[Mirror] Onos, Abdul Rafi

Summer 2012


Direct Denial of Justice

Direct Denial of Justice: Or, How the Hackers Will Get Off Scot-Free For Destroying Government Property

Recently, the tension between China and Philippines regarding their claims on Scarborough Shoal intensified as OccupyPhilippines hackers defaced the website of the University of the Philippines. Replacing the contents of website is a map and a simple message: “We come from China! Huangyan Island is Ours!” The territorial claims are a subject for another discussion. Doubtless, legion have a better grasp of the territorial issues than I. What is interesting to answer is the question of, how can the Philippine government make the hackers liable?

I believe that it cannot, primarily because there is a lack of avenues by which the Philippine government can make them liable. Issues of jurisdiction and rules of evidence come to the fore.

Jurisdiction

First, there is an applicable law that penalizes the act of hacking. In 2000, RA 8792, otherwise known as the E-Commerce Law, was passed into being. Section 33 (A) of the Republic Act defines hacking in its various forms as follows: “Hacking or crackling with 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 communications system… resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents…” However, RA 8792 is only a Philippine law. It is not a treaty between China and the Philippines. Therefore, it can only penalize Filipino citizens or those violators who have committed the same in Philippine territory. While some may argue that the internet, the scene of the crime in this case, is an international stage accessible by any country, it is undeniable that RA 8792 cannot unjustly increase its scope for Philippine jurisdiction to encroach on other countries’ jurisdiction. In that matter alone, the idea of holding the foreigner hackers must fail.

The principles of public international law provide some understanding regarding jurisdiction. The five principles of jurisdiction are the Territoriality Principle, the Nationality Principle, the Protective Principle, the Universality Principle, and the Passive Personality Principle. Among these principles, the ones which could have extended RA 8792’s scope in the present case are the Protective Principle and the Passive Personality Principle. Joaquin G. Bernas, S.J., in his book “Introduction to Public International Law,” says that the Protective Principle states that “a state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by states in the international community.”[1] This principle must, however, fail in its application over the present case because of the limitations discussed in Bernas’ book: the threat must be direct and specific.[2] Was the hacking a direct and specific threat to national security? Not necessarily. To claim that the hacking was more than a juvenile message to the citizens of the Philippines and that it is terrorism in one of its lesser forms is to permit a deliberate distortion of the facts of the case. Certainly, it gives a broader scope to the Human Security Act of 2007, which presently does not include hacking as a form of terrorism.

The Passive Personality Principle, which Bernas defines as, “a state may apply law – particularly criminal law – to an act committed outside its territory by a person not its national where the victim of the act was its national,” must also fail her since it is mostly applied to extraordinary crimes.[3] Hacking, in this case not so grave and heinous as to constitute terrorism, could not then be filed against the foreigner-perpetrators in international courts. It is merely an ordinary crime done in an extraordinary time.

Rules on Electronic Evidence

Second, assuming that for some reason, all concerns of jurisdiction were exempted for this case, and by some miracle of extradition the Chinese authorities handed over the hackers, there would still be no manner by which the hackers would be brought to justice. Supreme Court resolution A.M. NO. 01-7-01-SC pertaining to rules on electronic evidence provide that it applies only to “all civil actions and proceedings, as well as quasi-judicial and administrative cases.”[4] Therefore, electronic evidence, through which the hackers could be prosecuted, cannot be offered by the prosecutors to the court against the hackers. The case is further defeated by the Supreme Court decision in Rustan Ang v. Court of Appeals, which categorically provides: “… the [Rules on Electronic Evidence] [Rustan Ang] cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.”[5]

It is in my opinion, however, that the Supreme Court grievously erred in promulgating a resolution so flawed as to have limited the scope of the law which it intends to complement. A.M. NO. 01-7-01-SC clearly states that its creation was fueled by the E-Commerce Law. The same law presents criminal sanctions to acts such as hacking and piracy. This resolution must then be challenged for spoiling legislative intent. As my professor in Criminal Law II frequently said, the Supreme Court is always supreme, but it is not always right. In any case, the resolution and the Rustan Ang case existing as they do, there is no way by which the hackers could be prosecuted using Philippine rules of evidence.

An Alternative Approach

Since there is no way by which the Philippine government could hold the hackers liable through Philippine venues, I would suggest that the government use a different approach instead. If there were any way by which the property of some other country, or of the nationals of that country, were damaged by the act of the hackers, then maybe that other country could prosecute the hackers, provided that country has a treaty with China regarding cybercrime. Say, for example, the website of the University of the Philippines was hosted by an American company, and America has a cybercrime treaty with China, then the American company, with the urging of the Philippine government, could prosecute the hackers.

