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SY2009-2010 1st Semester

Villanueva, Haidee: Scope of Unauthorized Access

26/09/2012
SY2009-2010 1st Semester
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Introduction:

As technology grows by leaps and bounds, the laws have to be made more responsive to changing times. The lack of a legal framework or insufficient laws in our country, to address problems of validity of electronic transactions is a significant barrier to the growth of e-commerce. For decades now there is still unresolved issues in the internet the lack of boundaries of information, the free-flowing, borderless nature of cyberspace has revolutionized communication and commerce. However, not all freedom are absolute, it can never be unbridle freedom, otherwise it will result In a chaos. So what is unauthorized access in the internet? When does access become unauthorized? Our legislature must establish policies, standards and access and proper use of the internet and computer resources.

Definitions

Addresses = Every device on the Internet has an address that allows other devices to locate and communicate with it. An Internet Protocol (IP) address is a unique number that identifies a device on the Internet.

Computer = is “a machine that manipulates data according to a list of instructions.”

Domain = A group of Internet devices that are owned or operated by a specific individual, group, or organization. Devices within a domain have IP addresses within a certain range of numbers, and are usually administered according to the same set of rules and procedures. Domain Name = Identifies a computer or group of computers on the Internet, and corresponds to one or more IP addresses within a particular range.

Unauthorized Access = The gaining of access to a computer, without or in excess of authority, to obtain information. Access can be achieved by simply stealing or guessing a user’s password, or a detailed program can be created to allow the intruder to gain access. Internet = A global network of computers and other electronic devices that communicate with each other via standard telephone lines, high-speed telecommunications links, and wireless transmissions. Due to the structure of the Internet, connections between devices on the Internet often cross state and international borders, even when the devices communicating with each other are in the same state.
Hacking=is the practice of modifying computer hardware and software to accomplish a goal outside of the creator’s original purpose.

Server = A centralized computer that provides services for other computers connected to it via a network.

Objective

To be able to define what is access to a computer and when does access to a computer become unauthorized.

Scope

unauthorized access may have taken place? In our present law we are still on a look out as how to define unauthorized access to a computer really means, when is it legal or when is not . In the United States there are already cases that made a distinction on the manner or intent of the user of a computer.

State v. Allen

Allen had used his computer repeatedly to dial up a Southwestern Bell Telephone computer that controlled long-distance telephone switches and could be manipulated to allow a user to place free long-distance calls. When Allen dialed up the Bell computers, he was confronted with a prompt requiring him to enter a username and password. Investigators speculated that Allen had guessed a password correctly and later erased the proof of his activity by deleting the logs. However, the forensic evidence established only that Allen had repeatedly dialed up the Bell computers and viewed the password prompt. Allen was charged with accessing the Bell computer without authorization in violation of the Kansas computer crime statute. Before the Kansas Supreme Court, Allen argued that there was no evidence he had actually accessed the Bell computer. The government relied on the broad statutory definition of access, fairly common among early state computer crime statutes, which stated that access means “to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer.”The court responded that this definition was so broad that if taken seriously it would render the statute unconstitutionally vague. If “access” really meant “to approach,” the court noted, “any unauthorized physical proximity to a computer could constitute a crime.” In light of its overbreadth, the court refused to apply the definition, concluding that “the plain and ordinary meaning should apply rather than a tortured translation of the definition that is provided.” The court explained: Webster’s defines “access” as “freedom or ability to obtain or make use of.” This is similar to the construction used by the trial court to find that no evidence showed that Allen had gained access to Southwestern Bell’s computers. Until Allen proceeded beyond the initial banner and entered appropriate passwords, he could not be said to have had the ability to make use of Southwestern Bell’s computers or obtain anything. Therefore, he cannot be said to have gained access to Southwestern Bell’s computer systems as gaining access is commonly understood.” This concept of “access” appears to adopt the virtual reality approach, in which the correct username and password grants a user access to the files “inside” the computer, but the wrong username and password denies the user that access. Absent evidence that Allen had passed through the password prompt to find the information inside, he had not actually accessed the Bell computer.

State v. Riley

Joseph Riley had configured his computer to dial up the computers of the Northwest Telco Corporation and guess random passwords; a correct password allowed the user to place free long-distance telephone calls. The evidence showed that Riley repeatedly had dialed the Telco access number and guessed passwords, although it was unclear whether he had guessed correctly and placed free calls. Riley argued on appeal that he had not accessed the Telco computers. The Washington statute contained a definition of “access” essentially identical to that in the Kansas statute from Allen. In Riley, however, the court relied on the statutory definition to conclude that Riley had in fact accessed the Telco computers: Riley’s repeated attempts to discover access codes by sequentially entering random 6-digit numbers constitute “approach[ing]” or “otherwise mak[ing] use of any resources of a computer.” The switch is a computer. Long distance calls are processed through the switch. Riley was approaching the switch each time he entered the general access number, followed by a random 6-digit number representing a customer access code, and a destination number. Therefore, Riley’s conduct satisfied the statutory definition of “access” and so was properly treated as computer trespass.”

United States v. Morris

Robert Tappan Morris was a graduate student at Cornell in the late 1980s who authored a computer program known as a “worm” which was designed to exploit several weaknesses in Internet security.Morris hoped that the code would spread across the thennascent Internet to illustrate four common security flaws: a bug in common e-mail software, SENDMAIL; a bug in an Internet query function known as the “finger daemon”; a design flaw that allowed computers to use privileges on one computer to obtain privileges on another; and the use of simple, easy-to-guess passwords. Morris designed the code so that it would try various of these means of infecting its targets, and then once it succeeded it would try other computers. Morris released the worm from a computer at MIT on November 2, 1988, but the worm quickly spread out of control and replicated itself so often that it eventually shut down a good portion of the early Internet. Morris was charged with violating 18 U.S.C. §1030(a)(5)(A), which at the time prohibited “intentionally access[ing] a Federal interest computer without authorization” if damage resulted. A jury convicted Morris at trial. On appeal, Morris argued that his computer access was not without authorization because he had rights to access several of the infected computers, including computers at Cornell, Harvard, and Berkeley—schools where Morris apparently held legitimate accounts. Morris based his argument on a distinction between two closely related types of abuse of authorization: access “without authorization” and access that “exceeds authorized access.” Some unauthorized access statutes prohibit only access without authorization; others prohibit both access without authorization and access that exceeds authorization. The court rejected Morris argument. According to the court, Morris had accessed computers without authorization because he had used weaknesses in several programs to obtain access in unintended ways. As the court put it, Morris did not use those programs “in any way related to their intended function.” The SENDMAIL program was an e-mail program, and the finger daemon was designed to let users query information about other users. However, Morris “did not send or read mail nor discover information about other users; instead he found holes in both programs that permitted him a special and unauthorized access route into other computers.”

Shurguard Storage Centers, Inc. v. Safeguard Self Storage, Inc.

Shurgard involved a civil dispute between two business competitors in the self-storage business. According to the complaint, the defendant lured away several of the plaintiff’s employees, including an employee named Eric Leland who had access to the plaintiff’s confidential business plan and other trade secrets. Before leaving the plaintiff’s company, Leland e-mailed several of the plaintiff’s trade secrets and other proprietary information to the defendant. The plaintiff later sued the defendant under 18 U.S.C. §1030(a)(2)(C), on the theory that Leland had “intentionally access[ed] [the plaintiff’s] computer without authorization,” or in excess of authorization, and thereby obtained information from the plaintiff’s computer in violation of the federal unauthorized access statute.The defendant then moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), on the ground that Leland had not accessed the plaintiff’s computers without authorization or in excess of authorization. The district court disagreed. The court adopted the plaintiff’s theory of authorization, which was that “the authorization for its . . . employees ended when the employees began acting as agents for the defendant.” The court found its guidance in the Restatement (Second) of Agency: “Unless otherwise agreed, the authority of an agent terminates, if, without knowledge of the principal, he acquires adverse interests or if he is otherwise guilty of a serious breach of loyalty to the principal.” Applying this standard, the court concluded that the defendant’s employees “lost their authorization and were ‘without authorization’ when they allegedly obtained and sent the proprietary information to the defendant via e-mail.” In support of its holding, the court turned to the CFAA’s legislative history, which the court argued showed a congressional design broadly to prohibit computer misuse, especially where intellectual property rights were at issue.

Fugarino v.State

Fugarino was a computer programmer whose behavior at work became increasingly bizarre. When Fugarino learned that another employee had been hired at the company, Fugarino became enraged, telling another employee that the company’s code was “his product, that no one else was going to work on his code, that nobody was going to take his place and that he was ‘going to take his code with him.’” Fugarino then started deleting sections of code from the employer’s network.When the employer confronted him, Fugarino told the employer that “the blood of his dead son” was in the code and that the owner “would never get to make any money from that code.” On appeal following his conviction, Fugarino argued that his conduct was not knowingly without authority. The Georgia court disagreed. Fugarino lacked authority because “[t]he owner of the company . . . did not give Fugarino authority or permission to delete portions of the company’s program.” Further, “the vindictive and retaliatory manner in which Fugarino deleted large amounts of computer code” demonstrated that he knew that he lacked authority to delete the code.

EF Cultural Travel BV v. Explorica, Inc.

Explorica involves another civil dispute between two business competitors—in this case, the well-established student travel business, EF, and an upstart competitor, Explorica. Explorica’s vice president, Philip Gormley, was a former vice president at EF who had signed a confidentiality agreement with EF promising not to disclose any of EF’s “technical, business, or financial information, the use or disclosure of which might reasonably be construed to be contrary to the interests of EF.” When Gormley arrived at Explorica, he decided that Explorica could compete with EF by undercutting EF’s prices available from its public website. Gormley instructed a computer consultant to design an automated “scraper” program that could query EF’s website for tour prices and then send the EF price list to Explorica. Each use of the scraper sent 30,000 queries to the EF computer. Explorica used the scraper twice, enough to allow it to learn and then undercut EF’s tour prices, all unbeknownst to EF. When EF learned of the scraper program, it sought a preliminary injunction against Explorica’s use of the scraper on the ground that (among other things) it violated the federal unauthorized access statute by accessing EF’s computers either without authorization or by exceeding authorized access.The district court agreed, reasoning that use of the scraper was so far beyond the “reasonable expectations” of EF that it was clearly unauthorized. On appeal, the First Circuit affirmed the district court’s injunction, concluding that the use of the scraper likely violated the statute because its use implicitly breached the confidentiality agreement that Gormley had signed with EF. The court reasoned that Gormley’s decision to use a scraper on EF’s site (as well as his help designing the scraper) relied on his insider’s knowledge of EF’s website and business practices. However, Gormley had signed a contract with EF promising not to disclose any information about EF in a way that might be against EF’s interests. Because the scraper was used against EF’s interests, the court reasoned, Explorica’s use of the scraper relied on information obtained in violation of the contractual agreement. As a result, use of the scraper exceeded authorized access to EF’s computer and violated §1030. The opinion acknowledged that any user could manually query the EF website to learn EF’s prices, but concluded that the scraper’s “wholesale” approach “reeks of use—and, indeed, abuse—of proprietary information that goes beyond any authorized use of EF’s website.

Love Bug Virus

Two young Filipino computer programming students named Reonel Ramones and Onel de Guzman, became the target of a criminal investigation by our National Bureau of Investigation (NBI) agents. The NBI received a complaint from Sky Internet, a local Internet service provider (ISP). The ISP claimed that they have received numerous calls from European computer users, complaining that a computer virus denominated as “ILOVEU” virus was sent to their computers through the said ISP. As events would later show, the “ILOVEU” virus was able to replicate itself in as many addresses as there are in a single computer’s address menu to which it was originally sent The computer user enticed by the title “ILOVEU” and thinking it is a romantic e-mail message, would click on the message. He would then unknowingly unleash the same to other addresses found in his computer. By mathematical progression, the virus was able to contaminate not only Philippine computers, it jumped off to Asian users, and subsequently to the United States and Europe. Billions of dollars in Internet transactions were lost, innumerable corporate, banking and financial files were erased. It is believed that military and defense files worldwide were likewise affected. This is not to mention the inconvenience suffered by millions of computer users as a result of clogged and heavy traffic in the internet. After several days of surveillance and investigation of ISPs that the virus used, the NBI was able to trace a frequently appearing telephone number, which turned out to be that of Mr. Ramones’ Manila apartment. His place was searched by the NBI and Mr. Ramones was consequently arrested and placed on inquest investigation before our Department of Justice (DOJ). Mr. De Guzman was likewise arrested in Manila. At that point, the NBI was at a loss as to what felony or crime to charge the two with in court. There were some agents who theorized that they may be charged with violation of our Republic Act No. 8484 or the Access Device Regulation Act, a law designed mainly to penalize credit card fraud. The reason supposedly being that both used, if not stole, pre-paid Internet cards which enabled him to use several ISPs. Another school of thought within the NBI opined that Messrs. Ramones and de Guzman could be charged with malicious mischief, a felony involving damage to property under the Philippines’ Revised Penal Code, which was, it should be mentioned, enacted in 1 932. The problem, however, with malicious mischief, is that one of its elements, aside from damage to property, was intent to damage. In this case, Mr. De Guzman claimed during custodial investigation that he merely unwittingly released the virus.

