[Mirror] Misola, Mark Gil

Summer 2012

Aliens Defacing Ph Web: Beat the Rap

The act of intercepting, defacing and/or interrupting website, which happened to one of our primer universities, is violative of the Electronic Commerce Act of 2000, which provides hacking, cracking and piracy as a crime. Republic Act 8792 Sec. 33 (a) provides that hacking or cracking is the unauthorized access in a computer system including the introduction of computer viruses, stimulated to alter, corrupt, steal, or destroy existing design, which in effect cause break-ins or interruption to computer system, which is punishable by a fine from 100 thousand to maximum parallel to the damage suffered by the owner with imprisonment from 6 months to 3 years.

The intent of the framers of the law is to give protection over the interest of the public in general, as the creation of technology and internet advance in the market across the globe and to provide punishment for those who are to violate. The act of foreign internationals in defacing or interfering with our computer systems or website in the absence of our knowledge and consent is a clear defiance of our law and should never be condoned but condemn by our government. The law is clear where it does not exclude foreign hackers. Ergo, a foreigner may be subjected upon the commission of this act. The law and the Philippine Internet community condemn the action of the hacker or hackers for it impairs the legal rights of the owner to his intellectual property or creation. Hacking per se is not immoral or unlawful for we need hackers to test the viability and strength of our computer system. However, hacking should never be misunderstood by the contemporary internet genius for it might bring confusion and harm to the entire Internet industry.

Given the fact that foreign nationals may be subjected to this law, a more important issue will arise, as to whether or not our court could have a control over the person of the foreign nationals and as to how would you make them liable?

To deal with this matter, we have to go back with the issue of jurisdiction. Jurisdiction as defined is the power of the court to try cases. The court cannot however, enforce a judgment against a person or thing over which it has no authority. “Traditionally, a court can gain personal jurisdiction over a party only if the party has a connection to the geographic area in which the court sits.” http://legal-dictionary.thefreedictionary.com/jurisdiction Thus, the principle of territoriality is a ground to establish personal jurisdiction. There would be no question if the defendant is of the same country. However, trouble lies if the parties involved are of different states, such as the case above.

There is no Supreme Court decision yet as to this case. It is also difficult to prove the liability of the foreign hackers for it involves the question of personal jurisdiction. Nonetheless, according to Henry Perritt, Dean of Chicago-Kent Law School, “to be effective, jurisdiction over foreign nationals or corporations must rely on international treaties or reciprocal enforcement agreements. The agreements often look at the contacts that the foreign entity has within the sovereign district in order to determine if the sovereign’s interest in the matter is legitimate.” (http://cyber.law.harvard.edu/ecommerce/disputes.html) Since our country has been a signatory to a Convention on Cybercrime, which goal is to “harmonize laws against malicious hacking, virus writing, fraud and child pornography on the net.” (BBC News. (2000, December 18). Cybercrime Treaty Condemned. Retrieved January 21, 2007 from http://news.bbc.co.uk/1/hi/sci/tech/1072580.stm.) Our sovereign state enjoys the right as inherent to it to invoke its right internationally to a court of competent jurisdiction regarding cybercrimes. However, if the party involved is not a signatory to this treaty no right can be enforced against him. It is then the vision of this convention that all countries may cooperate in this effect so that the evil sought to be avoided must be prevented. If not, this wrongful act will perpetuate further, where hackers seem to enjoy their wrong doings without fear of its consequences for they can find refuge behind the skirt of its mother nation.

Just a Click Away from your Privacy

“People who live in glass houses should dress in the basement.” – Jeff Neuburger

Companies recognize the tremendous impact of the internet in the corporate world. It may generate massive economic increases and efficiency in all forms of business transactions and diminished wastes. However, it doesn’t do away with threats and risks that this technology imposed. This gives a firm conviction and reasonable appeal to the employers to use the social networking sites to widen their means in evaluating their applicant or even with their employee in order to avoid any sort of liability and lost.

According to George Lenard, a blogger and employment lawyer, social networking sites can serve companies in two primary functions: 1) Identifying potential job candidates. Employers may use these social electronic databases to search for individuals with a certain level of education, work experience, personal interests, and/or anything else that might be a company asset. 2) Background checking, where “disqualifying information” may be available, such as proof of illegal drug use or behavior the company would consider undesirable in an employee. http://mqjeffrey.hubpages.com/hub/How_employers_look_at_Myspace_and_Facebook_pages

Internet background checks may satisfy the conduct of a diligence of a good father required to an employer in choosing a competent employee. The employer must make sure that the new employee will protect company’s interest and good will. However, this issue as to whether or not companies and/or institutions can use internet search tools and access to social media accounts in determining the most suitable candidate posed a dilemma for both employers and employees in matters concerning privacy.

I submit that this act of the employer does not pry against the privacy of the employee. As the needed personal information is made publicly available, there is a lower expectation of privacy. “What users should understand is anything posted online does not remain private, once posted it is public.” http://baruchnewmedia.com/wiki/New_Media_and_Privacy_Issues

The advent of technology, companies were threatened and worried with so many instances in which the essentials of the business and trade security may be prejudiced. Such as emails can be a tool for a casual discussion of an employee and his friends with matters and information harmful and detrimental to the companies. Monitoring the behavior of the employees in the internet world is one way for employers to ensure that trade secrets are secured. K. Robert Bertram, Avoiding Pitfalls in Effective Use of Electronic Mail, 69 P.A.B.A.Q. 11 (1998)

There is no specific provision of the law, which allows or prohibits this act. However, pursuing from case law construing the Fourth Amendment’s prohibition against unreasonable searches and seizures by governmental authorities, courts have held that employers can monitor their employees’ use of the Internet and email, provided the employees are given notice of such practice. Once the employees have been put on notice that a monitoring program is in place, the courts have ruled that the employees no longer can claim any reasonable expectation of privacy. http://www.wardandsmith.com/articles/employers-who-monitor-employee-internet-and-email-usage-should-monitor-their-policies-as-well

The companies being the machinery of the government in the promotion of the economic interest must be safeguarded. The problem of the companies in the high involvement of its employees with the social net sites often appears inevitable. Thus the State with its police power may make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967) If there exists an evil that is sought to be avoided, the State has the right to prevent. (Schenck vs US 249 US 97) Thus, the State may protect the interest of the companies by enabling them to include in its polices the use of internet and access to social media accounts in determining the most suitable candidate. This would not warrant a prohibition as long as employees had been placed on notice.

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