Recommendations

As it stands, the Philippine government cannot hold the hackers liable for defacing the website of the University of the Philippines, which is government property. The best way to remedy this situation in the future is for Philippines to enter a cybercrime treaty with China, which looks more and more like an unlikely scenario at the moment. In addition, a review of the rules on electronic evidence would be most favorable to the Philippine legal system.


Endnotes

[1] Bernas, Joaquin G. “Introduction to Public International Law.” Quezon: Rex Printing Company, Inc., 2009. Page 156.

[2] United States vs. Yunis 681 F.Supp. 896 (1988)

[3] Ibid. Page 167

[4] A.M. NO. 01-7-01-SC.- Re: Rules On Electronic Evidence

[5] Rustan Ang y Pascua v. The Honorable Court of Appeals and Irish Sagud. G.R. No. 182835. April 20, 2010.


AFAYC: As Far As You’re Concerned, or, Why Companies Shouldn’t Search Your Underwear Drawer

Note: This assignment was given with the limitation that our essay conform to a system of thinking assigned in class depending on our personal views taken from questions asked in class. I was assigned the view of a Social Democrat, after having agreed that governments should lead the people to the future, and after having agreed that, if given the chance to be a public official, I would follow the word of the law tempered by morality. Hopefully, I have fulfilled this proviso, given my long-standing confusion about political differences. (I thought I was a Progressive, and even once fancied myself a Socialist.)

“I reserve my vices for after business hours.”
– Victor James Colebrooke from Wanted for Murder (1946)

Private companies have begun to use social networking sites to screen prospective employees. This practice has become most notable in the US, where some interviewers have gone so far as to request the applicants’ passwords to their Facebook account to conduct in-depth investigations as to their character. Some states in the US have already responded to this practice, such as the state of Maryland which did not look favorably upon it.

Nearly a decade after the internet has become such an integral part of our personal lives, and social networking sites such as Facebook, Friendster, Myspace, etc. have become extensions of our personal thoughts, we have to ask the question: is the old model of screening prospective employees sufficient enough?

Should social media and internet tools be essential in the acceptance of an applicant? Can companies and institutions use internet search tools and access to social media accounts in determining the most suitable candidate?

For several reasons, I do not believe that it should be so. I believe that some laws, especially as the highest law of the land, give the government the responsibility to prevent and punish this practice of using social media to screen applicants.

1987 Constitution

The 1987 Constitution provides several liberties in Art. III, The Bill of Rights. In Section 3 thereof, it provides, “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 prescribe by law.”

It may be said that the messages contained in the comments and personal messages between persons relayed through social networking sites are communications and correspondence that are supposed to be private, and the people communicating as such have a reasonable expectation of some degree of privacy. After all, each social networking site has a password. This password represents many things, but to my mind, it represents most of all privacy and control.

The password has to be private, in order for a person to retain control over his account. Otherwise, the common practice right now in the internet is a total lack of care with one’s passwords. In that case, we would know the passwords of our neighbors or total strangers, or there would even be no passwords required at all. We are given the exclusive control of our social network accounts because our accounts are our representations of ourselves to the world. Implicit in social networking technology is the idea of privacy and control. To take the password of an applicant, or simply to use social media to assess an applicant, is to infringe upon than privacy which the Constitution protects. And because the Constitution protects it, the government must also protect it. Any infringement upon the privacy of the person must be prevented by the government.

The Constitution also guarantees the freedom of expression. The relevant portion of the Bill of Rights states: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances.” Here, freedom of expression is explicitly protected. As stated by Isagani A. Cruz in his book Constitutional Law, “freedom of expression in general… embraces a number of cognate rights all aimed at insuring the free and effective communication of ideas from mind to mind.”[1] However, “purely private matters do not come within the guaranty.”[2]

It must also be understood that protected expression includes not just written language, but also pictures, as in the case of memes.

It must also be considered that the framers of the 1987 Constitution intended to give more rights to laborers in the interest of social justice, which Section 2, Article XIII explicitly promotes, including commitment to create economic opportunities. These economic opportunities may be unjustly hampered by the practice of screening using social media and internet tools.

Section 3, Article XIII states, “The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.” Even in the rules of statutory construction, the law is construed liberally in favor of the laborer, and strictly against the employer. We must construe this portion of the Constitution in favor of the prospective employee, giving them full protection. This protection is available not just to the employee but also to the prospective employee, since the provision states “equality of employment opportunities.”

New Civil Code

Just as well, the lawmakers of the land have enacted laws that respect a person’s freedom of expression and privacy. This respect of a person’s rights are manifested in the New Civil Code, some provisions of which give a particular remedy for their infringement.