To show his intent, the NBI investigated the AMA Computer College, the programming school in Manila where Mr. De Guzman dropped out on his senior year. There, it was found that not only was Mr. De Guzman quite familiar with computer viruses, he, in fact, proposed to create one, In his undergrad thesis, he proposed the commercialization of a Trojan virus, one that innocently enters another computer but would later steal passwords, addresses, and files therefrom, much like the Trojan horse of Greek mythology. He contended that through the Trojan virus, the user would be able to save on, if not totally make do without, prepaid Internet usage cards since passwords could be obtained by the virus. Needless to state, his thesis was rejected by school administrators for being “illegal.” Thus, he was forced to drop out.

Despite the worldwide media attention on the case, the DOJ first resolved to dismiss the charge against Mr. Ramones. The panel of DOJ prosecutors composed to determine probable cause against him saw at Mr. Ramones could not be indicted on either a violation of the Access Device Act or under the antiquated penal provisions on malicious mischief. It should be noted that in the Philippines, being a civil law jurisdiction, the legal doctrine “nullum crimen, nulla poena sine lege” is strictly adhered to. There is no crime where there is no law punishing it. It was resolved that our Access Device Regulation Act punishes the trafficking, control, custody or possession of credit card-making or altering equipment, without being in the business thereof. Since a prepaid Internet usage card is not an “access device” within the purview of the law, the law cannot be given a broader scope as to include computer hacking or uploading a computer virus. As to the charge of malicious mischief, the charge was likewise dismissed because only one local ISP was impleaded as a private complainant. The DOJ found that there was no tangible evidence that Mr. Ramones specifically intended to damage or injure that ISP’s facilities. Mr. Ramones was thus released from custody. It is rumored that he is now employed with a British computer software firm. A few weeks later, Mr. De Guzman was likewise released on the same grounds.

Conclusion:

Based on the readings of the cases and our own love bug virus we should define unauthorized access as any use of a computer in excess as to what you have been told or allowed to do and access to a computer should be understand as any successful interaction with the computer. Even if one is granted lawful access to a part of computer or to have access to other parts of the network but if you use it for a different purpose other than what you are suppose to do that is already unauthorized access. Another example would be if an employee uses a corporate computer during office hours and that employee used his computer in a way that was beyond the scope of the excess or implied consent of the owner of the computer should be treated as unauthorized access. The same goes if a person while using the internet and then come across with the question whether or not he agrees with the term of the agreement , then he accepts but violates the term of agreement must also be treated as a case of unauthorized access.

A person who uses a computer without the consent of the owner is to be considered as illegal access to a computer. In other words he knowingly and willfully uses a computer without the consent of a the person who is to authorized to give consent. If these are made clear in our law and implemented strictly a lot of crimes maybe prevented. An example of these is the recent case of Dr. Hayden Kho, the person who uploaded those video must be answerable for unauthorized access because he committed something that he was not supposed to do. A person who illegally obtained information or who have access to such information but uses the same for illegal purpose or uses it in a way that he was not allowed clearly an indication of a violation and must be held answerable. Just imagine if those sensitive and personal information about a depositor in banks, and then someone who have access to those information uses it for illegal transactions. Illegal access to a computer and unauthorized access is a tool for the violators of a copyrights. Statutes must be drafted that any computer misuse would result to unauthorized access.
Currently our law is not specific on many things about the misuse of computer, it remains to be seen whether our measure to prevent and redress computer crimes will prove to be successful what is too obvious is that we have to have more definite statue to address the problems of unauthorized access to cope with the enormous computer crimes that we encounter. Our ultimate goal is to achieve an appropriate balance in the law, providing strong and effective rights, but within reasonable limits and with fair exceptions.

Vergara, Mark Daniel: The State of Philippine Music and Current Legal Challenges

26/09/2012
SY2009-2010 1st Semester
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I. Introduction

Traditional Philippine Music

The music of the Philippines in general are performance arts composed in various genre and styles from a mixture of indigenous countries and cultures like Asian, European, Latin American, and American. [1]

The country boasts of a rich heritage in music which has existed during pre-colonial and post colonial times. The Kulintang for example, which is popular and played by Muslim Filipinos during pre-Spanish colonization in the 16th century.[2] The Harana or Kundiman, a lyrical song made popular in the Philippine Islands, which dates back to the Spanish period, whose lyrics depict a romantic theme, usually portraying love, passion, sadness, or in other styles based on a love story.[3] The Cariñosa (meaning loving or affectionate one), is a Philippine national dance from the María Clara suite of Philippine folk dances, where the fan, and handkerchief plays an instrument role as it places the couple in romance scenario.[4] The Tinikling, a Philippine dance which involves two individual performers hitting bamboo poles, using them to beat, tap, and slide on the ground, and against each other in co-ordination with one or more dancers who steps over, and in between poles.[5] And the Rondalla, which is performed on ensembles comprising mandolin instruments of various sizes called bandurria composed on the Iberian tradition.[6] All of the genres and styles mentioned still exist and patronized by the traditional niche audience.

OPM Music

Original Pilipino Music, now more commonly termed Original Pinoy Music or Original Philippine Music, (frequently abbreviated to OPM) originally referred only to Philippine pop songs, especially those in the ballad form, such as songs popularized in the 1970s through the present by major commercial Philippine pop music artists like Pilita Corrales, VST & Co., Ryan Cayabyab, Basil Valdez, Eraserheads, Freddie Aguilar,Rey Valera, and APO Hiking Society.[7]

OPM pop has also been regularly showcased, up to the present in the live band scene. In the passage of time as well as the development of many diverse and alternative musical styles in the Philippines, the term now refers to any type of Original Philippine Music created in the country or composed by individuals of Philippine extraction, regardless of location at the time when composed are considered OPM, and the lyrics may be in any Philippine languages or dialect.[8]

In recent years, OPM have been located in Manila, where Tagalog, and English are the dominant languages. Other ethnolinguistic groups such as the Visayan, Bikol, and Kapampangan, despite making music in their native languages are not recognized in the OPM category. Multiculturalism advocates, and federalists often connect this to the Tagalog cultural hegemony of the capital city of Manila.[9]

Having successfully created a subgenre of Philippine Rock they called Bisrock, the Visayans by far have the biggest collection of modern music in their native language, following suit are the Kapampangans.[10] Despite the growing clamor for non-Tagalog, and non-English music, and greater representations of other Philippine languages; the local Philippine music industry, which is located in Manila, is still skeptical in making investments. Some of their major reasons include the language barrier, the still-small market, and the demonization of regionalism in the Philippine Islands.[11]

II. State of the Local Music Industry

From vinyl records, cassettes, cds, dvds and online media, the music industry has evolved its form in sync with technology throughout the years. Technology has also enabled piracy to take on many forms. Piracy of films and music in one form or another had existed since the technology for reproduction became easier and cheaper. In the 1970‘s, when the cassette became a popular musical format, it opened up a whole new market for portable music. Soon, tape recorders became cheap and easily accessible to the public, and while that increased the demand for products, it also brought with it the problem of pirated music cassettes.[12] Today, digital copies of songs and videos stored in CD or DVD format can be brought at a low price among tiangges in Quiapo, stalls inside malls, and just about anywhere where market is available. These pirated CD’s and DVDs are produced in massive quantities by high speed duplicating machines.[13]

In order to mitigate this existing problem, the OMB (Optical Media Board), (originally Video Regulatory Board),[14] a special agency through created by the government with the concerted effort of artist, for the purpose of preventing unauthorized counterfeiting and duplication of original copies of films and music.

Because of piracy and duplication, local music production was severely affected. In 1996, a hit album could sell 10x platinum, 1 platinum being equivalent to 40,000 copies. By 2001, a double platinum was considered a big hit. In 2002, the bench mark for a platinum album was reduced to 30,000 copies by the music industry.[15]

While piracy continued, the numbers of internet users have risen from 2,000,000 to 14,000,000 in just a span of 8 years (2000-2008).[16] The popularity of the internet paved way as an opportunity for the economy as well as the music industry. The industry now has a better reach to their audience, which also gave artists the prospect to thrive on advertising and promotion. Artists have opted to create websites and join free social networking sites to provide more than just updates and information about themselves, but also included, free streaming and sometimes downloads for free as well.

However, the internet can be both of a good thing and a bad thing. Millions of songs all over the globe, including local music, ripped from original albums are continuously uploaded by unknown users for their unlawful distribution, sharing, downloading, and streaming in the internet. Peer to peer sites offers high speed file sharing, social networking sites allows private users to create links, or upload songs and videos available publicly for streaming. Live recordings of performances captured by fans on video and audio are uploaded in popular sites like Youtube. All of these acts are being committed without the artists’ consent that it has become so prevalent and common that most artists have already become passive and tolerated such practices. Some have also accepted to view these acts positively in a way as free advertising and promotion.

Artists may seem to react oddly in addressing existing circumstances like piracy and illegal downloading. In 2000, Filipino artists Rivermaya released an album entitled “Free”, where thousands of copies, including free downloads were given away and made available to visitors of top Philippine and Asia-based websites. Taken from the official statement of Rivermaya, “The ‘free’ thing, although really extreme, just shows that with the internet, artists can set the price they want for their music. If this thing works for musicians like us, it will be a great way of putting out music and choosing how it will reach your friends and fans.”[17] The move was to advance themselves and reach not just the local fans but those outside the country as well.

International artist Nine Inch Nails took a similar move for their latest album “The Slip” made available for free download on their website [18] but have reportedly to still have garnered $1.7 Million in record sales.[19]

III. Current Issues

Early this year, Gary Granada a public school tutor (University of the Philippines) of a masteral subject in Development Communications and a board member of FILSCAP,[20] filed a suit against GMA network alleging that the latter infringed his copyrighted work by using his original study without his consent. GMA on its answer claims that Gary Granda was commissioned to create the study and that the same should be treated as a collective work. According to Granada’s posted audio recording on the internet, the same was not a collective work, and sole authorship should be attributed to him alone.[21]

On the facts given by Granada, the study was allegedly abandoned by the network, creating a new one instead, using his original study as a template.[22] His claim now presents an issue whether the new musical arrangement intended for the “Threepid Handog Edukasyon ng Procter and Gamble.” commercial of GMA is a derivative work of Granada’s original study, and falls under the definition in Sec. 173 of the Intellectual Property Code. Assuming however that it is a derivative work, is GMA liable for the said claim?

In another issue, according to news posted October 29, 2008 from Inquirer.net, popular band Rivermaya has parted ways with its manager Liza Nakpil, over the controversy regarding the ownership of the Rivermaya trade name. In an article posted October 5, 2009 in the Manila Bulletin website, the IPO issued its decision regarding the matter and upheld that the same is registered in the name of Liza Nakpil being the first to file for its application for registration.[23] Rivermaya through Mark Escueta, who is a present member of the band, insists that the tradename is and should be originally attributed to its original members namely, Bamboo Manalac, Perf Decastro, Nathan Azarcon and Rico Blanco who formed the band in 1993. At present the band is composed of Mark Escueta, Japs Sergio, Mike Elgar, and Jayson Fernandez. Nakpil registered the “Rivermaya” trademark with the IPO on July 7, 2008. Escueta, Sergio, Elgar, and Fernandez filed an opposition to the ownership of the said trademark on October 21, 2008.[24]

IV. Legal Remedies

The music industry is not made hapless by the exigent circumstances present. There are various legal alternatives offering different alternatives that could cater to the artists’ requirement for protection of their original works.

Licensing for example, not just for the protection of the artists but for the benefit of the public as well, enables the latter to distinguish works that can be legally distributed, or used whether limited only to non-commercial, or commercial purpose. The licensor may grant license under intellectual property laws to authorize a use to a licensee, sparing the licensee from a claim of infringement brought by the licensor.[25]

Licensing is available for free. Creative Commons, is a nonprofit corporation that provides free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.[26] Famous international band Nine Inch Nails, as well as independent local artist like Drip has availed of the free licensing by Creative Commons.

FILSCAP on the other hand, is a non-stock, non-profit association of composers, lyric-writers and music publishers established in 1965 to administer the public performance, mechanical reproduction and synchronization rights granted by law to creators and owners of original musical works.[27] FILSCAP has made possible and easier the collection of royalties due to artists for the performance and playback of copyrighted music on commercial establishments like restaurants and stores in the country. Royalties from license fees collected by FILSCAP, after deduction of administration costs, is distributed annually to its members and affiliated societies whose works were performed, reproduced or synchronized during the year.[28]

With regard to protection on trademarks, the Rivermaya and Nakpil issue serves as hindsight. Artist names and band names after all are trademarks and rights that can be protected. However, unlike copyright, it is not protected upon creation, but requires an application for its registration and protection as provided for by law. Registration on trademarks follows the first-to-file priority in right rule.[29] Trademark rights are granted to the first to use the trademark and/or first to file a trademark application.[30] In recent events worth mentioning, the emo/punk/rock band ChicoSci decided to change the name Chico Science to ChicoSci, in order not to be confused with the Brazilian singer (aka Francisco de Assis França [31]) using the same name.[32]

Foreign laws could also serve as precedents in legislation and implementation of laws and legal remedies, specially those relating to illegal downloading and sharing. In Europe the “three strike model” has already been implemented in most of its countries. The proposed legislation operates under a “three strikes” system. A new state agency would first send illegal file-sharers a warning e-mail, then a letter and finally cut off their connection if they were caught a third time.[33] The rule however was not implemented in Germany by reason of privacy issues and laws.[34] If it would deem fit, feasible, and compatible with our existing laws, it can be adopted in our country through effective lobbying for legislation.

