Javier, Janelle Crystel

SY 2012-2013, Second Semester


Technology and the Law: RA 10173 (Data Privacy Act of 2012)

Digital revolution has long time commenced and living in the age of technology has been exquisitely convenient and incredibly gratifying. It is even infinite, unrestricted and unregulated. Its vast propensity to be abused is thus of no wonder…until Republic Act No. 10173, otherwise known as the Data Privacy Act of 2012 came into the picture.

The internet is one of the most powerful creations of technology, where people are quintessentially living in a different dimension. The ways social networks and other digital means of communication are making life easier and enjoyable for all of us are already given and need not be enumerated. It is classically transforming to be the mainstream medium of communication, rather than a mere option. With the advent of readily available technology, most people are more than enthusiastic to instantly share information even to the public. Various fascinating stuff could appear right before your eyes with just a single mouse click.

So wonderful as it seems, comes with it is an a enormous catch. Things may get nasty online. Abusive use of technology are undeniably rampant, which is as well needless to be discussed in detail, as viral the issues have got. Ruining someone else’s life can be done in an instant. Anyone can arbitrarily be placed after the eyes of the judging public, seemingly to be despised by the disparaging public opinion.

Clearly, without proper regulation, technology could tremendously be exploited by some and worse, at the expense of other innocent netizens or even non-netizens at some point. The rapid advancement of technology apparently did not go hand-in-hand with an apt sense of responsibility by its users. It is therefore high time to police the cyberspace and this is where the RA 10173 comes to the rescue.

In Whalen vs. Roe, the Court advanced the principle that the right to information privacy has two aspects: (1) the right of an individual not to have private information about himself disclosed; and (2) the right of an individual to live freely without surveillance and intrusion.

In the same sense, RA 10173 aims to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth. The Act fundamentally secures and protects the confidentiality, as well as the integrity of personal information in both government and private sectors. It sanctions unauthorized disclosure of personal information. The statute as well established a directive that a person should give an information by virtue of his free will and full understanding of the purpose it is intended to be used. It also guards journalists and publishers for they cannot be compelled to reveal their sources.

The subject law provides for the creation of a National Privacy Commission in order to monitor and ensure compliance of the country with the international standards for data protection.

The passage of the Data Privacy Act may well tender each and everyone of us the crucial peace of mind in disclosing vital information indispensable for our various trades, may it be personal or business dealings, knowing that our right to information privacy is shielded by the law’s mandate against possible abusers. Accordingly, it is expected to promote investment in the rapidly emerging information technology and business process outsourcing industries in the country. Conversely, it would make individuals and entities be more vigilant of the possible consequences of misuse and abuse of information, ensuing to a more responsible use of information technology.

RA 10173 is indeed a crucial law in the current digital age. It could really be of immense value to one and all of us, over and above that it could be of great benefit to our nation as a whole. At this time, proper implementation and observance of the new law are the critical keys to realize its well-settled aspirations.


Magna Carta for Philippine Internet Freedom to replace the Anti-Cybercrime Law?

As the TRO on RA 10175 [1] or the Anti-Cybercrime Law is about to conclude, renewed interest thereon is at stake and now entwined with the introduction of the Senate Bill (SB) 3327 [2] filed by Senator Miriam Defensor-Santiago and purporting to be its better version, the Magna Carta for Philippine Internet Freedom.

The provisions of the SB 3327 were devised from the suggestions of Filipino netizens via online crowd-sourcing – where a group of IT specialists, software designers, academics, bloggers, engineers, lawyers and human rights advocates drafted the MCPIF through discussions in various social media channels (e.g. Facebook, Google+, Twitter). If passed, it will be the first Philippine law, to be crafted through online crowd-sourcing.

Backing track, SB 3327 was submitted to address the dilemma in RA 10175. Going through both, I noticed a number of disparities as follows:

SB 3327 does not allow illegal searches and seizures by authorities as supposed to be allowed by RA 10175. Senator Santiago appeals that the RA 10175 violates the constitutional right to privacy and constitutional guarantee against illegal search and seizure since it permits warrantless real-time collection of traffic data.

However, as provided in RA 10175, traffic data pertains merely to the communication’s origin, destination, route, time, date, size, duration or type of underlying service. It does not include contents and identities. Hence, I cannot agree that the law shall violate the individuals’ constitutional right to privacy and guarantee against illegal search and seizure because again, only the technical information of the data is being collected and not the users’ identities and materials’ contents.

Conversely, SB 3327 specifically provides that a court warrant should be required to effect collection, seizure or collection of all other computer data. It provides for the detailed procedures in securing warrants, requirement of proper notice, as well as the limitation of seizure to data while excluding physical property. Accordingly, the bill supplies a more explicit and strict guideline for collection of any data in order to ensure the constitutional right of individuals to due process.

Another vital gap is that SB 3327 condemns the provisions of RA 10175 that allegedly ensue to illegal take down of websites. RA 10175 provides for the issuance of an order from Department of Justice to restrict or block the access to a particular computer data when found to be prima facie in violation of its provisions without due process of law. I believe that the prima facie proof leading a computer data to be in violation of the law is rational for the restriction of the website where it is found since it is aimed to avert further injury to the individual purporting to be affected. Supposing that the concerned computer data was subsequently found to be not defamatory or disreputable, the blocking shall be lifted anyway.

On the other hand, SB 3327 requires a court order before authorities may take down or censor a website. Both SB 3327 and RA 10175 direct government agencies to secure collected data to ensure the individuals’ constitutional right to privacy.

It is also worthy to note that SB 3327 hampers double jeopardy as opposed to RA 10175 which tolerates double jeopardy by the prosecution of offenses committed against its provisions as well those of the Revised Penal Code and special laws even if the offenses arise from a single act.

As regards to the SB 3327, another salient feature is that it supports the creation of the proposed Department of Information and Communication Technology (currently pending before the Congress), as well as equips law enforcement agencies and the military with stipulations that would ensure appropriate defense against any cyber attacks and terrorism.

Alternatively, RA 10175 also presents the conception of a cybercrime unit, which will be jointly handled by the National Bureau of Investigation and the Philippine National Police and shall be manned by special investigators to exclusively handle cases involving contraventions against the act.

Meanwhile, both SB 3327 and RA 10175 provides for sanctions for offenses such as child pornography, child abuse and human trafficking which can be committed online.

By far, despite the mentioned disparities, SB 3327 and RA 10175 are spiritually similar. Just that, the former provides more specific guidelines and procedures as compared with the former. The bill conveys remarkably comprehensive provisions that do not only crack down cyber crimes but also vigorously protects constitutional rights of privacy, due process and freedom of expression. It is almost perfect compared to the vague provisions of RA 10175. We cannot however just scrap a piece of legislation due to its vagueness. It is not vain to be ignored.

It was submitted that at the end of the day, freedom comes with great responsibility. In our current state, the rapid advancement of technology obviously do not go hand-in-hand with an apt sense of responsibility and discipline by its users. Clearly without proper regulation, technology could tremendously be exploited by some and worse, at the expense of other innocent netizens or even non-netizens at some point. Grimly, the need to be reproved by such laws is eminent.

It is high time to police the cyberspace. The bill and the law should be harmonized in order to craft a cybercrime law that we can finally make use of.

Endnotes

[1] RA 10175: http://www.gov.ph/2012/09/12/republic-act-no-10175/

[2] SB 3327: http://www.senate.gov.ph/lisdata/1446312119!.pdf

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