“Article 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: … (2) Meddling with or disturbing the private life or family relations of another; … (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 provision explicitly provides the right to privacy and the remedy for its violation. According to the Report of the Code Commission, in the drafting of the New Civil Code, and explaining Article 26 thereof, “The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of the culture and civilization of every country, is how far it dignifies man.”[3]

It is in my opinion that using social media and internet tools to assess an applicant disrespects a person’s privacy, and should be the cause of civil action. By doing so, the company meddles with the private life of the applicant, and may even use the information gathered to disqualify the applicant for some personal condition referred to in Art. 26 (4). It is also important to note that prior to the enumeration of the acts that would produce a cause of action for damages and other relief, the wording of the law states that some acts similar to the enumeration could be included. That means that the actionable deeds are not limited to the enumeration itself. Does the use of social media and internet tools in the screening of applicants qualify as similar acts? I answer in the affirmative.

If privacy, which is given to the user of the social network, is guaranteed by the laws of the land, then so is the freedom of expression, as provided in Article 32 of the New Civil Code.

“Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: … (2) Freedom of speech; … (11) The privacy of communication and correspondence; xxx In any of the cases referred to in this article, whether or not the defendant’s act or omission constitute a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence…”

The provision explicitly protects the freedom of speech and the privacy of communication of correspondence from those who violate the same, even if they were not a public officer or employee, but a private individual. Therefore, private companies must respect the speech and communications made by prospective employees in social networking sites. To do otherwise would be an actionable violation of their rights.

It is notable that another of the rights protected by the same article is “freedom from being compelled to be a witness against one’s self”. While the intention of the law is clearly to give more power to the rights guaranteed by the Bill of Rights, it must be conceded that such freedom from compulsion is with regards to the courts and the criminal justice system, and to extend the freedom to matters outside of it, such as job interviews, is a bit much. However, it must be appreciated that a person is given such freedom, even if only in the criminal justice system. This means that the evils of being compelled to incriminate one’s self is understood and contemplated by the lawmakers.

Finally, Philippine jurisprudence provides that in the violation of Article 32, good faith is not a defense. Lim vs. Ponce de Leon, 66 SCRA 299, specifically states, “The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is that effective protection of individual rights.”[4] That said, even if the hiring company were in good faith in using internet tools to screen applicants, it would still be answerable to a court of law.

Anti-Violence Against Women and Their Children Act of 2004

There is another law that serves as a barrier to the practice of using social media to screen applicants. However, this law only protects women. Nevertheless, it is equally important to understand what part of the law bars the practice.

Among the acts of violence prohibited by the law is psychological violence, which the law defines as “acts or omissions causing or likely to cause mental or emotional suffering of the victim, such as, but not limited to… stalking…” This must be viewed in relation with the law’s declaration of policy, which states: “that the State values the dignity of women and children and guarantees fill respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security.” Stalking was further defined in the law as the intentional act of placing a woman under surveillance directly or indirectly.

Furthermore, under Section 5 of the same law, one of the acts constituting the crime of violence against women and their children is “attempting to compel or compelling the woman… to engage in conduct which the woman… has the right to desist from…” This section gives the woman applicant the right to file a case against the interviewer/screener who merely attempted to compel her to open or reveal her social networking accounts. Still another act prohibited is “causing mental or emotional anguish, public ridicule, or humiliation to the woman…” The government, then, has a responsibility to protect the female applicant from such screening practices by the company.

Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights

The Universal Declaration of Human Rights also recognizes the Right to Privacy and the Freedom of Thought, Conscience and Religion. As regards the right to privacy, the “individual is guaranteed freedom from arbitrary interference with his privacy, family, home, or correspondence.”[5] These rights would be under fire if the corporations were given free reign to stalk prospective employees.

The International Covenant on Economic, Social, and Cultural Rights, or the Economic Covenant, meanwhile, hold the state parties of the Covenant to recognize the right of everyone to “take part in cultural life [and] to enjoy the benefits of scientific progress…”[6]

The Filipino people could hardly participate in cultural life and enjoy the benefits of scientific progress if their enjoyment of social networking sites such as Facebook, and their use of internet publishing tools such as Blogger, would be held against them in the future.

Theories on Human Rights

In preventing this kind of practice, attention may be given not just on laws which the government has a responsibility to enforce, but also on morality and legal philosophy. In this regard, I will pay attention to some theories on human rights to highlight the importance of privacy and freedom of thought.

The Natural Law Theory states that “the conduct of men must always conform to the law of nature.”[7] Hugo Grotius, the proponent of Modern Natural Law Theory, states that some “natural characteristics of human beings are the social impulse to live peacefully and in harmony with others…”[8] It is in my opinion that the right to privacy stems from the natural characteristic of human beings to separate themselves from other people. It is the unalterable nature of human beings to seek privacy, from the early ages when man hunted in packs but slept in separate huts, to the present when man has a reasonable expectation of privacy and control in the management of his internet presence. Indeed, if anything, what the internet offered most is anonymity. Groups such as Anonymous thrive on this. It is also my opinion that the right to freedom of speech, thought, and expression stem from the natural, inalienable nature of human beings to communicate their thoughts.