Conclusions

Despite the prevailing negative circumstances surrounding the industry, the local artists remain optimistic especially those in the OPM scene. OPM has never been more alive until now, and may be considered even better compared with the 1990s where bands in the Philippines were just starting to surge through the music scene, gaining support from Filipinos at a scale they have yet to enjoy.[35]

The influx of pinoy bands at such time, including but not limited to the Eraserheads, Rivermaya, Wolfgang, Fatal Posporos, Keltscross, Color it Red, Sugar Hiccup, and Put3ska as well as the flourishing number of venues for live gigs such as Club Dredd and Mayric’s are accurate indicators that OPM songs as delivered by these rock bands have found a steady, sturdy following.[36]

Today, there is a noticeable increasing number of hopefuls, aspiring bands and new artists. Independent labels like Terno Records are able to produce on its own unique talents worth mentioning like Up Dharma Down, which was also critically acclaimed by Lara Day in the Time Magazine feature “The Way of Dharma” in 2007.[37]

More and more musicians are also coming out of their regional turf and sharing their craft to the rest of the country. Yet another proof of how self-sustaining the Philippines is, we simply never run out of more Filipino artists with more to share. Among those that hail from the provinces are Typecast, which comes from Laguna; Urbandub from Cebu; and Gayuma, from Batangas.[38]

The country’s music industry was able to survive regardless on the insufficient legislation and support from the government. It carries with it a lot of potential and hope. With just enough legal tools and implementation to arm and guide our country’s notable artists the protection they deserve, it may only take a few years before this become a booming industry that will contribute significantly to save our ailing economy.

Footnotes

[1] http://en.wikipedia.org/wiki/Music_of_the_Philippines

[2] Ibid

[3] Ibid

[4] Ibid

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid

[9] Ibid

[10] Ibid

[11] Ibid

[12] http://www.omb.gov.ph/aboutus.html

[13] http://67.225.139.201/pampanga/disc-duplicating-machines-seized

[14] http://www.omb.gov.ph/aboutus.html

[15] Ibid

[16] http://www.internetworldstats.com/asia/ph.htm

[17] http://www.schizo-archives.com/saveas/rivermaya_free/index.html

[18] http://theslip.nin.com/

[19] http://www.popmatters.com/pm/review/nine-inch-nails-the-slip1

[20] http://www.garygranada.com/profile%20pics.htm

[21] http://www.showbizgalore.com/2009/01/gma-kapuso-violates-copyright-and-abused-gary-granada/

[22] http://kurinto.wordpress.com/2009/02/06/gary-granada-cries-foul/

[23] http://www.mb.com.ph/node/223327/ipo-uphold

[24] Ibid

[25] http://en.wikipedia.org/wiki/License

[26] http://creativecommons.org/about/

[27] http://www.filscap.com.ph/aboutus.aspx

[28] http://www.filscap.com.ph/membership.aspx

[29] http://www.freepatentsonline.com/help/item/First-to-File.html

[30] http://www.registeringatrademark.com/trademark-law-basics.shtml

[31] http://en.wikipedia.org/wiki/Chico_Science

[32] http://en.wikipedia.org/wiki/Chicosci

[33] http://news.bbc.co.uk/2/hi/technology/8322308.stm

[34] http://www.p2p-blog.com/item-966.html

[35] http://www.kabayancentral.com/articles/Pinoy-Bands-Still-Making-Waves-in-The-Philippine-Music-Industry.html

[36] Ibid

[37] http://www.time.com/time/magazine/article/0,9171,1644902,00.html

[38] Ibid

Songcal, Skylar: A study on internet libel in the Philippines

26/09/2012
SY2009-2010 1st Semester
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Introduction

Libel committed through the internet is still a novel issue in the Philippines. Unlike other highly industrialized countries such as the United States of America and the countries in Europe where the developments in technology has urged such countries to enact new laws in order to update existing laws, the Philippines has no law on internet libel. In 2000 however, the Philippine legislature enacted the Republic Act 8792, otherwise known as the E-Commerce Act which paved way to A.M. NO. 01-7-01-SC -RE: Rules on Electronic Evidence which was made applicable in the Revised Rules of Court. Although the E-Commerce Act did not specifically provide a provision on internet libel, it nonetheless provided for a the liability of the service providers in case the electronic data message or electronic document is unlawful and the service provider fall in any of the circumstance presented in Section 30(a) of Republic Act 8792.

Jurisprudence on the issue of libel committed through the internet is not available. As of October 2009, there are no Jurisprudence as decided by the Supreme Court of the Philippines in such matter.

There have been a number of cases filed in court involving libel committed through the internet but such cases which will be further discussed in this study have been discontinued after an amicable settlement or are still pending before the lower courts.

Libel in the Philippines

Libel in the Philippines is defined by Article 353 of the Revised Penal Code as “A libel is a public and malicious imputation of the crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonour, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Libel is a form of defamation or defamacion in the Spanish text of the Codigo Penal of which the Revised Penal Code of the Philippines originated from. It is that which tends to injure the reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. (MVRS Pub. Inc. vs. Islamic Da’wah Council of the Phils., Inc., 230 Phil. 241)

The protection of any person whether natural or juridical for any interference on his privacy or attacks on his honour or reputation is protected under the United Nations Universal Declaration of Human Rights as provided in Article 12 thereof to wit:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The United Nation’s Universal Declaration of Human Rights is an international law which binds the Philippines since the latter is a member thereof. Article 3 section 1 of the 1987 Philippine Constitution does not explicitly provide for the protection of the right to privacy nor that of honor or reputation. Article 3 however, is not the source of civil and political right but a limitation on behalf of the state.

In a case decided by the Supreme Court of the Philippines, it held that the enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publications, the liability to make full compensation for the damage done. (Worcester vs. Ocampo 22 Phil. 42)

In order for libel to attach in Philippine Law, the following elements were enumerated in a Supreme Court decision: (Diaz vs. Court of Appeals, G.R. No. 159787)

  1. It must be defamatory
  2. It must be malicious
  3. It must be given publicly
  4. The victim must be identifiable

It was stressed by the Supreme Court in Diaz vs. Court of Appeals that all the four (4) elements of libel must be present, for an absence in any one of those previously enumerated, the case for libel will not prosper. Thus, in order to understand the elements of libel punishable under the Revised Penal Code, a discussion particular to each element must be conducted.

The test of the defamatory character of the words used is that a.) It must be construed in their entirety and taken in their plain, natural and ordinary meaning, (Novicio vs. Aggabao, 463 Phil. 510, 516) and b.)The words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach the honesty, virtue, or reputation, or to hold him up to public ridicule. (U.S. vs. O’Connell, 37 Phil. 767)

As for the second element of malice, malice is presumed by law and thus the offender must prove that the act was done under any of the exceptions of Article 354 of the Revised Penal Code.

Article 354 of the Revised Penal Code which provides to wit:

“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

  1. Private Communication made by any person to another in the performance of any legal, moral, or social duty;
  2. A fair and true report, made in good faith without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Under Philippine law, in relation to the application of law in libel, truth is not a defense. What is punished under Philippine law is the actual act or commission of the offense. Unlike in the United States however, truth is an absolute defense. Paragraph 1 of Article 354 of the Revised Penal Code states the presumption of malice in defamation. I regardless of the truthfulness of the imputation, the presumption of malice still exists unless otherwise proven that it was performed in good and justifiable intention. The offended party need not produce proof of malice.

Defamatory imputation may cover: a.) the imputation of a crime allegedly committed by the offended party, b.) a vice or defect, real or imaginary of the offended party, c.) any act, omission, status of, or circumstance relating to the offended party.

In the third element, Article 354 of the Revised Penal Code provides for the Requirement for publicity. It is essential that the defamatory statement was given publicly. The mere composing of libel is not actionable as long as the same is not published. It was held by the Supreme Court that the communication of libellous materials to the person of the defamed alone does not constitute publication since that could not injure his reputation that others hold of him. (People vs. Atencio, CA-G.R. Nos. 11351-R to 11353-R)

On the question of the meaning of publication and when the libellous matter is deemed published? It was held in previously cited case of People vs. Atencio that the communication of the defamatory matter to some third person or more persons is deemed to be a publication. However, the same defamatory matter must be read by the third person for such to constitute publications. Thus in a case where the defamatory matter was sealed in an envelope and sent through a messenger, the same does not constitute publication. (Lopez vs. Delgado, 8 Phil. 26)

In light of the requirement of publication to at least a third person in libel cases, there is an exception to the liability of the offender. Article 354 provides for an exception when the libellous matter was committed in the purview of a privileged communication whether it was an absolute privileged communication or a conditional privileged communication.

The members of congress in the discharge of their function are protected by absolute privileged communication and therefore not actionable regardless if its author acted in bad faith. There is a conditional privileged communication when the libellous matter was communicated in relation to a legal, moral or social duty. The communication however must be addressed to the proper party of who has been charged with supervision over the person the libellous matter was committed against. It was held by the Supreme Court that when the third party communication which constituted publishing was the supervisor of the person of whom the libellous matter was against, it is deemed to be a private communication if predicated upon the fact of a legal, moral, or social duty. (U.S. vs. Galeza, 31 Phil. 365)

In relation to libellous matter posted through an internet forum, message board, yahoo group, chat room, or any other similar means, the libellous communication is deemed to have been published when viewed by at least a third person as cited in People vs. Atencio. The matter posted in such internet platforms even when performed as a legal, moral, or social duty to bring to the knowledge of an official who has supervisory duty over the person of whom the libellous matter was against is still considered libellous for not being communicated privately. Thus, when the accused instead of communicating the matter to the official who is the proper authority, aired the same in a public meeting, it was held that the statements made where not privileged. (People vs. Jaring, C.A., 40 O.G. 3683)

It however, should be noted that in the case of Yuchenco vs. Parents Enabling Parents Coalition, Inc. where the Yuchengco’s filed a libel suit against the Parents Enabling Parents Coalition for allegedly posting in the latter’s website “malicious” articles against the former and their group of companies, the Court of Appeals has dismissed the case owing for the lack of endorsement by the Office of the Solicitor General, which should represent the government in the Supreme Court and Court of Appeals in all criminal proceedings as mandated under Presidential Decree 478. The Court of Appeals decision in the previously cited case added that any party may appeal a case before them without the conformity of the Office of the Solicitor General only in behalf of the civil liability claims. In the preliminary investigation of the libel suit in Yuchengco vs. Parents Enabling Parents Coalition, Inc. the City Prosecutor of Makati found probable cause to charge the members of the coalition with 13 counts of libel. The Regional Trial Court of Makati however dismissed the case for lack of jurisdiction. This prompted the Yuchengco’s to file an appeal without the endorsement of the Department of Justice. The issue involving internet libel in that case was ordered to be dismissed by the Department of Justice which ruled that there is no such thing as internet libel since Article 355 of the Revised Penal Code strictly provided for the means of which libel may be committed.

Here in lies the question on what the means libel may be committed in light of Article 355 of the Revised Penal Code. Article 355 of the Revised Penal Code provides for the manner of which it may be committed and the penalty for its commission, to wit:

“A libel committed by means of writing, printing, lithography engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correctional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.”

Since because of the novelty of internet libel in the Philippines there are no established Supreme Court jurisprudence as to the matter, it up to the bar to find existing jurisprudence of a similar nature to persuade the courts. Internet libel may be presented as among those means enumerated in Article 355 of the Revised Penal Code under “xxx or any other similar means, xxx”. It was held in one Supreme Court decision that defamatory words having been made in a television program was considered to be libel as contemplated by Article 355 of the Revised Penal Code. While the medium of television is not expressly mentioned among the means specified in the law, it easily qualifies under the general provision “or any other similar means.” (People vs. Casten, C.A.-G.R. No. 07924-CR)

The fourth element as enumerated by Diaz vs. Court of Appeals is that the victim of the libellous matter should be identifiable. The victim may be identified or identifiable based on the contents of the libellous article. It is not sufficient that the offended party recognizes himself as the person attacked or defamed; it must be shown that at least a third person could identify him as the object of the libellous publication. (Kunkle vs. Cablenews-American, 42 Phil. 757)

In the still pending case of Belo vs. Guevarra, which as of October 2009 is still in the stage of preliminary investigation, in relation to libellous statements posted through the internet social networking site Facebook by Atty. Argee Guevarra in his Facebook profile page, there allegedly was a string of posts in the profile status on the website page which were “malicious”.

