Fedorov suggests not mobilizing IT specialists. What do lawyers, economists and the Ministry of digital development team say about this?

Last week, the minister of digital transformation of Ukraine Mikhail Fedorov published a letter urging not to mobilize IT specialists into the ranks of the Armed Forces, because they are involved in cyber support to the invaders.

DOU interviewed representatives of the Ministry of digital development, experts on labor law and economics to understand the relevance of mobilizing IT specialists.

Ukrainian IT in numbers

According to the Ukraine IT Report 2021, as of the beginning of this year, 285 thousand IT specialists worked in Ukraine, and the export of computer services amounted to 6 6.8 billion. Last year, the IT industry paid about UAH 23.5 billion in taxes and fees, and also brought the country 4% of GDP.

"Cyber defense is a territorial defense behind the keyboard"

At the request of the editorial board, the Ministry of digital transformation reported that Mikhail Fedorov's letter is of a recommendatory nature and "confirms that IT specialists in the conditions of war with Russia are involved in the information and cyber fronts of the fight against the aggressor, as well as, continuing to work, fill the budget of Ukraine." The ministry added that today IT specialists are not a priority category for mobilization.

At the same time, the Ministry could not give a more detailed answer regarding Fedorov's proposal.

DOU also asked the State Special Communications Service to talk about the role of IT specialists in wartime in order to understand their contribution to the fight against the aggressor outside the Armed Forces.:

"The Ukrainian IT community, like all Ukrainians, has united to resist the enemy. After all, cyberspace has become the same arena of military operations as land, air, and sea. Without anyone's involvement or team, they created groups that resisted numerous hacker attacks carried out by hackers funded by Russia.

They have made an extremely great contribution to improving our cyber resilience, our ability to resist the enemy, and to protecting state information resources. Cyber defense is a territorial defense behind the keyboard. They do not work for government agencies, but we provide information about the challenges facing the state. The key task is to ensure the state's cyber defense."

The decision is up to the president

According to Candidate of Legal Sciences Vitaly Dudin, Fedorov's proposal "violates the constitutional principle of equality of all citizens before the law, and its justification is surprising."

According to the lawyer, "the unique role of IT specialists in countering Russian propaganda is an exaggeration," because people of different professions have digital skills in the information age, and journalists, in particular, contribute to the fight against propaganda and disinformation in cyberspace.

The DOU editorial board asked the lawyer to explain whether it is possible to legally limit the mobilization of a certain category of specialists if the proposal of the head of the Ministry of digital development is approved by the relevant state authorities.:

"Regarding the mechanisms for implementing the idea, it is worth noting the following: decree of the president of Ukraine "on general mobilization" 64/2022 of 24.02.22 (decree on mobilization) in paragraph 5 provides for the need for the General Staff of the Armed Forces of Ukraine to determine the order and volume of conscription of those liable for military service and reservists.

Probably, according to the plan of the heads of the Ministry of Digital Development, the General Staff should change the criteria for conscription accordingly. At the same time, the president of Ukraine has the power to grant the right to exemption from conscription in case of mobilization and in wartime to citizens or certain categories of citizens. this is provided for in Article 11 of the law of Ukraine "on mobilization training and mobilization". Although the letter of the Ministry of digital development does not directly require releasing IT specialists from conscription."

At the same time, the legislation contains norms that establish the right to deferral due to the specifics of the labor activity of those liable for military service, the lawyer adds. Articles 23-25 of the above-mentioned law do not subject to conscription those who are liable for military service, booked for the period of mobilization and for wartime for state authorities, other state bodies, local self-government bodies, as well as for enterprises, institutions and organizations.

At the same time, the booking procedure has special features:

1) the person liable for military service must be an employee, and not a gig employee or entrepreneur;

2) certain mobilization tasks in the interests of Defense must be performed at the place of work;

3) the delay is granted for no more than six months.

The lawyer also sees another danger: if the Ministry of digital development proposes to determine whether a person belongs to the field of Information Technology under the OKVED, then specialists in other industries can start changing their categories of OKVED in order to avoid mobilization.

"This may lead to an unjustified flow of Labor to the IT industry, although during the war there is a need for other specialists in strategic sectors of the economy (such as communications, transport, defense industry). However, this will have the greatest impact not on the labor market, but on the state of the country's defense capability. In my opinion, the army will need any personnel, including those employed in the field of IT," he concluded.

Lawyer Serhiy Mitkalik calls Fedorov's letter "strange", because it does not contain the addressee — at the same time, the lawyer stressed that the decision to suspend the mobilization of IT specialists in any case lies with the president.:

"If we assess the legal aspect, then the minister is not prohibited from applying to other state authorities and proposing initiatives — the decision will still be up to the president, who has the authority to amend the relevant legal acts."

Mitkalik also notes the danger that belonging to representatives of the IT sector will be determined by the QED for sole proprietors:

"I think it is appropriate for the minister to use only the concept of "employment contract", because the activities of IT specialists as sole proprietors are very often a legal way to minimize taxation. Therefore, it is very dangerous to introduce fops as a category of employees. And this can create ways for others who want to avoid mobilization."

According to the lawyer, due to the lack of "proper argumentation", the letter of the head of the Ministry of digital transformation raises the question of whether it representatives should have a "white ticket" for mobilization.:

"[If Fedorov's request is approved], it is necessary to take into account representatives of other professions, for example, drivers who carry out the necessary transportation of humanitarian goods under fire, volunteers, seamstresses and other professions, without which the proper provision of the army could not be carried out."

"Such issues are better solved behind closed doors"

Pavlo Sheremeta, founder of the Kyiv-Mohyla Business School (KMBS) and former minister of economic development and trade of Ukraine, believes that cyber warfare can be the most logical place for IT specialists in wartime.

At the same time, the economist criticized the form of the letter that Fedorov chose to submit this idea for discussion.

"In wartime, it is better for deputy prime minister Fedorov to discuss and resolve such issues with the president, prime minister and defense minister behind closed doors," Sheremeta shared his opinion.