Zaraspe, Gerard Michael

SY 2012-2013, Second Semester


Quis custodiet ipsos custodes?

In living the lifestyles we have grown accustomed to, we have made significant inroads towards new discoveries which allow us to advance our level of technology by frightening proportions. In this never-ending process of constantly improving ourselves, and making our lives more convenient, we have lost track of what is essential.

THE PARADOX OF OUR TIMES

Is that we have taller buildings, but shorter tempers
Wider freeways, but narrower viewpoints
We spend more, but we have less.

We have bigger houses, but smaller families
More conveniences, but less time.
We have more degrees, but less sense
More knowledge, but less judgement
More experts, but more problems
More medicines, but less wellness.

We have multiplied our possessions, but reduced our values.
We talk too much, love too seldom, and hate too often
We have learnt how to make a living, but not a life.
We have added years to life, but not life to years.
We’ve been all the way to the moon and back
But have trouble crossing the street to meet the new neighbour.
We have conquered outer space, but not inner space.
We’ve cleaned up the air, but polluted our soul.
We’ve split the atom, but not our prejudice.
We’ve higher incomes, but lower morals.
We’ve become long on quantity but short on quality.

These are the times of tall men, and short character;
Steep profits, and shallow relationships.
These are the times of world peace, but domestic warfare,
More leisure, but less fun; more kinds of food, but less nutrition.

These are the days of two incomes, but more divorces;
Of fancier houses, but broken homes.
It is a time when there is much in the show window, and nothing in the stockroom.

– His Holiness the Dalai Lama

Such is very much evident in the case in the field of science technology wherein numerous discoveries are made each day. Each one endeavoring to make our lives easier to live. Each one with a price to pay on our part.

Quis custodiet ipsos custodes?

A Latin phrase traditionally attributed to the Roman poet Juvenal from his Satires (Satire VI, lines 347–8), which is literally translated as “Who will guard the guards themselves?” Also sometimes rendered as “Who watches the watchmen?”, the phrase has other idiomatic translations and adaptations such as “Who will watch the watch-guards?” In modern usage, it is frequently associated with the political philosophy of Plato and the problem of political corruption, but the original source has no known connection to Plato or political theory (Wikipedia).

In the Dan Brown novel Digital Fortress, this Latin phrase was the driving force behind one man’s quest to break the US stranglehold on the code-breaking capability of the powerful National Security Agency (NSA) which enables the US to decipher all kinds of codes and enable the agency to read all messages sent through the web. In that world envisioned by Brown, the safety of everyone is ensured by intercepting all messages to prevent all threats to national security. With such power concentrated in a single agency, “Who will guard the guards?” became the question in the mind of a programmer who was a former employee of the NSA who became disenchanted with such wanton display of power and utter disregard for the constitutionally protected rights of the citizens.

In our jurisdiction, the constitutional provisions, to name a few, wherein such a monstrosity, if indeed it existed, would violate would be:

Article III, 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.

Article III, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

For many users of the internet, this time has already arrived.

SECTION 1. Short Title. – This Act shall be known as the “Data Privacy Act of 2012″.

On August 15, 2012, the RA 10173 was signed into law by President Benigno Aquino III. It is considered by many in the Information, Communications and Technology industry as a landmark legislation that will result in the further growth of the BPO sector. It is a “keystone for economic development through ICT and ICT-enabled industries according to Louis Casambre, the executive director of the Information and Communications Technology Office. Said signing “is an unequivocal sign that the country is taking the necessary actions to become a functioning knowledge-based, ICT-driven economy”, according to Senator Edgardo Angara, main author of the law in the Senate.

SEC. 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth…

In the declaration of policy, RA 10173 emphasizes the fact that the free flow of information promotes information and growth. It allows for transactions of big volumes to be easily facilitated with a click of a button. In the same section, it also recognizes that although such access will indeed be beneficial to business and growth it is also of essence to provide for guidelines to be promulgated to ensure that the personal information of the citizens which will find itself in the databanks of the government be made secure and protected.

Quis custodiet ipsos custodes?

“We are one of the few nations to put up a rather draconian law’, said University of the Philippine College of Science professor Ben Vallejo. “In other countries , like in the US, they have already had similar attempts, but all the attempts were impaled on the First Amendment of the US Constitution”

CHAPTER III, SEC. 12. Criteria for Lawful Processing of Personal Information. – The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

(a) The data subject has given his or her consent;

(b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;

(c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

(d) The processing is necessary to protect vitally important interests of the data subject, including life and health;

(e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or

(f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

By the way Chapter III was vaguely worded it can be argued that it is overly broad and it may produce a chilling effect on the exercise of a constitutional protected right. Particularly that of free speech. Imagine writing something trivial about a friend and being sanctioned for it because you failed to get his consent as required by RA 10173. Applying the provisions of the law, such act is already tantamount to processing sensitive personal information.