Here in lies the question of whether or not libel published in different parts may be taken together to establish the identification of the offended party. According to one Supreme Court jurisprudence where in its facts there were two publications the first of which did not mention any names and the second of the two publication merely consists of a named cartoon of the person referred to in the first publication, the court considered the two publications together to establish the identity of the offended party. (U.S. vs. Sotto, 36 Phil. 389)

Thus, in relation to U.S. vs. Sotto and Kunkle vs. Cablenews-American, if through the publication in different parts of the libellous articles the entirety of the material produces the effect of being identifiable at least to a third person, the third element for identification is complied with. The identification however must not be to a group or class except when the statement is so sweeping or all-embracing as to apply to every individual in that group or class. (Newsweek, Inc. vs. Intermediate Appellate Court, 142 SCRA 171)

In view of all the elements of libel discussed, the attendance of any of those four (4) elements may be sufficient to hold any person who performs any act constituted in any of the following manner provided for under Article 355 of the Revised Penal Code in relation to Article 353 of the same article and communicates the same to at least a third party who may identify the person of whom the libellous article injures may be held liable for the crime of libel.

May the service provider of the internet platform of which the libellous article was published be held accountable for libel solidarily or jointly with the author of such libellous material?

Under the Republic Act 8792 or Electronic Commerce Act of 2000, generally, the Service Providers may not be held liable for the possible offenses committed by person who they are providing their service unless there is an attendance of any of the exception provided for by Section 30 of the said act. Section 30 of Republic Act 8792 provides to wit:

“SEC. 30. Extent of Liability of a Service Provider. – Except as otherwise provided in this Section, no person or party shall be subject to any civil or criminal liability in respect of the electronic data message or electronic document for which the person or party acting as a service provider as defined in Section 5 merely provides access if such liability is founded on –

(a) xxx

(b) The making, publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material: Provided, That:

i.) The service provider does not have actual knowledge xxx

ii.) The service provider does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and

iii.) The service provider does not directly commit any infringement or other unlawful act xxx: Provided, further, That nothing in this Section shall affect –

a) Any obligation founded on contract;

b) The obligation of a service provider as such under a licensing or other regulatory regime established under written law; or

c) Any obligation imposed under any written law;

d) The civil liability of any party to the extent that such liability forms the basis for injunctive relief issued by a court under any law requiring that the service provider take or refrain from actions necessary to remove, block or deny access to any material, or to preserve evidence of a violation of law.”

One complaint involving libel published through a “blog” was brought to the City Prosecutor of Pasig, Metro Manila, involving the question of the liability of the service provider. The complaint of Aquino vs. RP Nuclei Solutions and Olandres has been dismissed by the City Prosecutor. The RP Nuclei Solutions was the alleged server or host of the website ‘greedyolddumbass.com’, an internet forum where the alleged libellous comments had been made. RP Nuclei Solutions is owned by a company called Ploghost which in turn is owned by Olandres. The Prosecutor noted that the RP Nuclei Solutions could not be held for libel because as a server it cannot vary or change the contents of the websites it is servicing. The service provider may only discontinue the service if the user violates the Terms of Service as agreed upon by their registration with the provider. Furthermore, the Prosecutor stated that “With worldwide web concerned, the traditional concept of publishers of a newspaper or periodical cannot apply insofar as liability for libel in the setting up, ownership, management and supervision of an Internet site, web log [blog] or forum is concerned. Hence, any liability for libellous statements or remarks that may be coursed through or communicated through the websites that it is hosting will solely devolve on the part of the authors.

Jurisdiction

The jurisdiction of the Philippine law as regards acts or omission punishable under the revised penal code are only those committed within the territory of the Philippines unless falling under any of the circumstance enumerated in Article 2 of the Revised Penal Code. The Philippine courts in order to validly try the case must have valid jurisdiction over the, a.) territory, b.) subject matter, and c.) the person.

In the 2007 controversy in the Philippines involving an Australian, Brian Gorrell, and Filipino, Montano, regarding the libellous articles posted by Gorrell in his ‘blog’ while he was in Australia against Montano for allegedly swindling him of money amounting to seventy thousand dollars ($70,000), it raised the issue of jurisdiction if ever the complaint will be filed by Montano in the Philippine court. A case may be filed in the trial court of the Philippines in the territorial jurisdiction of the court where the offense has been committed or the place of residence of any of the parties involved.

It must be noted of the existence of the principle in Private International Law of Lex loci delicti commissi. Lex loci delicti commsi means ‘law of the place where the tort was committed’. The principle applies when the two contending parties are domiciled in different countries. Under Philippine law as regards jurisdiction, the case may be filed in the place where the act was committed or the place of residence of either parties. Thus in international law, abiding by the principle of lex loci delicti commssi, the laws of the place where the tort was committed shall govern, and the same acquires proper jurisdiction.

In a case decided by the High Court of Australia involving defamation committed through the internet, it ruled that:

“The appellant’s submission that publication occurs, or should henceforth be held to occur relevantly at one place, the place where the matter is provided, or first published, cannot withstand any reasonable test of certainty and fairness. If it were accepted, publishers would be free to manipulate the uploading and location of data so as to insulate themselves from liability in Australia[235], or elsewhere: for example, by using a web server in a “defamation free jurisdiction” or, one in which the defamation laws are tilted decidedly towards defendants.xxx” (par.199, Dow Jones and Co. vs. Gutnick, 2002, HCA 56)

In the previously cited case, it also decided that the place of publication is not the server where the defamatory statements were posted. Though jurisprudence of another state may be called upon and be used to persuade the Philippine courts. As provided for by Article 21 of the New Civil Code, “Anyone who wilfully causes injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”

References


Author licensed this article under Creative Commons Attribution 3.0 Philippine license

Patoc, Alex: Green Computing – IT responsibility in the protection of the environment

26/09/2012
SY2009-2010 1st Semester
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I. INTRODUCTION

Mankind’s survival in his only planet called Earth is in peril. Global warming or climate change is currently the biggest threat to man’s existence. Is it really happening? If yes, are humans causing it?

Yes. Earth is already showing many signs of worldwide climate change.

  • Average temperatures have climbed 1.4 degrees Fahrenheit (0.8 degree Celsius) around the world since 1880, much of this in recent decades, according to NASA’s Goddard Institute for Space Studies.
  • The rate of warming is increasing. The 20th century’s last two decades were the hottest in 400 years and possibly the warmest for several millennia, according to a number of climate studies. And the United Nations’ Intergovernmental Panel on Climate Change (IPCC) reports that 11 of the past 12 years are among the dozen warmest since 1850.
  • The Arctic is feeling the effects the most. Average temperatures in Alaska, western Canada, and eastern Russia have risen at twice the global average, according to the multinational Arctic Climate Impact Assessment report compiled between 2000 and 2004.
  • Arctic ice is rapidly disappearing, and the region may have its first completely ice-free summer by 2040 or earlier. Polar bears and indigenous cultures are already suffering from the sea-ice loss.
  • Glaciers and mountain snows are rapidly melting—for example, Montana’s Glacier National Park now has only 27 glaciers, versus 150 in 1910. In the Northern Hemisphere, thaws also come a week earlier in spring and freezes begin a week later.
  • Coral reefs, which are highly sensitive to small changes in water temperature, suffered the worst bleaching—or die-off in response to stress—ever recorded in 1998, with some areas seeing bleach rates of 70 percent. Experts expect these sorts of events to increase in frequency and intensity in the next 50 years as sea temperatures rise.
  • An upsurge in the amount of extreme weather events, such as wildfires, heat waves, and strong tropical storms, is also attributed in part to climate change by some experts. [1]

The sad reality regarding the changes abovementioned is that humans are very likely to have caused the same.

  • Industrialization, deforestation, and pollution have greatly increased atmospheric concentrations of water vapor, carbon dioxide, methane, and nitrous oxide, all greenhouse gases that help trap heat near Earth’s surface.
  • Humans are pouring carbon dioxide into the atmosphere much faster than plants and oceans can absorb it.
  • These gases persist in the atmosphere for years, meaning that even if such emissions were eliminated today, it would not immediately stop global warming.
  • Some experts point out that natural cycles in Earth’s orbit can alter the planet’s exposure to sunlight, which may explain the current trend. Earth has indeed experienced warming and cooling cycles roughly every hundred thousand years due to these orbital shifts, but such changes have occurred over the span of several centuries. Today’s changes have taken place over the past hundred years or less.
  • Other recent research has suggested that the effects of variations in the sun’s output are “negligible” as a factor in warming, but other, more complicated solar mechanisms could possibly play a role.[2]

Our country was not spared by the devastation caused by these natural calamities. A month ago, the Philippines was battered by successive super typhoons which meteorologists claimed were the effect of global warming.

In this time of cyber technology and development, can we use these advancements in technology as an instrument to heal Mother Nature or this technology contributes to its further degradation.

II. TOXICITY OF ELECTRONIC DEVICES (E-WASTE)

In today’s fast-moving digital age of high-technology electronic products, the unfortunate by- products are the obsolescent equipment that gets discarded.

One estimate suggests that by 2010, 100m phones and 300m personal computers will be thrown on the rubbish tip.

Most of these contain toxic cocktail of substances including lead, mercury and arsenic.

At the moment a lot of this waste ends up, often illegally, in dumping sites around the globe, especially in the developing world.

Computers and mobile phones contain a large variety of chemicals and plastics which can cause serious harm if not dealt with correctly.

Eric Karofsky from AMR Research advises companies about getting rid of such troublesome waste.

“There are all sorts of problems. These are toxic materials that need to be collected and recycled appropriately.

“If not, they are severe environmental hazards for both the population that lives near landfills as well as the world.”

“Ideally an approved collector will accept it,” Mr Karofsky adds. “They will erase data on the hard drive or destroy it physically.”

He feels that unless companies are punished there will always be computer waste ending up illegally dumped in Africa, India and China.

“Until severe financial penalties are levied upon the brands, these laws will not help much.”

A 2005 study by the environmental group Greenpeace found that as much as 47% of waste found at 18 European seaports was illegal, much of it toxic and headed for export. [3]

This similar predicament is also a reality in the Philippines. Electronic device purchases in the Philippines are increasing despite the dire economic situation. People are buying more computers, mobile phones and electric appliances, as prices are going down and performance improving. However, few are aware of the dangers of electronic waste. [4]

While electronic waste in the Philippines remains low, environmental group Greenpeace warns that the lack of legislation against proper disposal and management of e-waste could have dire effects on the country’s ecology and human health in the future. [5]

The European Union (EU) has already foreseen the impact of the IT industry on the production of e-waste. The EU has signed into law the Waste Electrical and Electronic Equipment Directive” that requires manufacturers, private firms and individuals to properly dispose obsolete electronic equipment.

Different states in the United States have implemented their own e-waste disposal directives with others totally banning electronic devices being thrown in landfills.

Such specific law on e-waste is not available in the Philippines. Even the National Solid Waste Management Commission generally designates electronic garbage as one of the “special garbage” based on the definition of the Ecological Solid Waste Management Act of 2000, the only law the mentions electronic devices. There is also no long-term study made about e-waste in the Philippines. [6]

Due to the lack of proper legislation and take back initiatives from private companies selling computer equipment, Greenpeace Southeast Asia Toxic Waste Campaigner Beau Baconguis said the Philippines could suffer from an e-waste problem in the next five years.

She said the Philippines is also becoming host to many call centers and business process outsourcing companies that purchase and eventually replace computers after three to four years.

Baconguis said they have approached members of the House of Congress several times in the past years to lobby for an electronic waste law.

However, political upheavals and lack of understanding of the environmental issues related to e-waste among lawmakers placed proposed legislations in the backburner, she said. [7]

However, despite the current political and legislative status regarding such initiatives the computer industry is increasingly waking up to the need to control where its products end up when their useful life is over.

III. GREEN COMPUTING [8]

Green computing or green IT, refers to environmentally sustainable computing or IT. It is “the study and practice of designing, manufacturing, using, and disposing of computers, servers, and associated subsystems—such as monitors, printers, storage devices, and networking and communications systems—efficiently and effectively with minimal or no impact on the environment.

Green IT also strives to achieve economic viability and improved system performance and use, while abiding by our social and ethical responsibilities. Thus, green IT includes the dimensions of environmental sustainability, the economics of energy efficiency, and the total cost of ownership, which includes the cost of disposal and recycling. It is the study and practice of using computing resources efficiently.”

With increasing recognition that man-made greenhouse gas emissions are a major contributing factor to global warming, enterprises, governments, and society at large now have an important new agenda: tackling environmental issues and adopting environmentally sound practices. Greening our IT products, applications, services, and practices is both an economic and an environmental imperative, as well as our social responsibility. Therefore, a growing number of IT vendors and users are moving toward green IT and thereby assisting in building a green society and economy.

The goals of green computing are similar to green chemistry; reduce the use of hazardous materials,
maximize energy efficiency during the product’s lifetime, and promote recyclability or biodegradability of defunct products and factory waste.

A number of focus areas and activities were identified as the primary concern for green computing. These are: design for environmental sustainability; energy-efficient computing; power management; data center design, layout, and location; server virtualization; responsible disposal and recycling; regulatory compliance; green metrics, assessment tools, and methodology; environment- related risk mitigation; use of renewable energy sources; and eco-labeling of IT products.

Modern IT systems rely upon a complicated mix of people, networks and hardware; as such, a green computing initiative must be systemic in nature, and address increasingly sophisticated problems.

