Legal Regulation of the Use of Information Technologies in International Economic Activity

Gulemin Artem Nikolaevich PhD in Law Associate professor, Department of Information Law, Ural State Law University named after V.F. Yakovlev 620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 23, office 205 artem_gulemin@mail.ru Other publications by this author

1. Justification of the relevance of the problem.

The development of information and telecommunication technologies, their introduction into all spheres of human activity, including their advanced use in the economy, along with the emerging practice of import substitution, obviously indicate the need for legal support for the use of ICT by defining the basic directions of development of legislation by including them in strategic planning documents and the direct adoption of legal acts on the use of ICT in economic activity.

The Strategy for the Development of the Information Society for 2017-2030 ^[1] declared one of the priorities of the development of society the formation of a new technological basis for the development of the economy and ensuring national interests in the field of digital economy. The main characteristics of the digital economy can be defined, in particular, a significant increase in the involvement of citizens and business entities in working in the digital space, taking into account the need to create an infrastructure for interaction of subjects; the creation of sustainable digital ecosystems for business; reducing the costs of subjects when interacting with each other and the state; increasing the competitiveness of the economy through digital transformations in all spheres of society ^[2]. The digital economy is becoming not only a catalyst for the modernization of human activity in modern conditions, but also an integrator of many areas of economic and socio-cultural activity ^[3]. The analysis of the ongoing economic processes allows us to determine that the development of the digital economy of the Russian Federation is going in the same direction with the trends in the formation of the global virtual economy. Currently, due to the circumstances associated with the pandemic, virtual commerce has become widespread in the retail sales segments, including food products. As a result, opportunities are being formed for the use of augmented reality and virtual reality technologies in the offline and online sales segment. The development of a new generation of communication networks (5G technology) with an increase in data transmission speed will allow not only to carry out electronic exchange trading in real time without delay, but also to form new markets for providing various types of data and services. The use of technologies for processing large amounts of data along with the development of blockchain technologies allow us to talk about the evolution of money and the formation of national digital fiat currencies.

Despite the increasing political and economic isolation of the state, the Russian Federation remains a party to many international legal acts and remains committed to the principles of ensuring the fulfillment of the obligations of the Russian Federation under international treaties and the exercise of the rights of the state arising from these treaties while respecting the economic sovereignty and economic interests of the Russian Federation, ensuring the country's defense capability and state security ^[4]. Therefore, it remains relevant to preserve all ways of state participation in international law-making, in particular on issues of international economic cooperation, both in the public and private legal space. With this in mind, it seems necessary to identify certain areas for improving national and international legal regulation of economic activity in the field of high technologies.

2. Scientific and technical cooperation in international economic activity.

One of the key tasks of Russia's scientific and technological development is to ensure international leadership, including by increasing the contribution of the Russian Federation to the definition of the global scientific and technological agenda and its implementation ^[5]. Unlike a number of other states, the leadership of the Russian Federation in this area is not declared an end in itself and should be considered in the context of mutual cooperation with the world scientific and technical community and the definition of the international agenda in the scientific field. The priority goals, objectives and directions of the Russian Federation's policy in this area are defined by the Concept of International Scientific and Technical Cooperation of the Russian Federation ^[6]. The peculiarity of this document is determined by the shift of emphasis on the sphere of public science, the strengthening of the role of scientific diplomacy, at the same time, the features and conditions of innovative development remain outside the scope of the document ^[7].

The achievement of goals in the form of increasing the competitiveness of technologies, entering the world market of innovations, high-tech goods and services, undoubtedly, should take place with the direct support and participation of the state, however, the absence in this Concept of mentioning the need for balanced development of applied and fundamental international scientific and technical developments and insufficient involvement of commercial organizations as the main consumers of the results of cooperation seems threatening.. As a consequence, it is necessary to identify economic entities in policy documents as initiators of demand for innovative products, which should further ensure the competitiveness of the applied research and development sector.

In conditions of limited state access to the international market of high-tech information developments, the import substitution necessary as a result, the joint participation of commercial organizations in domestic and international scientific and technical cooperation will simplify the development and implementation of new technologies and can be carried out and supported by the state in the form of contracts

- exchange of scientific and technical achievements, patents for inventions, know-how, allowing partners to reduce the costs of relevant research;

- focused on the joint implementation of R&D;

- on technical cooperation for joint development, testing, adaptation and implementation of new technologies:

- student contracts for the purpose of training personnel at partner enterprises

- commercial agreements on further technical assistance in the form of technical advice, quality control and maintenance.

