power or association may result in serious harm to ’s relation to another state or international organisation. International organisation same as in Ch. 2, Sec. 7 a of PC, i.e. an independent legal entity according to international law. These organisations are generally associations of states, examples being the UN, the EU, NATO and the . The requirement of serious harm means that only serious acts can result in criminal liability. The expression serious harm means that the threshold for a punishable act is higher than that the act, as in Ch. 15, Sec. 1 of PAISA for example, disturbs ’s inter- national relations. So a precondition for criminal liability is that the act involves information of great importance where there can be any doubt that disclosure can have serious consequences for ’s relation to the country with which it is collaborating or the international organisation. Conceivable examples of such con- sequences are that what has happened can result in being excluded from further cooperation or no longer being able to take part in the exchange of secret information. The Swedish body taking part in the cooperation is probably best placed to assess the consequences of information being disclosed through action that can be attributed to Swedish personnel. If the information results in the exposure of criminal or improper conduct as, for example, in the case when the Swedish UN official disclosed that serious offences had been committed by UN personnel, that type of exposure should not be held to be capable of seriously harming ’s relation to the country or international organi- sation concerned even though internal secrecy rules have been breached and the exposure have caused irritation in the body con- cerned. The requirement that, to result in criminal liability, a dis- closure of secret information has to be unauthorised, also excludes reports of criminal offences to a competent body, for example, the Swedish Authority or the Swedish Prosecution Authority from the scope of the criminal provision. The term serious harm also conforms well to the division into four protective security and the corresponding degrees of damage currently used by the Swedish Armed Forces that are pro- posed to be incorporated in a new protective security act.7 They are in rising order: limited, corresponding to minor damage, confidentiall, corresponding to not insignificant damage, secret, corresponding to serious damage, and top secret, corresponding to exceptionally serious damage. The criminal provision is linked to serious damage, meaning that the two highest levels are covered by criminal liability. Authorities such as the Swedish Armed Forces, the and the are likely to already have experience of making assessments of harm linked to these two protective security . A limitation to secret information The punishable area – unlike what applies to espionage – is limited to acts that entail dealing with secret information, i.e. information covered by secrecy under PAISA, or some other statute. In the first place this ought to cover secrecy relating to foreign affairs under Ch. 15, Sec. 1 of PAISA and secrecy relating to defence under Ch. 15, Sec. 2 of PAISA, but other secrecy regulations such as those for the protection of intelligence activities under Ch. 18, Sec. 2 of PAISA could also be covered.