[Mirror] Amen, Catherine

Summer 2012


Handcuffed hookup

One of the starkest contests of this century comes in bits. Man is now distressed by just a mouse-click. And even get furious with feuds in virtual hookups. Indeed, as we look at it, gone are the old days when people fight head-on. Now, with the booming abilities of the know-how and the underlying advances, basic problems of man are in jumble. Technology, so to speak, ascends and dynamically flourishes with us being left tongue-tied. But who are to be blamed when we ourselves have been a buff with all the glorious convenience and fun that the Internet could bring. We have continually been an unpaid client of the growing Virtual Industry that we cannot even take a grasp of. Much, most of us are clueless of what has been happening in the ins and outs of our Web World. All because we kept hanging on to the good and amazing things we are experiencing with that Web World. And when eventually confronted to the uncivil undertaking in the civilized (I presume) virtual society, we become wary. What are we got to do then? This leads us to confront another threat that is beginning to loom large- cyberwar, cybercrime, and the rest of the same animals.

Cybercrime has been much in the news and print ads lately, from facebook massive phishing (stealing of passwords from users), to monster botnets (cache of stealing of information and details of thousands), program manipulation, and now that of system hacking. A lot of crimes done virtually have been pervasively done by the so-called uncivilized minds. They should be termed that way so as to make a good rectification. What they are fond of doing is undoing the good works of the civilized society. They take advantage of the open borders, unbound scopes, unlimited leeways, and much of the technological advances of today’s generation. They can be successful in doing the same, prominent in such a name, but they are not invincible. We have to take that in mind.

In the meantime, let us give factual scenarios. Series of news break the silence of the many regarding the hacking incidents affecting our country, The Philippines. And these hackers even claimed to come from China which surfaced from the University of the Philippines’ website asserting as well their claim over Huangyan Island, the Chinese name for Scarborough Shoal [1]. As what the news evoked, this alleged hacking by Chinese nationals were just their retaliation from the heightened rift between China and the Philippines regarding the Scarborough Shoal. But this was not the only incident of hacking that took place, since couple of days from the first strike; Chinese nationals again hacked but this time, the Department of Budget and Management (DBM), and other detected attempt and target attacks and site invasion of the Presidential Communications Development and Strategic Planning Office’s website, the Official Gazette’s and the Presidential Museum and Library’s. And these hacking series might not be through yet, we could just presume. And all these uncivilized deeds pointed to Chinese hackers, as represented by IP addresses assigned to Chinese networks.

These headlines made a lot of Filipinos; patriotic, sympathetic and pathetic alike, all clamored for the so-called justice. We might not have a gigantic territory, or a colossal of manpower, but we are sensitive enough to understand our plight. And we have E-Commerce Act. More particularly, Section 33 (a) which says that, “Hacking or crackling refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communication system, including the introduction of viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.” [2] If we look at the scenarios given, the entire elements amount to so-called hacking. However, context wise, we might fall short of directly extending our long-arm of domestic legislation to neighboring sovereign state like China. To approach this, everything must be set on its right place. Let us get deeper into the matter.

Are we at the losing end? Definitely not. We should know that most of the countries of today are becoming, became or become member-states of the standing leg of international law and an international organization, the United Nations. And members of which include the Philippines and China, among others. The latter even holds more powerful position as permanent member of the Big Five of Security Council which has basic functions in maintaining peace and order and security among countries and so as make binding decisions regarding the same. In relation to this, series of Conventions have been in place and passed regarding high time concerns of countries. And one pertains to the issue on cybercrimes which involves hacking. To name one, The Twelfth United Nations Congress on Crime Prevention and Criminal Justice [3], which was held on 2010, and that China has been a standing member thereof, subscribing to the prompt resolution to Cybercrimes of today from existing and even continually infecting lots of countries. And as a full member of the United Nations, China is also governed by the United Nations Charter [4]. It has been concretely stated in Article 1, the purposes of each member-state in a nutshell, (a) “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”. And this must be taken in correlation to Article 1 (b) that is, “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” With all these if put into mind, will warrant mandatory compliance by China in cooperating for the resolution of the acts of its Nationals in the so-called hacking. And with these governing principles and tenets, doubts would really boggled everybody’s mind why China is still reluctant to sign the necessary Convention on Cybercrime [5] as initiated by the Council on Europe and joined by non-members like the United States, Japan, Canada and South Africa. But this does not hinder further drive on prosecuting the Chinese hackers.