Elements of such a solution may comprise items such as end user satisfaction, management restructuring, regulatory compliance, disposal of electronic waste, telecommuting, virtualization of server resources, energy use, thin client solutions, and return on investment (ROI).

The imperative for companies to take control of their power consumption, for technology and more generally, therefore remains acute. One of the most effective power management tools available in 2009 may still be simple, plain, common sense.

Below, are the few green computing initiatives being pursued and implemented by various technology developers.

A. Approaches to green computing [9]

a. Algorithmic efficiency

The efficiency of algorithms has an impact on the amount of computer resources required for any given computing function and there are many efficiency trade-offs in writing programs. As computers have become more numerous and the cost of hardware has declined relative to the cost of energy, the energy efficiency and environmental impact of computing systems and programs has received increased attention. A study by Alex Wissner-Gross, a physicist
at Harvard, estimated that the average Google search released 7 grams of carbon dioxide (CO2).

However, Google disputes this figure, arguing instead that a typical search produces only 0.2 grams of CO2. Algorithms can also be used to route data to data centers where electricity is less expensive. MIT, Carnegie Mellon University, and Akamai project up to a 40 percent savings on energy costs.

b. Virtualization

Computer virtualization refers to the abstraction of computer resources, such as the process of running two or more logical computer systems on one set of physical hardware. The concept originated with the IBM mainframe operating systems of the 1960s, but was commercialized for x86-compatible computers only in the 1990s. With virtualization, a system administrator could combine several physical systems into virtual machines on one single, powerful system, thereby unplugging the original hardware and reducing power and cooling consumption. Several commercial companies and open-source projects now offer software packages to enable a transition to virtual computing. Intel Corporation and AMD have also built proprietary virtualization enhancements to the x86 instruction set into each of their CPU product lines, in order to facilitate virtualized computing.

c. Terminal Servers

Terminal servers have also been used in green computing methods. When using terminal servers, users connect to a central server; all of the computing is done at the server level but the end user experiences the operating system. These can be combined with thin clients, which use up to 1/8 the amount of energy of a normal workstation, resulting in a decrease of energy costs and consumption. There has been an increase in using terminal services with thin clients to create virtual labs. Examples of terminal server software include Terminal Services for Windows, the Aqua Connect Terminal Server for Mac, and the Linux Terminal Server Project (LTSP) for the Linux operating system.

d. Power management

The Advanced Configuration and Power Interface (ACPI), an open industry standard, allows an operating system to directly control the power saving aspects of its underlying hardware. This allows a system to automatically turn off components such as monitors and hard drives after set periods of inactivity. In addition, a system may hibernate, where most components (including the CPU and the system RAM) are turned off. ACPI is a successor to an earlier Intel- Microsoft standard called Advanced Power Management, which allows a computer’s BIOS to control power management functions.

Some programs allow the user to manually adjust the voltages supplied to the CPU, which reduces both the amount of heat produced and electricity consumed. This process is called undervolting. Some CPUs can automatically undervolt the processor depending on the workload; this technology is called “SpeedStep” on Intel processors, “PowerNow!”/”Cool’n’Quiet” on AMD chips, LongHaul on VIA CPUs, and LongRun withTransmeta processors.

e. Power supply

Desktop computer power supplies (PSUs) are generally 70–75% efficient, dissipating the remaining energy as heat. An industry initiative called 80 PLUS certifies PSUs that are at least 80% efficient; typically these models are drop-in replacements for older, less efficient PSUs of the same form factor. As of July 20, 2007, all new Energy Star 4.0-certified desktop PSUs must be at least 80% efficient.

f. Storage

Smaller form factor (e.g. 2.5 inch) hard disk drives often consume less power per gigabyte than physically larger drives.

Unlike hard disk drives, solid-state drives store data in flash memory or DRAM. With no moving parts, power consumption may be reduced somewhat for low capacity flash based devices. Even at modest sizes, DRAM-based SSDs may use more power than hard disks, (e.g., 4GB i-RAM uses more power and space than laptop drives). Though most flash based drives are generally slower for writing than hard disks, in a recent case study Fusion-io, manufacturers of the world’s fastest Solid State Storage devices, managed to reduce the carbon footprint and operating costs of MySpace data centers by 80% while increasing performance speeds beyond that which is was attainable by multiple hard disk drives in Raid 0. In response, MySpace was able to permanently retire several of their servers, including all heavy-load servers, further reducing their carbon footprint.

As hard drive prices have fallen, storage farms have tended to increase in capacity to make more data available online. This includes archival and backup data that would formerly have been saved on tape or other offline storage. The increase in online storage has increased power consumption. Reducing the power consumed by large storage arrays, while still providing the benefits of online storage, is a subject of ongoing research.

g. Video Card

A fast GPU may be the largest power consumer in a computer.

Energy efficient display options include:

  • No video card – use a shared terminal, shared thin client, or desktop sharing software if display required.
  • Use motherboard video output – typically low 3D performance and low power.
  • Select a GPU based on average wattage or performance per watt.

h. Display

LCD monitors typically use a cold-cathode fluorescent bulb to provide light for the display. Some newer displays use an array of light-emitting diodes (LEDs) in place of the fluorescent bulb, which reduces the amount of electricity used by the display.

i. Materials recycling

Computer systems that have outlived their particular function can be repurposed, or donated to various charities and non-profit organizations. However, many charities have recently imposed minimum system requirements for donated equipment. Additionally, parts from outdated systems may be salvaged and recycled through certain retail outlets and municipal or private recycling centers.

Recycling computing equipment can keep harmful materials such as lead, mercury, and hexavalent chromium out of landfills, but often computers gathered through recycling drives are shipped to developing countries where environmental standards are less strict than in North America and Europe. The Silicon Valley Toxics Coalition estimates that 80% of the post-consumer e-waste collected for recycling is shipped abroad to countries such as China, India, and Pakistan.

Computing supplies, such as printer cartridges, paper, and batteries may be recycled as well.

j. Telecommuting

Teleconferencing and telepresence technologies are often implemented in green computing initiatives. The advantages are many; increased worker satisfaction, reduction of greenhouse gas emissions related to travel, and increased profit margins as a result of lower overhead costs for office space, heat, lighting, etc. The savings are significant; the average annual energy consumption for U.S. office buildings is over 23 kilowatt hours per square foot, with heat, air conditioning and lighting accounting for 70% of all energy consumed. Other related initiatives, such as hotelling, reduce the square footage per employee as workers reserve space only when they need it. Many types of jobs — sales, consulting, field service — integrate well with this technique.

Voice over IP (VoIP) reduces the telephony wiring infrastructure by sharing the existing Ethernet copper. VoIP and phone extension mobility also made Hot desking and more practical.

IV. CONCLUSION

We are currently living in a fast-paced and challenging times. Products being offered nowadays have convenience of use as a major factor. In order to satisfy convenience, technology is creating and innovating ways to make life simple and within reach for the modern man. However, this progress and development lead to man’s own undoing. Care and nurture of the environment were sacrificed as payment for these. The tell-tale signs are evident. Is it too late for mankind to reverse the effects of the abuses he did?

Through the efforts, concerted and unified, from people of all nations, man can triumphantly overcome this problem. Every people in every nation are requested to be aware in their activities that contribute to global warming. People are told to recycle and reuse. Consciousness regarding waste management is aroused in their minds. As a result, computer companies were also encouraged to contribute to this movement. These companies did not turn a deaf ear to such request. Technology as we know now is developing advances in their field conscious and aware of environmental changes they can offer to save nature.

The Philippines is among the nations which clamor for environmental protection. However, legislation towards this subject has yet to be initiated. Our legislators are pre-occupied with political bickering that, in a way, they forget or neglect this most pressing issue in our midst. Legislation on the regulation and control in the use of cyberspace is an important aspect in today’s human activities.

However, law on the care of the environment is a subject that should take precedence over the latter.

Enforcement of laws involving regulation and control of cyberspace will be ineffectual when, in the future, the only planet, our Mother Earth, will become a desolate and arid wasteland.

Footnotes

[1] Global Warming Fast Facts. http://news.nationalgeographic.com/news/2004/12/1206_041206_global_warming.html

[2] Ibid.

[3] Takatsuki, Yo. Dealing with Toxic Computer Waste. http://news.bbc.co.uk/2/hi/business/6110018.stm

[4] Article by Alexander Villafania from Inquirer.net. Finding reuse for Electronic refuse. http://www.envirocycle‐inc.com/news.php

[5] Villafania, Alexander Inquirer.net. Greenpeace warns of future dangers of e‐waste in RP. http://blogs.inquirer.net/insidescience/2008/07/31/greenpeace‐warns‐of‐future‐dangers‐of‐e‐waste‐in‐
rp/

[6] Article by Alexander Villafania from Inquirer.net. Finding reuse for Electronic refuse. http://www.envirocycle‐inc.com/news.php

[7] Villafania, Alexander Inquirer.net. Greenpeace warns of future dangers of e‐waste in RP. http://blogs.inquirer.net/insidescience/2008/07/31/greenpeace‐warns‐of‐future‐dangers‐of‐e‐waste‐in‐
rp/

[8] Green Computing from Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Green_computing

[9] Ibid.


Author licensed this article under Creative Commons Attribution 3.0 Philippine license

Panong, Hazel Joy: You’ve Just Been YouTubed – Copyright Laws Challenged by Popular Video Site

26/09/2012
SY2009-2010 1st Semester
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INTRODUCTION

“You’ve been YouTubed!”

Access the website http://www.youtube.com and you are almost sure enough to watch your favorite music video, the trailer of your long-expected movie, or a scene from your favorite TV series, in just a click of a button.

Type in your name and you might also see yourself on YouTube!

The emergence of user-generated sites has taken the war against copyright infringement to a higher
level. Unlike traditional battles fought only within the boundaries of a particular land or country, taking down infringing contents is near impossible.

Enter YouTube into the fray and you have one very popular site offering an enticing platform for users to post content for public consumption. YouTube uploads reach hundred thousands per day and it is apparent that a significant percentage of this number involves videos which can be deemed infringing.

This paper shall place the spotlight on how measures are implemented to curtail infringing contents. The paper will see how the Digital Millenium Copyright Act (DMCA) enacted by the United States Congress fares as seen from the eyes of the copyright owners and legal practitioners.

Laws are created to secure the general welfare of the people. It is interesting to see how foreign laws shall tilt the balance in standing up against the phenomena called YouTube.

A. PLAYERS IN THE YOUTUBE BATTLEFIELD

YouTube content can be criticized from the perspective of the copyright holder or the site user.

Copyright holders range from the simple individual content producer to multi-million dollar record companies, film producers, and media organizations. They are required to be the most watchful of the contents of user-generated sites, whether they like it or not. In the Digital Millenium Act (DMCA) of the United States, copyright holders are regarded as the initiators of “take down” actions against infringing content.

Failure by the copyright holder to inform YouTube that a particular video is “infringing” would mean zero action by YouTube to remove that video. The work is cut out for copyright holders who have to review thousands of videos uploaded every day.

The existence of YouTube is ever dependent on its users. These user-generated sites allow access to the public to view content they are interested with. A fan of Michael Jackson can upload any of Jackson’s hits on YouTube and he can be sure that thousands will view the content in a matter of days. YouTube looks like a simple venue for these transactions to take place. Freedom to express one’s interest and share it to the world is the reason why people identify with YouTube so much.

Let it be emphasized that not all YouTube users are abusive and unmindful of copyright laws. It is just that some users recklessly record videos and upload them at YouTube unaware that their content very much breaches the parameters for a copyright-free material. Those “some”-users, unfortunately, upload too many videos than copyright holders can manage.

B. DIGITAL MILLENIUM COPYRIGHT ACT

Pursuant to World Intellectual Property Organization Copyright Treaty, the US Congress enacted the
Digital Millenium Copyright Act which criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works.

The passage of the Digital Millenium Copyright Act gave user-generated content (UGC) sites such as YouTube a “safe haven” to operate without being hampered by complaints from copyright-owners.

This law is seen to answer the concerns of copyright-owners over the tedious job of detecting copyright infringement over the net. Record companies, in order to protect their right for materials they produce, consistently look for alternatives to better apprehend violators.

The February 2009 issue of the ABA Journal Magazine notes the weakness in the DMCA. Since the right to notify UGC sites to “take down” allegedly infringing videos rests with the copyright owners, these people or companies have given out many “take down” notifications. The problem arises when copyright owners do not extensively assess the material to properly classify it as infringing.

During the Beijing Olympic Games in 2008, the International Olympic Committee issued a take-down notice for YouTube to remove videos with the title “Beijing Olympics Opening Ceremony”. Jessica Litman who teaches copyright law at Michigan State University points to this case as an example of copyright owners over-using their capability to take-down infringing content. Upon closer examination of the video, it did not show the actual opening ceremony of the Olympic Games but a protest made by an organization called the Students for a Free Tibet. They were protesting outside the Chinese Consulate at New York City. A larger outcry came from people who criticized the International Olympic Committee for being too vigilant.