Disturbing similarities can also be observed between the NSA of Dan Brown and The National Privacy Commission (Frightening. How can one nationalize privacy?) as stated in Chapter II of RA 10173.

In a country regularly regarded as one of Asia’s worst in terms of corruption, it’s hard for a citizen like me to entrust information which is personal in nature to the hands of people who, as their history in government service suggests, are not just trustworthy. But being a student of the law, I know that RA 10173 has to be given the presumption of constitutionality, and prudence suggests that I wait for the Implementing Rules and Regulations to be passed before passing judgment. Still, a question lingers.

Quis custodiet ipsos custodes?


Star Wars

In my only other previous post, I revealed that I was reminded of Dan Brown’s novel Digital Fortress while analyzing the new law, the Cybercrime Prevention Act. I even stressed how frighteningly similar the proposed National Privacy Commission was to the novel’s National Security Agency bearing in mind the vast powers at its disposal. I also questioned the power, or lack thereof, to regulate the actions of the agency. Quis custodiet ipsos custodes? I asked repeatedly.

In posting my second blog, in response to Atty. Guerrero’s assigned task of comparing the Cybercrime Prevention Act and the Magna Carta for Philippine Internet Freedom, I cant help but be reminded of one of my favorite movie series of all time…STAR WARS.

In proposing Senate Bill 3327, or the Magna Carta for Philippine Internet Freedom, Senator Miriam Defensor Santiago recognizes many realities in today’s world, especially in the Philippine setting. Less queues. Less paper. Convenient banking. A boost to the economy. Like it or not, to dinosaurs like me, the Information, Communications and Technology age has come and it seems certain to stay for a long time.

However, as Obi Wan reminds us time and again, “there must be balance in the force”. Simply put, there is a price to pay for every benefit we enjoy. In the case of the convenience brought to us by technology, the price is vulnerability. We become prone to attacks on our person through malicious posts. States are subjected to attacks on its sovereignty through the release of viruses.

In the exercise of its inherent police power, the state has to regulate the use of the internet for the promotion of the general welfare. The first attempt (Cybercrime Prevention Act) has been subjected to a Temporary Restraining Order and the second one, the Magna Carta for Philippine Internet Freedom, is still pending in Congress. The question? Which is better?

Constitutional law is the study of the maintenance of the proper balance between the authority of the state as manifested in its inherent powers and the freedoms of the citizen as guaranteed by the Bill of rights. The situation is ripe for the time honored question for legal minds. Was the proper balance contemplated by the definition aforementioned observed by the Cybercrime Prevention Act? By the Magna Carta for Philippine Internet Freedom?

Allow me to raise several points in comparing both statutes.

The Cybercrime Prevention Act manifests being overbreadth. The Overbreadth Doctrine is a principle of judicial review that a law is invalid if it punishes constitutionally protected speech or conduct along with speech or conduct that the government may limit to further a compelling government interest. A statute that is broadly written which deters free expression can be struck down on its face because of its chilling effect even if it also prohibits acts that may legitimately be forbidden.

A case could also be argued that the Cybercrime Prevention Act may be declared as void for vagueness. Such a declaration is usually made in reference to a statute defining a crime which is so vague that a reasonable person of at least average intelligence could not determine what elements constitute the crime. Such a vague statute is unconstitutional on the basis that a defendant could not defend against a charge of a crime which he/she could not understand, and thus would be denied “due process”.

Such is the case of the Cybercrime Prevention Act with regard to some of the definitions given for punishable acts under the statute. Situations such as the release of computer viruses which caused the demise of the hard disk of a person who consented for his laptop to be used by another can be raised as a manifestation of the vagueness of the definitions of punishable acts under this particular statute. Questions pertaining to the liability of a person who posted a message in reference to another without asking for the latter’s consent may be punishable under this law.

Both of these issues are addressed by the Magna Carta for Philippine Internet Freedom because the subsequent bill clearly defines the punishable acts in Section 3. Such clear definitions coming from knowledgeable users of the internet or netizens provide for the subsequent bill to be declared as constitutional on the basis of not being overbreadth and void for vagueness.

