Article 2: “Anyone who illegally eavesdrops on the traffic of non-public content in the computer or telecommunications systems or electromagnetic waves and fibre optics, will be sentenced to between six months and two years of imprisonment or to the payment of a fine between 10 million and 40 million rials, or both of the punishments”
This article is related to illegal eavesdropping on individuals and corporate legal entities.
The element of conduct in the crime:
1. Eavesdropping, Listening
The characteristics of eavesdropping:
Eavesdropping illegally and secretly
2- The eavesdropping must be related to communications
The characteristic of communications:
– Communications must be through computer, or telecommunications systems such as telephones or electromagnetic transmission.
– The communications must be private and non-public
– The communication must involve transfer and traffic of data .
Question: Does this Article apply to cases of eavesdropping on a recorded communication that has already been transferred from one terminal to another? In other words, will this eavesdropping be considered as a crime?
Answer: Since the Article is concerned about eavesdropping on ongoing communications, its provisions do not apply to eavesdropping on a recorded computer or telecommunications or electromagnetic communication that has been already transferred. But, considering the fact that eavesdropping without legal authorization is prohibited and illegal according to the Constitution, legal action and criminal investigation against such a conduct can be initiated on the basis of other laws.
Question: Is it a crime to listen or eavesdrop on a live and in progress communication through computer or telephone or … which is not private and is available publically?
Answer: No, ongoing communications which have a public dimension are not covered by this Article of the law, and do not constitute a crime. For example, if two or more individuals are talking together about a subject by telephone or computer or wireless devices or … and their communication is not private and others can log in and join the conversation and listen to them. The action of those who are listening to the conversations of the said individuals is not covered by this Article and is not a crime.
Question: Is it possible for the security authorities to use the pretext of safeguarding the country’s security to eavesdrop on an ongoing communication by people through the means of telephones or computers or wireless devices or similar means?
Answer: No, if the security authorities eavesdrop on an ongoing communication process by the people without having a legal authorization, they can be prosecuted and punished — unless, they already have obtained a legal warrant. As, the legislator has emphasized in Article 50 that the laws for eavesdropping on the content of a non-public communication through computers and telecommunication networks, will be based on the relevant the laws on eavesdropping on telephone conversations. Therefore, according to the provisions of the Criminal Procedure Code, eavesdropping on these data also must be done with a legal and judicial permission. The issuing of an eavesdropping warrant by the judge requires that the different stages of the legal procedures must be completed beforehand. Then, the judge will issue the necessary warrant which will be valid only for a certain period of time, will apply only to a specific subject matter, and will apply only to the computers or telecommunication systems of certain specific individuals.
Question: Is it possible for the authorities to log into the private E-mails and SMS inbox of individuals and access them?
Answer: According to the amendment of Article 776, to access to the content of the recorded E-mails and SMS of individuals is similar to eavesdropping, and the order of a judge and going through the required legal procedure are needed for that access.
Therefore, the element of conduct in the crime of unlawful eavesdropping which Article 2 of the Cyber Crimes Law refers to is a positive course of action, which occurs by that action actually taking place, and the crime will not materialize by inaction, or to put it differently, by failure to act.
The legal element of crime:
– The legal element of crime is the same as Article 2, which is related to cyber crimes.
The mental element of crime:
– As mentioned in the introduction, as with other crimes, awareness of the illegality of the act and having deliberate intent for taking the action is the mental element of the crime.
Question: Is it a crime if an individual knows that eavesdropping on an ongoing communication through computer or telephone or … is a crime and he should not do it, but he eavesdrops on some parts of the communication believing he thought that he can eavesdropping the computerized transferring calls or … and eavesdropped the communication of two or more individuals?
Answer: No, because an individual must commit a crime intentionally and it is not a crime if someone commits it without intention or by a mistake or a wrong perception or thought.
The rules are applicable from the time of the publication of the laws in the Official Gazette and communicated to the public, and it is assumed that all of the people are aware of the law. In fact, if anyone illegally eavesdrops on the traffic of communications through computer or telecommunications systems, he clearly has had the knowledge and the information that the action is crime. But, it must still be proven whether the individual committed the crime intentionally or not. This is also the same for a person who eavesdrops with a fake or illegal authorization, which he thought to be legal and valid. In this case, this action is not a crime.
Question: If an individual is forced to eavesdrop on an a live conversation between two individuals through computer, is he guilty and is the eavesdropping illegal?
Answer: No. In any crime, force and pressure, which is unbearable and the eventual perpetrator cannot resist against, will exonerate him from criminal responsibility. If an individual is forced to commit illegal eavesdropping, he would not be punished although the act is illegal. But the individual did not do it intentionally and was forced to do it.
Question: What is the punishment for this crime?
Answer: The legislator has considered two types of punishments. Imprisonment and paying fines. The minimum imprisonment term is six months and the maximum term is two years, while the minimum fine is ten million rials and the maximum is forty million rials. But, these two sentences may be carried out in three ways.
A- The guilty could be sentenced only to the imprisonment.
B- The guilty could be sentenced to paying fine. According to Article 54, the amount of the fine could be changed every three months based on the rate of the inflation by the proposal of the judiciary and the approval of the Council of Ministers.
C- The guilty could be sentenced to both fine and imprisonment.
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