As we all know, the latest dispute between the Philippines and China about Scarborough Shoal is burning like a furnace. And these hacking incidents just set things ablaze. One aggressive step forward and everything will explode. Thus, our only remedy is to pacify things. We can go diplomatic instead. Besides, history dictates the possibility of agreements given the tested camaraderie relationship between the Philippines and China since time immemorial. And two most important of its bilateral agreements include: Treaty on Mutual Judicial Assistance on Criminal Matters (2000), and an Extradition Treaty (2001) [6], among others. This Treaty on Mutual Judicial Assistance on Criminal Matters indeed make ends meet with regard the divergence in legislation and help speed up prosecution if coupled with cooperation on both sides. Since, the problem in not efficiently implementing our own domestic Hacking law is that of national sovereignty, mutual legal assistance and judicial convergence are two most essential elements of making that law realized. And because China agreed with our country regarding this matter in this specific treaty, as a signatory therewith, it is obliged to conform to the terms as indicated.

It would not be so hard for China to conform to this mandate given that domestically, they are also victims at some point by these uncivilized hackers. Owen Fletcher once wrote that, “China released a tort law that touches on privacy issues and requires Internet service providers to take action when an individual is using the network to violate someone’s civil rights.” [7] Too, “China says cyber hacking is against Chinese law.” [8] With these, and with all the unhealthy effects of Hacking, it would be a lot easier for us to propose proper legal conviction to those malefactors in hacking when even China itself also outcry for its continuing existence. But to do this, we can use our Extradition Treaty with China in taking steps for the prosecution of Hackers. This is not easy, we know it. But nothing is impossible in pursuing justice.

The current Extradition Treaty [9] between the two states might not be that explicit in including Cybercrime as one of those extraditable offenses, but if the purpose of such treaty be controlling, which is, “in desiring to provide for more effective cooperation between the parties in the repression of crime on the basis of mutual respect for sovereignty and equality and mutual benefit..” it would be undeniable to include such crime in the list if that will be the case. Besides, it is no way for China to protect those hackers since if that will happen to them, in their territory, the same recourse will be due for them. More to the point, this proper legal action by our country, the Philippines, is just a prosecution stage, and that cooperation is what we only ask from China to make it realized, and nothing beyond it. Besides further, an uncivilized hacker can never be an asset to one’s country. Hence, China would not have to be vexed about extraditing those nationals once traced.

All these things in mind, setting aside other attending circumstances between China and the Philippines, prosecuting a hacker is not anymore far-fetched. We have our laws, the E-Commerce Act inter alia, an international cooperation (have faith in it), good conscience (not just to get even or so), and a prompt and proper legal course of action; we are in square off then.


Endnotes

[1] http://ph.news.yahoo.com/chinese-hackers-deface-philippine-website-132340721.html

[2] Amador, Vicente, B., The E-Commerce Act and Other Laws@Cyberspace p. 264.

[3] http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/Documents/Reports-Presentations/SG%20Inf%20_2010_4%20-%20UN%20Crime%20congress_ENGLISH.pdf

[4] http://www.un.org/en/documents/charter/chapter1.shtml

[5] http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CL=ENG

[6] http://philcongenxiamen.com/home/index.php?option=com_content&view=article&id=201&Itemid=405

[7] http://www.computerworld.com/s/article/9150718/China_takes_step_to_toughen_hacking_laws

[8] http://www.voanews.com/english/news/China-Says-Cyber-Hacking-Is-against-Law-81473967.html

[9] http://www.oecd.org/dataoecd/50/37/39379217.pdf


Click or quit?

We post statuses, tweet some gossips, email stuffs or comment in extremes. Lots of the same thing that we keep ourselves busy about. And at some point, it even affects us real time. Say, if all these net activities will be taken away for one day, we’ll definitely run amok. That somehow made us a bit attached or even dependent to this so-called Social Networks. Our lives are way changed from the usual primitive non-virtual communications wherein people get content with snail mails or even travel hard just to see loved ones. People’s lives are becoming easy, convenient and virtual. And we can call this life we have now as virtually inspired ones.

