[Mirror] Rama, Carl Jason

Summer 2012


“Running after Cyber Criminals”

Recently in the news it was reported that the University of the Philippines website was defaced by alleged Chinese nationals. Is there a Philippine law which punishes this act of defacing a website? If so, can this law apply to foreigners, in this case, Chinese citizens? How do we make foreigners liable for the act of defacing Philippine websites?

The Chinese Government has been aggressively pursuing its claim on the Scarborough shoal. At the height of the issue on the Philippine claim against the Chinese claim, the University of the Philippines website was defaced by alleged Chinese nationals as an act of sympathy and support for their government.

According to my professor in Technology and the Law, there are two kinds of hackers, a “white hat hacker” and a “black hat hacker.” Based on this classification, hacking may be used in a good or bad way. Hacking or cracking as defined under Section 48 of the E-Commerce Law 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 computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data message or electronic document..”

Under the said provision, hacking or cracking is punishable by a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

This year 2012, the Senate approved on third reading Senate Bill No. 2796 entitled “Cybercrime Prevention Act of 2012”. When passed into law, it will clearly define cyber crimes and will impose stiffer sanctions. This law will address the acts of defacing a website and hacking.

There is a question however of applicability of Philippine penal laws such as the Cybercrime Prevention Act to foreign nationals, in this case, Chinese nationals, considering that as a general rule, criminal laws apply only within the territorial jurisdiction of the state where the law was passed. A state only has the power to punish acts within its territorial jurisdiction.

SB 2796 has provisions for mutual assistance and extradition. It makes applicable some provisions of the Budapest Convention on Cybercrime which was created to create a common criminal policy on computer and internet crimes and to build international cooperation among countries.

As for extradition, although we have an existing RP-China Extradition Treaty, the questions are: whether defacing a website is also punishable under Chinese laws and if China will surrender its nationals to the Philippines . China surrendering its nationals to the Philippines is highly doubtful considering that the act was done in support of China’s claim of territory against the Philippines. This may even be interpreted as an act of nationalism on the part of the Chinese nationals. Even if there is a law which can make these Chinese nationals liable, that law may not be enforced, and the Chinese nationals will never be punished for their acts.

We have taken important steps in fighting cybercrime. But on the question of whether this can be enforced in this particular situation of the hacking of our UP website allegedly by Chinese nationals, enforceability is another question.


Zubuchon

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

Social media accounts can be legally treated as property. Social media accounts like facebook, twitter and my space allow for the protection of privacy by providing passwords and/or customizing accounts on who can search , or see posts. These social media accounts are being used as a source of communication and expressing the account owner’s own views and thoughts.

The issue at hand is quite complicated considering that there is no jurisprudence on the said subject matter, or a law that we could look into. Social media and internet tools are also relatively new breakthroughs. However, we can refer to our Bill of Rights for some enlightenment on the issue. Under Section 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. Under our Constitution, the right to privacy is a fundamental right granted to Filipino citizens under our constitutional democracy.

Answering the question at hand requires a balancing of the person’s right to privacy which is enshrined in the Bill of Rights and the employer’s right to protect his business interests. While the former is enshrined as a fundamental right entitled to utmost protection, the latter is not. Easily, the answer is that a person’s right to privacy is entitled to greater protection under our laws.

We must note that employers are not lacking in methods and opportunities in determining the fitness and qualifications of an application. Companies employ different methods on screening if a certain applicant is qualified for the job. The basic steps that the company applies are to require the applicants to submit their resumes police and former employment clearances and their character references, and to conduct interviews with the applicants and their references. Nowadays, the companies in the Philippines conduct their interviews online, an alternative and more convenient way for the company to accommodate more applicants.

The company has all the means to know if the applicant is fit for the said position. The company may ask the applicant to take psychological and aptitude exams prepared by the company aside from passing its credentials and resume. The company may conduct a panel interview to test the skills of the applicant. The company may stress some rules or guidelines that an applicant must follow.

All told, inquiring into a person’s social media account may not even be necessary considering all the present tools that a company has in order to determine the fitness and qualification of its applicants. More importantly, there does not seem to be any underlying public interest in order to justify a broad and all encompassing law which allows employers to look into a person’s social media account and infringe into one’s right to privacy.

Our government is a government of laws founded on morals. Laws are not placed on the same plane. There are certain fundamental rights, in this case, the right to privacy, which takes precedence over business interests. Thus, the government is duty bound to respect greater rights over others in the enactment and implementation of laws.

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