The inclusion in the Concept of international scientific and technical cooperation of areas of scientific and technical cooperation, the creation of international research teams, the purpose of which will be to satisfy the interests of the business community, as well as the development of public-private partnerships in the development of breakthrough technologies, can, in our opinion, in the long term, the basis for the development of the digital economy, independent it depends on external factors and the participation of foreign manufacturers of both software and hardware technology.

3. Development of digital ecosystems and online sales systems in international economic activity.

The concept of "ecosystem" is now beginning to be used not only by major market players (BEAC, Yandex, Tinkoff, MTS and others). Combining various services provided through the use of a single information system in which the user is logged in allows the seller offering a specific product or service to increase the user base, reduce the cost of attracting customers, personalize the products offered by processing big data, and the user can solve various tasks within the ecosystem with access to all services through a single account.

There is currently no normative definition of the concept of "ecosystem", this is associated by researchers with the novelty and specificity of the phenomenon ^[8]. The concept of "digital economy ecosystem" existing in the Information Society Development Strategy makes it possible to determine its individual features – the presence of a partnership agreement between various organizations, the interaction of technological platforms and information systems of these organizations, the possible use of information systems of state authorities of the Russian Federation in the ecosystem. At the same time, it is already possible to distinguish three main ways of creating an ecosystem, two of which do not correspond to the partnership feature stated in the definition: independent development of new business lines by the organization and their subsequent integration into the ecosystem; acquisition of a third-party company and its inclusion in the ecosystem; conclusion of a partnership with minimal investment (in this case, the partner can work immediately with multiple ecosystems). The lack of a full-fledged legal definition and regulation of the ecosystem forces organizations to use existing legislative structures when creating and developing an ecosystem. And if the issues of antimonopoly regulation can still be resolved by the current legislation with the involvement of various state bodies in matters of mergers and acquisitions of some services by others, then some emerging issues require additional legal regulation.

In particular, it is necessary to solve the problem of exchanging user information within the ecosystem. Information about the purchase, for example, of medicines in the pharmacy service of the ecosystem should not fall into its banking service in order to make decisions on the loan based on them. Otherwise, it clearly contradicts the basic principle of personal data processing, according to which only those data that meet the purposes of their processing are subject to processing ^[9].

The same applies to processing large amounts of user data (seemingly unrelated) in order to identify their preferences for further personalization of offers. On the one hand, information about a person obtained during the processing of big data by a neural network, of course, cannot be regarded as his personal data in the sense of personal data legislation, however, the accuracy of such information after processing – information about religious beliefs based on food purchases or information about the state of health based on drug purchases – approaching absolute, should force the legislator to raise the issue of the limits of the permissibility of processing big data about an individual and making legally significant decisions based on such processing.

The creation and development of ecosystems is often not limited to the borders of one State. Thus, according to the analytical company IDC, the organizations included in the Global2000 list are striving to expand their industry ecosystems as the next stage of digital transformation, and by 2025 more than 80% of companies will develop ecosystems and more than 60% will form cross-ecosystem teams that allow exchanging information among themselves ^[10]. In these conditions, the existing legal acts of UNCITRAL (in particular on the settlement of disputes online) are clearly insufficient, and international law-making mechanisms should begin to work ahead of the clock to create a regulatory framework for the work of transnational ecosystems, and the Russian Federation, within the framework of international law-making, should defend, in particular, the mechanisms of cross-border transfer of information and storage of personal data enshrined in national legislation. user data in data centers located on the territory of the state.

Online trading currently also tends to shift to cross-border sales. Thus, the presence of wholesale warehouses on the territory of another state (for example, China), from where the goods will be delivered to a retail consumer in Russia who ordered it through an online store, legally exempted from customs duties and VAT, allows companies not only to save on payments to the budget, but also to expand their assortment, increase competitiveness and expand geography sales. Similarly, this scheme can work in the opposite direction. It is believed that cross-boarding in Russia has quite good prospects, but so far the state does not consider offshore Internet companies as a possible source of income primarily due to the fact that the tax authorities of the Russian Federation do not have the necessary technological and information base to perform the work of searching and identifying hundreds of companies in various jurisdictions ^[11] and as a consequence, the notification provided for in Chapter 3.4 of the Tax Code of the Russian Federation ^[12] about foreign companies under the control of a resident is made only by large Russian organizations. Taking into account the provisions provided for by the Multilateral Convention on the Implementation of Measures Related to Tax Agreements, in order to counteract the erosion of the tax base and the withdrawal of profits from taxation ^[13], the state should adjust bilateral agreements on the avoidance of double taxation in terms of the exchange of information about companies controlled by a resident in other states.

