THE QUALIFICATION, PROTECTION, AND PENALTY FOR DISCLOSURE OF CUSTOMS DATA

REMZİ AKÇIN
Unsped Customs Consultancy
Chairman of the Board

THE QUALIFICATION, PROTECTION, AND PENALTY FOR DISCLOSURE OF CUSTOMS DATA

In today's world, where cyber-attacks are not only constantly on our agenda but have become a security issue, the issue of how to obtain, process, and protect data and/or information and what sanctions will be applied in case of violation of the protection of this information and data has become even more important. We wanted to talk about this issue in general, but we also wanted to discuss the security of customs and/or foreign trade data.

Before making a legal assessment, the terms “information” and “data” need to be clarified. What is information, what is data, what is the difference between them, in which cases do they have the same and in which cases do they have different meanings? It is useful to examine this first.

THE CONTEXT OF THE TERMS “DATA” AND “INFORMATION”

According to the Turkish Language Association, there is more than one definition of “data”:

1. The main element that is the basis of research, a discussion, a reasoning; muta (I), data.

2. The main principles underlying a work of art or a literary work: The data of a novel.

3. The results of research based on observation and experimentation: Statistical data.

4. Something that helps to find the unknown from the known, stated statements in a problem.

5. A formal representation of facts, concepts, or commands that is convenient for communication, interpretation, and processing.

According to the Turkish Language Association, there is more than one definition of “information”:

1. The totality of facts, truths, and principles accessible to the human mind; science.

2. The truth obtained through learning, research, or observation; news.

3. The product of thought resulting from the work of human intelligence; knowledge.

4. The basic ideas that the mind first grasps with the help of perception through the sense organs, imagination, and memory.

5. The semantic form of data.

While data is the main element of a research, information is its semanticized form. The Turkish Language Association explains this as “information is the semanticized form of data”. In this case, it is possible to express it as “information is the processed form of data”. Therefore, information is a term that also includes data. For this reason, every rule and sanction that applies to data is also applicable to information. However, these terms are used in almost the same sense, the narrower one for the content of software and the broader one for social and economic phenomena.

TYPES OF DATA AND INFORMATION

Without making any distinction between data or information, we can briefly explain the types, qualifications, protection, and sanctions to be applied in case of disclosure of all information and data in general and customs and foreign trade information and data in particular under the following titles:

Personal Data

It is the data within the scope of Law No. 6698 on the Protection of Personal Data. According to the Law, “any kind of information relating to an identified or identifiable natural person” is personal data. Examples of such data may include a person's name, home address, voice, face, and identity information. The most important feature of personal data is that this information belongs to a real person. Information or data belonging to legal persons is not covered by the law.

Violation of the provisions on the protection of personal data is within the scope of “crimes against private life and confidential areas of life” regulated in Articles 132-140 of the Turkish Penal Code.

Trade Secrets

Although there is no clear definition of a trade secret in our laws, it is confidential information that provides economic benefit to the owner of companies and is not known by the public. This information can be in many different areas such as the formula, design, sales strategies, or customer data. Publicly available information cannot be considered a trade secret.

Article 239 of the Turkish Penal Code criminalizes “disclosure of information or documents that are trade secrets, banking secrets or customer secrets”.

Confidential Information

Confidential information is sensitive information whose confidentiality, integrity, or availability requires protection by a government agency. This information is determined by the legislative regulations to which it is relevant. In some sectors such as banking, health, and customs, there are regulations stipulating that the information obtained is confidential. The information mentioned here is predominantly information in the hands of the government.

Article 336 of the Turkish Criminal Code criminalizes the disclosure of information that the competent authorities prohibit disclosure of by the law and regulatory procedures and which should remain confidential in terms of its nature.

THE NATURE OF CUSTOMS DATA

Article 12 of the Customs Law stipulates that customs administrations and other authorized institutions are obliged to keep all information of a confidential nature or obtained based on confidentiality and that such information cannot be disclosed without the express permission of the person or authority providing such information, but that customs administrations may provide such information to the relevant authorities as required by legal provisions or judicial decisions regarding the protection of data. It should be inferred from this provision that the information provided to the customs administration is confidential.

What should be understood from customs data? It can be said that the essence of customs data is the information contained in the two basic systems in which customs procedures are carried out:

• Each person on behalf of whom customs procedures will be carried out, regardless of whether a real or legal entity, must be registered in the Customs Liable Registration and Tracking System (YKTS). It is not possible to register a customs declaration without this registration. 
• All declarations made to customs, including the summary declaration, are made through the Computerized Customs Activities (BİLGE) system. In a customs declaration where a regime declaration is made, there are 54 columns, i.e. 54 separate information. This information includes all kinds of information about the buyer, the seller, the goods, the vehicle in which the goods are transported, and the method of payment.

On the other hand, foreign trade statistics are obtained from these data. These statistics are published by the Turkish Statistical Institute (TurkStat) and can be queried on its website under many headings such as tariff, importing or exporting country, customs office of export or import, tariff, value, and quantity of the goods. 

In this case, because some of the data contained in customs systems can be considered as trade secrets; whether it is a trade secret or confidential information, and where the measure of confidentiality begins and ends since public information is made public, is an issue that needs to be clarified.

Let us start from the last first. Foreign trade statistics contain macro, not micro, content. Since they contain total figures such as the HS code, not the trade name, and the total value in that HS code, not the unit value, there is no information on the specific merchandise. There is also no importer or exporter information. Therefore, the data shared should not be characterized as confidential.

On the other hand, since these data are in the system of the customs administration, even if they contain trade secret information, they should not be considered trade secrets, but as confidential information within the scope of Article 12 of the Customs Law. If this information is disclosed, under Article 336 of the Turkish Penal Code, “anyone who discloses information that the competent authorities prohibit disclosure according to the law and regulatory procedures and which should remain confidential in terms of its nature shall be sentenced to imprisonment from three to five years.”