Looking from another theory, the Positivist Theory, the right to privacy and freedom of thought is also paramount. In the Positivist Theory, “all rights and authority come from the state and what officials have promulgated.”[9] The State has already expressed protection of the right to privacy and the freedom of thought through the Bill of Rights and other laws here aforementioned. What the Positivist Theory offers that the others do not is flexibility to adapt to the times. As of this moment, technology advances to a lot of different directions. Technology with respect to social media, however, is trending towards privacy, as more and more social media networks offer a higher degree of privacy. Just last week, Twitter released a new terms of user agreement and new privacy settings. But another trend which the Positivist Theory must also adapt to is the trend towards social justice. By harmonizing these trends, one could reasonably expect that the protection of privacy in the era of the internet, and the full protection of economic rights and the guaranty of social justice, would be against the use of social media to screen applicants.

Another theory which primarily deals with economic and social rights is the Marxist Theory. However, for reasons of following the restrictions on the writing of the essay as a Social Democrat and not as a Socialist, this theory will not be discussed here.

The Theory Based on Equality and Respect discussed by Coquia in his book Human Rights: An Introductory Course, and the Theory Based on Justice, both support the basic human rights, including the right to privacy.

Other Considerations

It seems unfair to me that companies would use social media and internet tools to stalk their applicants as part of their screening process. For me, the public life of a person, which involves his employment, and his private life, which involves personal matters not related to employment, should remain separate and distinct. Blurring the lines between the two would be unfair for the employee because he would always be at a disadvantage. I believe that the use of internet tools is specifically for judging against the prospective applicant, if for no reason other than that the employer has already chosen to disregard the professional life of the employee, in a context which requires only the professional. Disregard of the skills and aptitude of the prospective employee means that the employer is getting personal, against common decency. As they say in Filipino, “Trabaho lang, walang personalan.”

If employers are willing to infringe upon the privacy of others, they should also be willing for their privacy to be infringed upon by others. This screening process is only one-way. In short, it simply isn’t fair.

Why should employers concern themselves with the personal lives of employees, prospective or otherwise? Are they willing to pay for the hours in which the employee is not working, but at home, sleeping? The plain fact is that the employers pay for the job professionally handled with expert skill sets – they are not paying for the person to be their friend, lover, our spouse. Had it been different, it would not be a job application, but a beauty pageant.

The Labor Code is against discrimination in the employment of people. Letting the employers run rampant with this practice is also letting them discriminate the applicants for superficial reasons not related to work.

The current state of employment in the Philippines is bad enough as it is. Unemployment is at a high. Why make it worse just because the employers only want employees who like Tori Amos, or because they want employees who read Y: The Last Man? People’s lives depend on their jobs. It would simply be immoral to hire or fire someone for such arbitrary matters as internet personas. If anything, a person’s presence in the internet is as much a fiction as a dating service profile: someone, somewhere, is writing it.

I can hardly believe this screening process is that much necessary. If it is, what did the employers do before the internet? I have an answer: the employers became professional.

Conclusion

The screening process involving the use of social media and internet tools to pry into the personal lives of prospective applicants infringes the right of privacy and the freedom of expression. It is against the Bill of Rights, it is actionable in the New Civil Code, it is barred by the Anti-Violence Against Women and Their Children Act, and it violates the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights. These are laws which the government has a responsibility to enforce. The right to privacy and the freedom of expression are rights which may come either from the natural characteristics of human beings, or come from the State. Either way, they must be respected. Finally, it is also unfair and immoral.

The screening process existed from even before the internet. The only thing I can say to employers who insist on stalking as a part of the screening process is: Basic human decency – IGMG!


Endnotes

[1] Cruz, Isagani A. “Constitutional Law.” 2007 ed. Quezon: Central Book Supply, Inc., 1985. Page 200.

[2] Ibid.

[3] Report of the Code Commission

[4] Lim vs. Ponce de Leon, 66 SCRA 299.

[5] Coquia, Jorge R. “Human Rights: An Introductory Course.” Quezon: Central Books Supply, Inc., 2000. Page 47

[6] International Covenant on Economic, Social, and Cultural Rights, or the Economic Covenant. Article 15 (1).

[7] Coquia, Jorge R. “Human Rights: An Introductory Course.” Quezon: Central Books Supply, Inc., 2000. Page23.

[8] Ibid.

[9] Ibid. Page25.

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