Record companies are mostly prone to have their materials “copied” by others. Their products range from simple jingles, to multi-million dollar films. Certainly, the DMCA has given them the power to protect their interests on their work by removing copyright incursions on user-generated sites. Removing an infringing material today does not guarantee that three or more uploads of the same copyrighted material will be available on the web tomorrow, especially if the content has appealed to millions of people around the world. Jefrrey Neuburger, a New York City attorney, notes that the DMCA never saw the possibility of UGC sites would develop and eventually become so popular.

This is why copyright-owners work doubly hard to curve out infringing materials. As more and more videos are uploaded, there is lesser time to really look at them. Based from the Beijing Olympic Games example, scrutiny has become so shallow that the “take down” notice was based solely on the title of the video.

Record companies look to apply technologies to automate process for removing allegedly infringing material. According to United States lawyer Steven Seidenberg, as many as 250,000 clips are uploaded in YouTube every day. Given that one clip is uploaded by one individual, a record company must look into hundreds of thousands of video per day. It is expected that programs that can pinpoint content copied from the original will hasten the work of copyright owners.

Increasing the liability of YouTube and other similar sites is also lobbied for by record companies. These sites that serve as platforms for user-uploaded content say that their users are the ones who are responsible for the presence of infringing material.

Lobbying for tougher laws and stricter measures likewise is a consistent activity for copyright owners. The DMCA stood to balance the interests of record companies and web service providers. There is, however, a seemingly lack of sharper teeth to discourage individuals from uploading content and for service providers to be more proactive in filtering videos in its systems.

DMCA Saves Online Video Site

In the case filed against Veoh, a California-based company which runs an Internet Television service for infringement of copyright, the US District Court for Central California ruled that the site was protected from claims of copyright infringement under the “safe harbor” provision of the Digital Millennium Copyright Act.

A similar decision was ruled by US Southern District Court Judge Louis Stanton for the $1-billion suit filed by Viacom against YouTube. The judge ruled that Viacom cannot seek punitive damages against YouTube.

Philippine TV channel ABS-CBN also sent a notification to YouTube to remove all its copyrighted materials in accordance with the DMCA guidelines. Said law provides for the immunity of the Service Provider, to wit: “Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1))”.

C. YouTube Solves its Dilemma

As a result of lawsuits faced by YouTube for copyright infringement initiated by Viacom, Mediaset and the English Premier League, It introduced an advanced set of copyright policies and content management tools to give rights holders control of their content. These are the (a) Content Verification Tool – this is designed for copyright-holding companies to issue multiple removal requests; (b) Copyright Infringement Notification – It entertains written notices of alleged infringement and responds accordingly; and (c) the Audio ID and Video ID – Identify user-uploaded videos comprised entirely or partially of their content, and choose, in advance, what they want to happen when those videos are found. They can get stats on them or block them from YouTube.

By adapting these tools and in consistent with the provisions of DMCA, YouTube can no longer be held
liable for any infringement activities committed by its subscribers.

D. Conclusion

Media is an entity composed of three powerful mediums: television, radio, and print. Each has its own forte but all contribute towards the delivery of content to the masses. These three mediums know almost no boundaries. They are accessible almost everywhere, anytime at less cost or no cost at all.

Media encountered an evolution in the twenty-first century. The wide-scale growth of the internet has created an information boom. Providing content is not just confined to media entities. Ordinary people with internet access have become content providers themselves.

The internet is the main transport towards the vast expanse of the world wide web. Websites have multiplied over the years. Their capacity to transmit information has also ushered a new wave of issues concerning the morality of the contents and the privacy of parties who form part of the content.

The passage of the Digital Millenium Copyright Act provides ISPs, hosting companies and interactive services immunity for the intellectual property violations of their users. YouTube adopts measures to save its existence by implementing sets of Copyright Tools. The YouTube’s policy to remove copyrighted clips once alerted to their existence is being implemented since then.

As long as YouTube follows the take down notice, it cannot be held liable for any copyright infringement of its users. Indeed, YouTube has found its cloak against infringement liability. Had it not been for the DMCA, the Court would find it impossible to gauge the interests of both copyright owners and users.

YouTube spokesman Ricardo Reyes said “We definitely depend on the safe-harbor provisions.”

References


Author licensed this article under Creative Commons Attribution 3.0 Philippine license

Las Pinas, Roland: Internet Television and the Copyright Laws

26/09/2012
SY2009-2010 1st Semester
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INTRODUCTION:

What do we really mean by the thing known as “Internet Television”? Are Filipinos ready for such thing? How do we react for such new and exciting concept that will change how the Filipino families view the traditional television? By traditional television, I mean the free channels that are readily available to an ordinary television. For those who can afford to pay, they can always avail of the cable television services.

They said that we Filipinos are up-to-date when it comes to modern technology. In fact, it is said that we are the number one people in the world when it comes to the use of the “world wide web” or otherwise known as the internet. But is this really true? In my view, majority of the Filipinos knows how to operate a computer, at the minimum. This is true especially for the young elementary and high school students. We can see that in every corner of the streets in urban cities have internet shops. I am sure that at least, there is an internet café/shop in highly populated rural areas. If one needs a computer, for research work or to chat a relative in abroad, one only needs to go out of his house and there, he can see an internet computer shop. In fact, in some places in Metro Manila, there are internet shops open and operating continuously for twenty-four (24) hours. Moreover, one proof that most Filipinos know how to operate, use and explore a computer was the showing of a “lola” playing Counter-Strike or on-line “rpg” (role-playing game) with her “apo” in the advertisement of Bayan DSL. This only shows that Filipinos, in all age-levels and brackets, are knowledgeable in computers.

I noticed, when I go to an internet café/shop, there are internet users who watch television programs in the You Tube. This is where I thought of the idea that very soon, the ordinary Filipino shall watch his/her favorite television programs via the internet right inside his/her sala or in the tranquility if his room. But how is this going to be possible?

BRIEF HISTORY OF THE INTERNET:

Leonard Kleinrock never imagined Facebook, Twitter or YouTube that day 40 years ago when his team gave birth to what is now taken for granted as the Internet.

On Octobe4 29, 1969, Kleinock led a team that got a computer at UCLA to “talk” at a research institute.

Kleinrock was driven by a certainty that computers were destined to speak to each other and that the resulting network should be as simple to use as telephones.

“I thought it would be computer to computer, not people to people,” Kleinrock said in a nod to online social networking and content sharing that are the hallmarks of the Internet Age.

“I never expected that my 99-year-old mother would be on the Internet like she was until she passed away.”

A key to getting computers to exchange data was breaking digitized information into packets fired between on-demand with no wasting of time, according to Kleinrock.

He had outlined his vision in a 1962 graduate school dissertation published as a book.

“Nobody cared, in particular AT & T,” Kleinock said. “I went to them and they said it wouldn’t work and that even if it worked they didn’t want anything to do with it.”

US telecom colossus AT & T ran lines connecting the computers for ARPANET, a project backed with money from a research arm of the US military.

Engineers began typing “LOG” to log into the distant computer, which crashed after getting the “O.”

“So, the first message was “Lo” as in “Lo and behold”, Kleinrock recounted. “We couldn’t have a better, more succint message.”

Kleinrock’s team logged in on the second try, sending digital data packetsbetween computers on the ARPANET. Computers at two other US universities were added to the network by the end of that year.

Funding came from the US Advanced Research Projects Agency (Arpa) established in 1958 in response to the launch of a Sputnik space flight by what was then the Soviet Union.

Kleinrock’s team ran a 15-foot cable between an Interface Message Processor device referred to by the acronym “IMP” and a ‘host” computer and tested sending data back and forth on September 2, 1969.

“That was the day this baby was born,” Kleinrock said.

The National Science Foundation added a series of super computers to the network in the late 1980’s, opening the on-line community to more scientists.

“The Internet was there, but it was not known to Joe Blow on the street’” Kleinrock said.

The Internet caught the public’s attention in the form of e-mail systems in workplaces and ignited a “dot-com” industry boom that went bust at the turn of the century.

“The original plan was that it should be very creative, basically it should be like a sandbox,” British professor Sir Tim Bernes-Lee said of creating the World Wide Web in 1990.

CONCEPT:

Internet television allows viewers to choose the show or the TV channel they want to watch from a library of shows or from a channel directory. The 2 forms of viewing Internet television are streaming and downloading onto a computer. The video may be broadcast with a peer-to-peer network(P2PTV), which doesn’t rely on a single website’s streaming. It differs from IPTV in that IPTV offerings, while also based on the IP protocol stacks, are typically offered on discrete service provider networks, highly managed to provide guaranteed quality of service and good bandwidth, and usually requiring a special IPTV set-top-box. However, some definitions of IPTV such as that defined by the ITU and the DVB, use the term IPTV as a superset of both ‘managed’ IPTV and Internet TV.

Other names for Internet television:

  • Television on the desktop (TOD)
  • TV over IP – Television over Internet Protocol
  • Vlog For video web logging.
  • Vodcast For video on demand.
  • Web TV (not to be confused with the Microsoft/MSN WebTV service), which refers to original episodic Web television programming
  • Over-the-top TV
  • NET TV (by Philips N.V.)

Methods used for Internet television:

  • Broadcatching For a P2PTV paradigm in use today.This model can save the cost of Internet TV service provider.
  • Streaming from a single website.Technologies used for Internet television: The Hybrid Broadcast Broadband TV (HbbTV) consortium of industry companies (such as SES Astra, Humax, Philips, and ANT Software)is currently promoting and establishing an open European standard (called HbbTV) for hybrid set-top boxes for the reception of broadcast and broadband digital TV and multimedia applications with a single user interface. IPTV/VoD: The open fourth platform

DISCUSSION:

Openly touted as nothing less than a revolution in interactive television, these internet-like services are trying to put a internet-like world on our living screens that any small business or individual can be part of. The trouble is that this “openness” is fools gold and they come with a sting in the tail – they are still fully controlled by the big boys, and they don’t quite share the philosophy that drove the uptake of the internet. Now contrast that with the internet, which is nearing a head-on collision with the world of pay television. In a little over 10 years, it has become the most powerful force of social change ever witnessed on this planet. It has the power to topple governments, create billionaires overnight and offers a virtually free platform for anyone to create and innovate around. The decision by academics at CERN to release their intellectual property to the world is as significant as the US-led HGP openly publishing the human genome. The internet is the great equaliser. Geography and distance have become irrelevant and a world has opened for the human race to collaborate in ways no one could have possibly imagined. It did all that because it was built on a principle of openness and philanthropy. The contrast TV over DSL is simply cable in telco’s clothes – as far as Joe Public is concerned it’s the same service, delivered over copper wiring. The architecture is the same, the content and menus are the same, and the commercial model is the same.
In other words, we can now see the modern technological revolution in our living room. The internet television shall change our traditional means or manner of watching television. If in the traditional way, a person just press a button in the remote control, now, our present television is just like a television cum personal computer. It is just like cable television but the difference is you can do some other things while watching the television like on-line chatting, e-mail, blogging, typing, etc. Our television has now become multi-tasking. But is it not that this only complicated matters for us? Is the ordinary Filipino ready for these ultra modern technology? How about the issue on censorship? Censorship will now become a thing of the past because as they say, there are no more limitations in the internet. Possibilities are endless.. Everything is there. Censorship shall now shift to the parents or the head of the family who shall regulate the use of Internet Television especially concerning the young, family members. So there would be less role for the Movie and Television Regulatory and Classification Board (MTRCB) who will confine itself to the passive audience. How about the programs of the local channels? Like the giant broadcsting networks ABS-CBN, GMA 7, etc. Are they willing to broadcast their soap operas, newscast, telenovelas through the Internet? How about the issues on copyight? Because an individual can actually record the programs in the internet, right? Is it not a person shall violate or infringe on the copyrighted shows of thises networks when one actually record them?

If we are going to bring the underlying power of the internet to TV, let’s charge it up with 100,000 volts and set out to truly change the entire world, instead of whimpering on about whether it will be a good cable substitute. Let’s take the box in the living room and set it on fire, and open it up so anyone can be a BBC. Rome wasn’t built in a day, but let’s set our sights on something much higher – a greater vision that would be difficult to fulfil in our own lifetimes. When you consider what we could do if we liberate ourselves from the chains of monopoly, it’s incredibly exciting. No more walled gardens, no more schedules, and no more limitations. Our current TV platforms all of a sudden look like dinosaurs of a lost age. There are important caveats to such a dreamy utopian scenario in that consumers don’t take to technology like technologists do. The average pub-goer has difficulty coming to terms with programming his old VCR, let alone a shining new interactive set-top box. Sky’s genius is making their platform easy enough to use that your pet could work it. We can’t overpower consumers with gadgets and overwhelm them with content, as it creates awkward barriers to adoption. This is TV, after all, and carpet-bombing people with everything we can find is overkill, as is working on the false assumption that people use televisions like they use PCs. How do you reconcile a free, open platform with a closed, pay TV one? It’s an extremely difficult question that the greatest of minds in the corporate world are struggling with. Not a day goes past without talk of how widely adopted IPTV will be as a 4th platform. Opening up a television platform is a profound step that can’t be considered lightly – other than the technological steps, there are commercial barriers that make it a difficult process. It is television based on a new idea rather than a new infrastructure. The experience of IPTV is a radical change from what we have all known before, as it provides true personalisation and two-way interactivity. Viewing comes through interacting rather than passively sifting through a funnel of unordered material we didn’t opt in for. The nature of on-demand content empowers the viewer and enables true freedom of choice that very few have had before, and the good news is that after the initial learning curve, it’s extraordinarily compelling and easy to sell.