Another controversial issue is the takedown clause, provided for by Section 19 of the Cybercrime Prevention Act wherein it empowers the Department of Justice to block and restrict access to sites which it deems in violation of anti-cybercrime provisions. The Department of Justice would not need any court action or intervention to execute this power. Such mandate would give the Department of Justice power to exercise a form of “FINAL Prior Restraint”, thus violating freedom of expression.

This is a clear violation of the due process clause as guaranteed by the Bill of Rights in the 1987 Constitution. Property cannot be taken without due process. In the case at hand, without the need for court action, the taking down of a website based solely upon the discretion of the Department of Justice would clearly constitute arbitrariness on the part of the State.

Such is not the case in the Magna Carta for Philippine Internet Freedom as the provisions of the statute calls for court proceedings in cases which calls for websites to be taken down.

Furthermore, the Cybercrime Prevention Act empowers law enforcement authorities to collect traffic data in real time with specified communications transmitted through a computer system and requires service providers to assist such collection. Such arbitrariness are manifested in the following provisions of the Cybercrime Prevention Act:

  • Section 13, which requires Internet service providers to preserve for a certain period traffic data, content data, and subscriber information.
  • Section 14, which empowers law enforcers, upon securing a search warrant, to issue an order requiring any person or service provider to disclose or submit traffic data within his or its control.
  • Section 15, which defines the powers and duties of law enforcers in implementing the search and seizure warrant.
  • Section 17, which authorizes service providers and law enforcers upon expiration of the periods under sections 13 and 15 to immediately destroy the computer data subject of preservation and examination.
  • Section 19, which empowers the DOJ to restrict or block access to computer data found to be in violation of the law.

Such provisions violates constitutional rights to due process of law, to free expression, rights against unlawful searches and seizures, rights against warrantless electronic surveillance, and against the privacy of communications.

The Magna Carta for Philippine Internet Freedom ensures due process by providing strict guidelines for any collection of any data, including the securing of warrants, obligating notification and limiting seizure to data and excluding physical property. It also mandates government agencies to provide security for the data they collect from citizens to ensure their right to privacy.

The Cybercrime Prevention Act allows double jeopardy through the prosecution of offenses committed against its provisions and prosecution of offenses committed against the Revised Penal Code and special laws, even though the offenses originate from a single act. This is a clear violation of the constitutional grant under Article III of the 1987 Philippine Constitution.

Such is not the case in the Magna Carta for Philippine Internet Freedom for it is very specific in Section 35 (Applicability of the Revised Penal Code and other Special Laws) that the provisions of the Revised Penal Code shall apply only suppletorily to the provisions of the Magna Carta for Philippine Internet Freedom whenever applicable. Hence, the right of the citizens against double jeopardy, as guaranteed by the 1987 Philippine Constitution remain intact under the subsequent bill.

Another sore point in the Cybercrime Prevention Act is the way it handles cases of libel. While the trend in various parts of the world is to decriminalize libel, it seems that the Cybercrime Prevention Act seeks to punish it with an even heavier penalty than what the Revised Penal Code has set. The Magna Carta for Philippine Internet Freedom follows the trend for decriminalizing libel by providing for only civil liability for those who are found guilty and a liability for damages commensurate to the amount suffered as provided for in Paragraph 30 of Section 36, Title VIII of the Magna Carta for Philippine Internet Freedom.

Finally, The Magna Carta for Philippine Internet Freedom is further validated by the fact that the bill could become the first law to be crafted through crowdsourcing, the process of getting the job done by tapping people on the Internet. Concerned netizens that include software designers, information technology experts, academics, bloggers, engineers, lawyers and human rights advocates were the ones who came up with the draft of the Magna Carta for Philippine Internet Freedom.

Judging from the source of its draft, a case can be argued that, if indeed the Magna Carta for Philippine Internet Freedom is passed into a law, it may as well be the embodiment of true and direct democracy at work, having been drafted by the members of the constituency itself.

The movies in the STARWARS series are as follows: The Phantom Menace, Attack of the Clones, Revenge of the Sith, A New Hope, The Empire Strikes Back and The Return of the Jedi. Simply put, good (Jedi) and evil (Sith) take turns as victors at the end of every episode with the Jedis eventually taking the final round.

It might be too early or too far fetched to compare the struggle between the State and the Citizens to the mythology of the Jedis and Siths, but judging by the results of the first (Cybercrime Prevention Act) and the second (Magna Carta for Philippine Internet Freedom) installments, it looks like the Jedis (citizens) has taken the most recent round against the evil empire of the Siths (state).

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