4. The use of information technologies in the format of import substitution.

The topic of import substitution, which was first raised at the regulatory level in 2012, was primarily related to the food security of the state. The government commission on import substitution, established in 2015, identified industries in which the share of imports in the production of individual goods reached 90%, and information technology was included in this list. Currently, the Russian Federation continues to form a trend for import substitution in accordance with the order of the Ministry of Communications of Russia dated 09/20/2018 No. 486 "On approval of methodological recommendations for the transition of state-owned companies to the preferential use of domestic software, including domestic office software" ^[14]. Restrictions that initially relate exclusively to state-owned companies are gradually being extended to any other legal entities. Thus, from March 2023, restrictions will be imposed on the use of foreign messengers when transferring payment documents, personal data, information for making payments in relation to banks, non-credit financial organizations, state-owned companies, companies with a public participation share in the authorized capital of more than 50%, etc. ^[15]

Monitoring of the process of companies' transition to domestic software is carried out by Roskomnadzor, which maintains a unified register of Russian computer programs and databases, which currently includes more than 15 thousand software solutions of domestic production, as well as a marketplace of Russian software.

Within the framework of economic relations within the state, this will allow to standardize the formats and methods of information transfer between legal entities, including ensuring information security. However, within the framework of international economic activity, the mandatory use of domestic software may cause difficulties, primarily in matters of compatibility of the formats of transmitted information.

The legislation on electronic signatures provides for the possible recognition of electronic signatures created in accordance with the norms of foreign law and international standards. Enhanced electronic signatures created in accordance with the norms of foreign law can be recognized in the Russian Federation if their compliance with the requirements of the legislation is confirmed by an accredited certification center ^[16]. A similar method of recognition is also possible when using different formats of the transmitted information during its cross-border transmission. Recognition is mandatory when processing information, as well as when creating domestic software, to use the so–called open file format – a publicly available specification for storing data in digital form, which allows processing information in both free and proprietary software without reference to license rights - and the establishment of control by Roskomnadzor over the software being created, in conjunction with state support measures domestic IT companies will preserve the possibility of using information obtained from foreign sources, as well as ensure the competitiveness of domestic information solutions.

5. Ensuring information security in international economic activity.

Issues of international information security have significantly worsened in recent years, both due to the improvement of information technologies themselves and due to factors not directly related to them – the coronavirus pandemic and the current political situation in the world. The importance of international cooperation on information security issues has been emphasized both in international documents and in national legislation. In the joint statement of the heads of the CIS member states ^[17], it was recognized that although ICTs create significant potential for the development of the economies of the countries of the world, at the same time their use for destructive purposes poses an immediate threat to the state, its citizens and society as a whole. A similar position is enshrined in the Decree of the President of the Russian Federation "On the approval of the Foundations of the State Policy of the Russian Federation in the field of international information security" ^[18], which identifies the use of ICT for criminal purposes, as well as for committing various types of fraud, as the main threats to international information security in the economic sphere; the use of ICT for computer attacks on information resources states, including the critical information infrastructure; the use by individual states of technological dominance in the global information space to monopolize the ICT market.

It should be agreed with the researchers that the most appropriate form for the international legal regulation of digital technologies, including the development of international legal models of this kind of regulation, is cooperation within the framework of international organizations and interstate integration associations. Moreover, the format of interstate integration associations seems more suitable for these purposes, since closer integration ties have been formed within the framework of these subjects of international law, bodies with supranational powers operate, various advisory committees and business councils function, and there are developed mechanisms for resolving disputes. ^[19] It seems necessary to continue cooperation at the level of bilateral interstate agreements in the field of ensuring international information and economic security.

In the context of the development of the digital economy, information security issues should become an important block of ensuring economic security. The identification of legal problems related to the development of international legal acts aimed at regulating the use of digital technologies in the economy, their implementation through the adoption of national regulatory legal acts and the resolution of disputes arising at various venues under the auspices of the United Nations can provide a comprehensive solution to the problems of rapidly developing new markets.

6. Conclusions.

1) In conditions of limited access of the Russian Federation to Western information technology markets, it is necessary to form a policy of scientific and technical cooperation of the state, taking into account the support of joint research teams developing practical solutions for business communities;

2) it is necessary to adjust the current legislation for the development of ecosystems as a new direction of economic activity, taking into account the balance of interests of all participants in the field of consumer information processing and the use of information systems that ensure data security;

3) at the regulatory level, it is necessary to ensure control of import-substituting software, its compliance with both security standards and international information processing standards;

4) in modern political and legal conditions, it seems necessary for all states to maintain their commitment to the consolidated development of the digital economy and to preserve all ways of participating in international law-making on the safe use of information technologies in economic activity.