My reaction to this is that internet television has become more personal between the user/viewer and the PC/ television itself. Here, the technology is already available. However, the commercial barrier we talk of here, in my view is the reluctance and/or unwilingness of the business people who shall be affected by the introduction of this new concept to the ordinary Filipino household. Is it their selfishness? Is it the greed for money? Is it to corner all the profits? It is correct to say that the internet television is a new, radical idea. The television design remains the same. It will remain a boob tube. But the manner we shall watch the television shows or the contents thereof is something new. Now, it is no longer just watching a television. The viewer is actually “on-line” while watching. The viewing is more interactive and it is now the viewer who shall dictate and determine what to watch and when he will watch or view the programs/contents. The viewer is no longer the passive person but rather, has an active role in his viewing habits. Menus are web pages that are specially adapted for TV viewing. Is it not exciting? A television with web pages and menu tool bars?

IPTV as technological platform owes much to its formative precedent of streaming video over the web. Typical standards (again unless you use proprietary products like Microsoft Windows Media or On2) revolve around MPEG-4 (all 22 parts), SMIL, real-time streaming protocols like RTP/RTSP, signalling protocols like SAP/SDP, transactional messaging through XML-based web services (SOAP, WSDL, UDDI etc) and distribution systems like multicasting. Today’s IP set-top boxes are more compliant with the latest W3C standards (XHTML 2, CSS 3.0) than web browsers like IE, Firefox, Opera and/or Safari. Asynchronous communications like Web 2.0’s AJAX (Asynchronous Javascript and XML done through the XMLHttpRequest object) has been a staple of the iTV environment for years. Each piece of CPE has a different integration path because of differing hardware, but the most crucial point that underpins all this effort towards interoperation and compatibility is that the IPTV community has learnt from the lessons taught to us by the web and has opted to work within an open framework that tries its best to provide standardised abstraction when it comes to integrating proprietary systems. Using open technology standards is commercially beneficial as it allows innovators to easily cross-train an already enormous pool of developer talent that is available on the market today. Graphic designers need a re-think course to learn about TV display, and developers need to learn TV-specific extensions of middleware and differences between PC and set-top box capabilities. The barriers to building IPTV services are 1000 per cent lower than they are for TV platforms we have today. Almost anyone can set up a demonstration service literally within hours for negligible cost. Adapting existing web applications is incredibly easy as they use the same technologies. Traditional platforms take months of training and testing to build anything the brand owners will accept, and cost a small fortune to even get involved in. Sky noticed it, hence the “Sky Net” service and micropayment mechanisms. To the layman, an IPTV “service” (ie, a set of screens navigated to via an EPG) is technically just a website – it is screens designed in HTML/Javascript stored on a web server that a web browser in a settop box requests and displays. Where it differs is in CRM, payment processing and the richness of multimedia that can be displayed. Real-time DVD-quality video from within in a web application is a developer’s wet dream – one that the likes of YouTube and Google Video have been edging us closer to for some time now. Video ondemand is simply digital video files (AVI, MPG, MOV etc) being streaming over an QoS-enabled IP network using RTP/RTSP, and live video is just another of those streams, with its source set to multicast IP address and controlled with the likes of IGMP. With this kind of technology already freely available to anyone who looks for it, we have the basis of an open TV platform that anyone can develop for – even the weekend hobbyist. Access to that platform needs to be wide open so it is truly available equally to all. Anyone’s IPTV service should be accessible on any IPTV platform by any subscriber anywhere.

PIONEER OF INTERNET TELEVISION:

Indeed, one of the first pioneers of IPTV services in the UK are the academic community. Dozens of universities and colleges already provide high-bandwidth network connectivity to students across multiple campuses that they typically use for trading terabits of illegal music and movies (with Direct Connect, or DC++), when not finishing their assignments. Small ISPs that are involved in specialised, targeted local-loop unbundling are plugging terrestrial TV aerials into their networks and serving up multicast TV and radio over wide area IP networks onto student PCs and into communal living areas.

So we can see that it is really the segment of the youth, especially the students, that were the ones responsible for the popularization of the Internet Television. It originated from the youthful folly of exchanging proscribed materials in the university and avoiding legitimate purchases in stores by pirating music and movie materials.

Anyone should be able to create something that can go on a TV to be shared amongst multiple viewers and if they want to, make money from it in the same way as eBay and PayPal have created an entirely new genre of home business. Subscribing to an IPTV service should offer you a massive and unlimited amount of content that brings as little or as much of the whole world to your living room as you want. The IPTV brands of the future need to concentrate their efforts on making access as widely available as possible and making all this content easy to find and consume. It’s a strange irony that TV as a supposedly mass market medium doesn’t allow that market to contribute and evolve it. Our new worldwide TV platforms have the capability to reverse the conventional broadcasting paradigm. It’s not theirs anymore, it belongs to all of us. The excitement generated by anyone being able to innovate for TV is fuelling the interest in IPTV, and rightly so. As extraordinarily inspiring and amusing it will be to unleash 200 Sky Digital’s, the market couldn’t support it forever, as the battles over broadband testify. The unpalatable immediate future for content providers lies in splintered disparate audiences composed of varying numbers of subscribers – 5,000 here, 40,000 there and so on. These individual subscriber bases will form an aggregated IPTV audience that is not counted by the single brand, but by their demographic profile and the way they consume television, rather than how it is transmitted. It will be possible to go even further and collate sub-audience data for specific genres and programmes that are offered on-demand. ISPs can release personalised services that are entirely designed from a generic template for a single demographic – Asian communities, gay and/or lesbian groups, expats in countries more than 1,000km away and more. But what follows this gentle explosion will be the inevitable and necessary market force of consolidation – as we are seeing with telecoms, small brands will be hoovered up into bundled into larger entities.

The vested interests of dinosaurs and those that work for them would mean they would have you believe that the only type of content that people want is football, movies and sex. Not so. Yes, they are extremely popular, which is why they are so highly fought over, but they are not the be all and end all of television even if the conventional rules of popularity still apply regardless of the technology they operate within. This is the only world these people know. The people that repeat this trite rubbish tend to have very little comprehension of on-demand systems or acceptance of change. IPTV is seen as a serious threat to them so they play the infamous and highly effective FUD game (“fear, uncertainty and doubt”), in order to maintain control and feed precious egos that would suffer should their lack of knowledge come to be known. After the latest movies (which are in short supply and are drip fed), the most popular content for on-demand services are porn, music videos and back catalogue TV programmes. Ask anyone you know what they would watch if they could – the chances are most will say some bizarre bmovie or old TV-series they miss. Just imagine how history would have panned out if Churchill took people’s advice and shut up, or if Bill Gates decided in advance that IBM would never buy his operating system – where we are now is the same situation as there are critics galore claiming they see a bleak future this whole IPTV craze. The best and most revolutionary ideas are defiant and disruptive, and so is the case with IPTV. Creating an open platform is about as defiant and disruptive as you can get, which is why there will be massive resistance until the market forces mean incumbents have to adapt just to survive.

In closing, there are still plenty of possibilities and development in the field of Internet Television in the Philippines. There will come a time that this will just be an ordinary thing in our homes just like a toilet bowl in our bathrooms. In fact, there is already the introduction by the PLDT of it’s “PLDT my DSL WATCHPAD” where the family can watch all the channels and television shows for free. In fact, recently, the concert of the famous rock band U2 was watched over the Internet via the YouTube. It is hoped that there should be no strong resistance from the sector that will be affected by the introduction of this revolutionary stuff to our homes. We all love modern technology especially the internet but there are those who also hate it. As the discussion says, the world belongs to us and not to them.

Imperial, Jonas Luis: The Role of Electronic Warfare in Combating Terrorism in the Philippines

26/09/2012
SY2009-2010 1st Semester
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INTRODUCTION

The concept of Electronic Warfare emerged during World War I. Both the Allied Power and Axis Power utilize the electromagnetic spectrum in order to intercept or jam the communication system of each other. During this war electronic warfare is basically use for intercepting vital information with intelligence value to attain victory in battlefield and this concept is used also for the purpose of deception or deny the enemy from getting access from information and communication system.

When radars a war materiel using electromagnetic spectrum was invented in order to detect warplanes particularly bombers since Air Warfare plays a vital role in achieving victory. Proponents of this type of warfare firmly believed that whoever attains air superiority and control will win the war. During the Battle of Britain, the Luftwaffe (German Air Force) suffered heavy losses from Royal Air Force (British Air Force) since the latter are using the radar effectively in order to detect, pinpoint, and intercept the enemy warplanes which resulted heavy casualties to the German Warplanes particularly German Bombers.

In the Pacific Theatre especially during the Bombing of Pearl Harbor in Hawaii, Japanese Navy Warplanes under the Command Admiral Yamamoto utilized electromagnetic jammer to avoid detection from United States Defense Radar. The United States attained victory in the Pacific since Japanese vital information were intercepted by U.S intelligence using electromagnetic devices that turns the tide of the battle in favor of the Americans particularly in the Battle of Midway, Leyte Gulf, Surigao Strait and Corral Sea.

In the Korean War, military strategist and tactician realized the value and importance electronic warfare since during this period warplanes are using jet engine and war materiel and equipments using electromagnetic spectrum were utilized in this war. The Radar Technology was further developing by both sides, First World Countries (Industrialized and Develop Countries and Communist/ Soviet bloc’s States. US F4’s and F5’s are using sophisticated jet engines and avionics just like their Soviet made MIG’s warplanes counterpart.

Electronic Warfare further improved during the Cold War era when Intercontinental Ballistic Missiles (ICBM’s), long range missiles were, developed by both US and Soviet Military forces for the purpose of deterring attacks since ICBM’s are carrying nuclear warheads. During this era, the focus and priorities of both sides is research, development and utilization of electronic warfare together with nuclear warfare in order to achieve victory.

After the disintegration of the Union Soviet Socialist Republic or Russia (USSR) in 1989, electronic warfare was tested again during the “Operation Desert Storm” in the liberating the State of Kuwait from Iraq’s invasion. US warplanes and Coalition Forces warplanes used electronic gadgets and equipment in order to hit their strategic targets up to the nearest ten meters accuracy thus minimizing collateral damages. Precision Bombing was achieved by the Coalition Forces by utilizing sophisticated war materiel using electromagnetic spectrum.

During also the Kosovo War, United Nations forces particularly North Atlantic Treaty Organization (NATO) warplanes used again the electromagnetic spectrum in order to confuse and deceive the former Yugoslavia’s Air Defense System. Electronic Warfare was primarily used for deception purposes.

In the invasion of Iraq, precision bombing was achieve again by using most modern and sophisticated war equipments as a result collateral damage was further reduced and minimized.

PRESENT SITUATION

After the 9-11 incident (terrorist attack in New York twin tower), United States further realized the importance and value of electronic warfare. Islamic Radicals and Extremist shifted the warfare in other dimension knowingly that they cannot defeat the superior and powerful forces of US in conventional battlefield. The concept of Asymmetric Warfare emerges since the warfare is not fought in conventional manner anymore. Islamic Radicals organizations particularly those funded by Saudi Arabian Billionaire Osama Bin Laden shifted the battlefield in another dimension that resorted to terrorism to instill fear and terror in the hearts and mind of the populace of United States, France, United Kingdom and countries which supported US.

Bin Laden organized loosely terrorist cells/groups as long as it is capable of achieving its objectives thus the concept of “Spaghetti Organization” emerges, organizations being loosely managed and control as long as it is capable of accomplishing its objectives and purpose. This concept was introduced by Bin Laden so that his location will not be pinpointed by United States Intelligence particularly the Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI).

Electronic Warfare plays vital role in order to deter, detect and preempt terroristic attacks and atrocities against innocent and helpless populace. In Southeast Asia Region, US intelligence reports confirms that Bin Laden financed and funded terrorist cells/groups operating in the mentioned region. Indonesian JI which is responsible in Bali Bombing in Indonesia which killed and injured hundreds of people.

In the Philippines, the Abu Sayyaf Group (ASG), a Muslim radical and extremist group operating in Southern Philippines especially in Basilan and Sulo province are being funded and financed by Bin Laden according to US Intelligence reports. United States Intelligence experts and analyst firmly believe that the ASG was able to get funds from Bin Laden through bogus International Islamic Civic Organizations donating funds for the development in Mindanao. The ASG conducted terroristic attacks directed against the local populace like the Rizal Day LRT bombing in the year 2000, the Super ferry Commercial Vessel Bombing and Valentine’s Day public transport Bombing in the year 2004. Likewise the Dos Palmas kidnapping incident in which the Philippines was embarrassed in the International Community since United States Nationals are one of the victims in this humiliating incidence were perpetrated by ASG under the command of Khadafy Janjalani. Series of kidnappings and bombings were conducted by this fundamentalist and extremist Islamic group further place the Philippines in the international limelight since in the eyes of the international community the war against terrorism of the Philippine Government is futile.