Let’s think complex.

How about if we complicate things and coincide this Social Network into every aspects of our lives? Say, getting this virtual behavior of ours as a determining aspect of our careers in life. And that before us being hired or so, we should first disclose identities used in our Social networking sites, attached on our CV (Curriculum Vitae) and be judged accordingly. And even more, by making use of our Social Network behavior as the basis for our continuing fitness in our choice of employment. Let us crack that idea and put it in context. What will be our say when all these scenarios are brought into our land?

We have to delineate.

Our works/careers in whatever fields it might be should all come as one aspect of our living life. And our personal lives, in whatever ways and means of dealing the same should also be in another aspect thereof. Simply put, they are of two different animals. Once you commingle the same, you end up misunderstanding things as is.

Our personal lives, which involve how we interact with loved ones, communicate or reach out to them, are not the same as before. Now, we used a lot of means to do those things since places and locations are becoming borderless and that some of us go abroad and seek greener pastures or some of us, separate lives and seek new ones, but really have to connect again whatever means possible. Technology made all these things possible through Social Networks via internet. We have Skype, Yahoo, Gmails, Twitter, Myspace, or even the ever controversial Facebook; and everybody connects. But alongside these trending changes as to our communications and interactions lie some basic miscommunications and misunderstandings, which are, naturally normal, like talking and conversing humans, face-to-face. What just happen now is the leveling up of our ways and means of our interactions to others, close or stranger, friends or unfriended people. We stretch extra miles and adapt internet and its underlying Social Networks which undoubtedly offer big time packages and dozens of happiness to us. But still, it remains to be private in a sense that it belongs to the aspect of our personal lives, just an upgraded ones.

Contrariwise, there lies our career lives. This is another aspect of our life that we really be serious about. Just to take note of the things that our work/career is capable of bringing us like, finances, support and stability. These stuffs deserve to be preserved and worked on as hard as possible with. Our employer is our boss and the Company policy is our law, this is elementary. We work as mandated of us, considering the dos and don’ts of employment per se. We get paid accordingly. And we’ll be bringing extra happiness to our families and friends alike since we have the money that we knuckled down through our work. And what is next is all fun. We celebrate, real hard and capture photos harder. And we let our friends and families know how happy we are and post albums on Facebook. This is the usual trend of today. We let people know what happened to us, either good or bad. Since these Social networks like Facebook, Twitter, Myspace, and lots of the same cloth alongside people’s activities to all its applications and freebies are so commonplace. No age limitations, or career restrictions, children and adults alike do the same thing on a daily basis. They communicate online, chat online, post comments and photos side by side, check whose online, busy, away or idle, things like these are usually done in private. And all these pertain to that so-called virtual behavior.

And what is the catch? You’ll simply get fired when your virtual behavior run afoul to that of the Company’s or Employer’s. Or worse, you will not be admitted for work if your virtual behavior goes poles apart from that of the Company’s.

We have to settle this.

The company has its own rules and regulations, policy and mandates in regulating and maintaining employees, that is a fact. But to what extent are all these mandates apply? This basically applies to whatever work-related matters within the working environment or workplace. Problems, differences and inequities within the scope of the working environment can best be settled likewise within management and employees accordingly. All this rooted from issues that are work-related per se. However, there are instances that employers delve deeper into the matter and resolve conflicts in relation to employees’ virtual behavior. They basically do so for lack of things visible within the four corners of working place to be used against employees in dealing with conflicts and resolving the same. Like in hiring, CVs are normal, but some employers really required your log-in passwords to Social Network sites of your choice and that you are active about and based everything with that. And when you are a bona fide employee already and encountered something heightened conflict without much basis for you to get fired, employers go leaked on your Social network activities and find loopholes provided therein. What companies and employers do is this: when all things fail and you have to do it still, go trawling the internet.

Are they overdoing things? Yes, they are.

As what we have established above, both the career and personal aspects of everybody’s life go different path and hence, not to be taken in the same way. Both are in isolation to each other. You have your own personal life before you have your career life, or in rare case, otherwise. Your career life has its own scope and extent which is not in any way coinciding with your personal life. Mixing it up is a no-no since it is elementary to separate your personal lives to your work, just to make things objective. Employees can do this segregation as much as possible since too much stress in work when added to such stress in personal life, might be that morbid. And how about employers and company you are working with? You don’t have that control. Maybe yes, maybe no. But what is for our concern is the former. They do things as described above. And what will be your recourse? Back off.

This is hitting below the belt already. You are not working just to be peeped at personally. True enough, that you are to be monitored or supervised by bosses or immediate supervisors alike. But this has limitations, which has something to do with work-related matters ONLY. Matters like how you looked like in your DP in Facebook, how you managed to comment back, how you posted statuses, tweeted, or how you write on your blog are just some of the things that remained to be your private matters. These have nothing to do with the way you sailed on your choice of career. And by so considering the same is in no way appropriate to be claimed as management prerogative since the latter refers to rights of an employer to regulate all aspects of employment, such as the freedom to prescribe work assignments, working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of workers. (Baybay Water District vs. COA 2002). [1] Basically, referring working performance and decisions to social network activities and behavior is highly flawed, much more a violation.

When we look closer into the matter, we initially grasp the existence of power play. The management as the more superior entity should not overpower labor (employees) all because of the latter’s vulnerability. What else can an ordinary employee or even aspirant to be an employee do, but to succumb to such requirement of giving access to social network sites that they are active about and attached therewith to CVs when applying or be basis for continued fitness in the company, all because they want the job or want to eke out a living. This should not be the practice. Ethically, morally and legally, this added requirement of companies and employers alike is a concrete violation therefore.

What has been violated? It is the Right to privacy of employees. Although we might not have a specific law on Privacy matters, we have some provisions that will not let those invaders to privacy scot-free. We have in our New Civil Code, which provides that:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence:

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

This is in relation to one of the Rights of every person under our Constitution, particularly, Article 3 (Bill of Rights), Section 3 which says that:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceedings.

The inviolability of privacy as to communication and correspondence which include some of our ways and means of reaching out to others with the use of internet, like emails, blogs and the like, has to be preserved unless there is this lawful order of the court or when public safety or order requires the same. Absent the two exceptions would leave our right to such privacy as firm as possible. This guaranty under our Constitution can also be correlated to our Electronic Commerce Act, particularly Section 31 which provides as follows:

Section 31. Lawful Access. – Access to an electronic file, or an electronic signature of an electronic data message or electronic document shall only be authorized and enforced in favor of the individual or entity having a legal right to the possession or the use of plaintext, electronic signature or file or solely for the authorized purposes. The electronic key for identity or integrity shall not be made available to any person or party without the consent of the individual or entity in lawful possession of that electronic key

Hence, these electronic documents or messages in matters which are presumed to be private should neither be accessed nor possessed to any other means aside from the ones authorized by the lawful possessor of the same. Employees in possession of those electronic documents or messages like emails or the like have the sole authority to take hold of the same and can only consent of its access wholeheartedly and not vitiated by any unreasonable power play by employers.

Hence further, in order for us to put everything squarely, let’s do the basic principle of all time, Respect each other’s rights. The employees should respect the policy and mandates that the Management reasonably imposed and likewise the Management must also see to it that it will respect the rights of employees alike. When any of them goes overboard, the corresponding law regarding such should be applied accordingly.

To sum it up, we should always be reminded that we are in a democratic country and for us to live up to that spirit (that is, if we still have it), let everybody, without discrimination and preference; be accorded with the right to express themselves and so as the right to be protected in doing the same appropriately. The latter right guaranteed to every person amounts to their right to privacy which is considered as the Mother of all Rights which ought to be respected. Whatever things considered private, should remain to be private, and whatever it is that is considered public, should likewise be public in the eyes of every persons alike. Think this way and we would not have that problem in the future.


Endnotes

[1] http://www.dlsu.edu.ph/research/centers/cberd/pdf/papers/Working%20Paper%202004-04.PDF

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