The Armed Forces of the Philippines (AFP) intensifies its campaign against terrorism by conducting special and conventional military operations as a response of the order of the President of Philippines being the Commander In Chief of the Armed Forces and Philippine National Police.

The War against Terrorism produced positive results to some extent since key Abu Sayyaf Leaders were killed and neutralized among this are Khadafy Janjalani, Abu Sabaya, ASG’s spokesman, Al- Gozi, an Indonesian suspected JI, and Mujib Susukan. Galib Andang alias KUMANDER Robot was captured, however he was killed by the combined elements of Regional Special Action Unit (RSAU) and Special Action Force (SAF) of Philippine National Police in Camp Bagong Diwa,Bicutan, Taguig City in a bloody jail breaking incident when he and his fellow inmates attempt to escape from the detention center by killing and wounding the jail guards.

The operations of the Armed Forces and Philippine National Police yielded somewhat positive results since electronic warfare plays a vital role in the conduct of military operations directed against the ASG. Electronic warfare were instrumental in campaign against terrorism in the sense that ASG’s camps and safe houses were pinpointed and ASG’s terroristic plans were detected and preempted to some extent. Several ASG members were also killed and captured by using human intelligence back up with electronic warfare.

On the other hand the ASG uses the cyber space in making their propaganda and recruitment. In fact ASG has several websites in for propaganda and recruitment purposes. This Islamic Extremist Groups are recruiting openly by using the internet. ASG are utilizing this medium in order to encourage someone to join their group. Likewise propaganda is also carried via the internet medium since propaganda information is being disseminated by using the cyber space.

Legal Situation

To further more effective on war against terrorism, the Philippine Legislature (House of Representatives and Upper House, Senate) during the thirteenth Congress enacted the Human Security Act of 2007. The main objective of this law is to secure the State and protect the people from terrorism this particular Republic Act punishes the crime of terrorism since there is no crime of terrorism under the Revised Penal Code.

Section 2 of Republic Act 9372 under the Declaration of Policy states that “It is declared a policy of the state to protect life, liberty, and property from the acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of our country and to the welfare of the people, and to make terrorism a crime against Filipino People, against humanity, and against the law of nations.” In order to be more effective in fighting terrorism, the crime of terrorism is placed with the same category of the crime of piracy which is considered crime against humanity and law of nations.

Section 4 also provides a provision for the crime of conspiracy to commit terrorism which expressly provides that “there is a conspiracy to commit terrorism when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in section 8 hereof and decide to commit the same.” Just like the crime of treason and rebellion in which the existence and survival of the state is at stake, conspiracy to commit terrorism is already a crime and it is punishable by forty years imprisonment.

Section 7 also provides for the surveillance of suspects and interception and recording of communications in relation to RA 4200 otherwise known as the Anti Wire Tapping Law.

Section 8 of this law expressly provides that “the written order of the authorizing division of the Court of Appeals to crack down, tap, listen to, , intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing Division of the Court of Appeals upon ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti- Terrorism Council created in Section 58 of this Act to file such ex parte applications and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or about to be committed, (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence which is essential to the conviction of any charged, or suspected person for or to the solution or prevention of any such crimes, will be obtained and, (c) that there is no other effective means readily available for acquiring such evidence.”

Section 9 and 10 provides for the classification and contents of the order of the courts and the affective period of Judicial Authorization respectively.

Section 13 provides that “the sealed envelope or sealed package and the contents thereof, which are deposited with the authorizing division of the Court of Appeals shall be deemed and hereby declared classified information and the sealed envelope or sealed package shall not be opened and its contents including the tapes. Discs and recordings and all the excerpts and summaries thereof and the notes and memoranda made in connection therewith shall not be divulged. authorizing division of the Court of Appeals which written order shall be granted only upon a written application of the Department of Justice filed before the authorizing Division of the Court of Appeals and only upon a showing that the Department of Justice has been duly authorized in writing by the Anti-Terrorism Council to file the application with proper written notice the person whose conversation, communication, message discussion or spoken or written words have been the subject of surveillance, monitoring, recording and interception to open, reveal, divulge and use the contents of the sealed envelope or sealed package as evidence.”

Section 14 and 15 provides for the application to open deposited sealed envelope or sealed package and evidentiary value of deposited materials respectively.

Section 18 expressly provides that “ the provisions of Article 15 of the Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel who, having been duly authorized in writing by the Anti-Terrorism Council has been taken custody of a person charged with or suspected of the crime of terrorism or the crime to commit terrorism shall without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authority, deliver said charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police or law enforcement personnel.”

Likewise the Human Security Act of 2007 expressly provides for the punishments and sanctions for violations of the provisions of this law committed by the police and law enforcement personnel in order to safeguard and protect the constitutional rights of the people particularly the right against unreasonable searches and seizures and the right to communication/correspondence and privacy.

Also the applicable laws to be considered in the role of electronic warfare in war against terrorism are the Anti- Wire Tapping Law (RA 4200), Electronic Commerce Act (RA 8792) particularly Section 33 (a) regarding hacking or cracking, Anti-Money Laundering Law and Electronic Evidence Law.

IMPLICATION

Electronic Warfare plays an important role in war against terrorism, however in order to implement this strategy effectively and efficiently, the constitutional rights of the people must be safeguarded and protected at all times. Considering the vast resources of the State as compared against the ordinary people particularly the law enforcement agency of the government especially the Philippine National Police, Armed Forces of the Philippines and National Bureau of Investigation and prosecuting agency which is the National Prosecution Service of the Department of Justice. In order to preempt or prevent the possible abuse by the State, several provisions in RA 9372 that will serve as safety nets were crafted by our law makers.

Section 18 provides for the maximum period of detention without Judicial Warrant which is three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police or law enforcement personnel.

Section 20 provides for the penalty for failure to deliver suspect to the proper Judicial Authority within three days which is from 10 years and 1 day to 12 years imprisonment.

Section 21 provides for the rights custodial investigation of a person charged with or suspected of terrorism or the crime of conspiracy to commit terrorism.

Section 22 expressly provides for the penalty for violating the rights under custodial investigation of a person charged with or suspected of terrorism or the crime of conspiracy to commit terrorism committed by police or law enforcement personnel which is from 10 years and 1 day to 12 years imprisonment.

Section 24 states that “no threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure on the detained person, which shall vitiate his free will, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism and testimony gathered will be absolutely not admissible and usable as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.”

Section 25 provides that “any person or persons who use threat, intimidation, or coercion, or who inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free will of a charged or suspected person under investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism, shall be guilty of an offense and shall suffer the penalty of 12 years and 1 day to 20 years of imprisonment.” The same penalty is imposed when death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction of him of such mental, moral, or psychological pressure.”

Also the right to communication and correspondence, right to travel and abode, and the right to privacy of the people must be considered in war against terrorism using the concept of electronic warfare.

CONCLUSION

Electronic plays a vital role in war against terrorism, however it must be within the legal framework in order to safeguard and protect the constitutional rights of the people otherwise the Philippines will be considered as police or totalitarian state by the international community. Respect for human rights and human dignity must be taken into consideration by police and law enforcement personnel.

Grageda, Joanna Mayelle: May a Domain Name be Subject of Libel?

26/09/2012
SY2009-2010 1st Semester
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I was a victim of libel through internet. A certain guy who happened to be my former friend posted a very libelous statement in my Friendster account. My friend called me up and informed me about the libelous comment. I panicked and hurriedly looked for an available computer. There, I read his comment. Not only that, he also posted the same libelous article in his bulletin board message which indicated his clear intention to publish it. I felt shocked and degraded. The feeling is that it is as if someone raped me. I suffered sleepless nights and severe mental anguish. I filed a case against him for Libel and is now ongoing in the Quezon City Hall. The problem is that he never showed up. But despite of it, I am eager to make him suffer the consequences of his act. Since then I have been empathizing on the people who are also victims of libel.

Under the Revised Penal Code Libel is categorized as Crimes against Honor. It is defined as a public imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Publication of a malicious article is an important requirement for libel case to prosper. The word Publish means to make known or to circulate. Article 359 0f the Revised Penal Code provides for the requirements for publicity of Libel and states that:

Art. 354. Requirements for publicity- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, relative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

The law points out the importance of publication. I have proven that internet libel indeed exists and it can prosper after the establishment of the proper requisites. But what if it is the domain name itself which is libelous? Will it fall under the meaning of an article which can be subject to publication?

For better understanding, we have to take into the consideration the brief explanation of what a domain name is. According to the Webopedia, a domain name is a name that identifies one or more IP addresses. For example, the domain name microsoft.com represents about a dozen IP addresses. Domain names are used in URLs to identify particular Webpages. For example, in the URL http://www.pcwebopedia.com/index.html, the domain name is pcwebopedia.com.

Every domain name has a suffix that indicates which top level domain (TLD) it belongs to. There are only a limited number of such domains. For example:

  • ·gov – Government agencies
  • ·edu – Educational institutions
  • ·org – Organizations (nonprofit)
  • ·mil – Military
  • ·com – commercial business
  • ·net – Network organizations
  • ·ca – Canada
  • ·th – Thailand

Because the Internet is based on IP addresses, not domain names, every Web server requires a Domain Name System (DNS) server to translate domain names into IP addresses.

Gleaning to the law itself and understanding the meaning of libel and requirements for publication and after taking a look at the brief domain name explanation, my answers to the questions would be in the positive. Prior to the existence of computers people have been using the newspaper of general circulation or any other writings or printed document as means of committing libel. But now, with the passage of E-commerce law, libel may now be committed using the internet.

The domain name is used by people in order to get into a certain web page. It is uniquely created for easy access and viewing of the contents of a certain individual, group, association or any other entity’s business proposals, bibliography etc. When an individual created a defamatory domain name it is equivalent into publication for the simple reason of making it available to the public. Meaning anyone can easily use it as a reference.

An example of a URL with a defamatory domain name is http://www.pokpoksi******.com wherein the domain name is pokpoksi******.com. Such webpage with defamatory domain name need not contain any offensive images, videos or article against ******. The domain name itself constitutes libel.

The requisites of libel are:

1. There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance;

2. The imputation must be made publicly;

3. It must be malicious;

4. The imputation must be directed to a natural or juridical person, or one who is dead;

5. the imputation must tend to cause the dishonor, discredit or contempt of the person defamed

The first requisite is present in the given example. The mere fact of creating such defamatory domain name constitutes an imputation of a crime, or of a vice or defect, real or imginary, or ANY ACT, OMISSION, CONDITION, STATUS OR CIRCUMSTANCE. Upon creation, the culprit has in his mind the intention to defame and degrade the reputation of ****** and such willful act is strictly punishable under the law.

Anent the second requisite, it was indeed created for the public. At the pain of being repetitive, a domain name is used to identify particular web pages. The domain name can be used by anyone who wishes to view a certain web page. It is presumably created for the enjoyment of everyone. ******, being a very popular Filipina actress has made herself available and an icon to the public and almost 90 percent of the country’s population knows her.

The third requisite is malice. According to the book of Luis B. Reyes, malice is of two kinds which are MALICE IN FACT and MALICE IN LAW. Malice in fact is the law which presumes from every statement whose tenor is defamatory. It does not need proof. The mere fact of utterance or statement is defamatory negates a legal presumption of malice. If the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even without proof. This kind of malice requires evidence.

Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory utterance made with good motives and justifiable ends or by the fact that the utterance was privileged in character.

The kind of malice that is present in the given example is malice in fact which does not require proof. It is enough that the defamatory statement be offered and presented in court and it is up to the magistrate to declare whether or not such statement is defamatory, Simply put, the existence of defamation rests upon the sound discretion of the court after the prosecution laid down its cards without exerting so much effort on the pieces of evidence to prove malice.

The fourth requisite is that the imputation must be directed to a natural or juridical person, or one who is dead. This requisite is directed not only to natural persons but even to juridical or dead person. In addition to the involvement of dead person, the imputation must also blacken his memory. This is because one who is dead cannot protect himself from the pains of being a victim of libel so the State affords him equal protection in order to protect his honor.

In the case of Newsweek vs. IAC, the Supreme Court ranted the motion to quash the complain on the ground that the facts alleged do not constitute an offense since there is no definite person/persons dishonored the crime of libel or slander is a crime against honor such that the person/s dishonored must be unidentifiable even by innuendoes: otherwise the crime against honor is not committed.

The creation of the domain name pokpoksi******.com certainly was with apparent malice and pertaining to a very identifiable person ******. Accordingly, the person defame need not be expressly identified. It is enough that such person could be possibly identified. As a matter of fact, compliment which is undeserved may constitute libel.

As to the fifth requisite that the imputation must tend to cause the dishonor, discredit or contempt of the person defamed. The word “pokpok” is a Filipino tagline pertaining to a Filipina slut. The exact meaning of it cannot be found in the dictionaries because the term was actually created through Filipino traits and culture which has its own meaning right after its creation. A slut is one who engages into sexual activities with different men with or without compensation. ******, being legally married to a well-respected Senator, a mother of three girls and a grand slam actress who has been available to the public eye since she was a kid has definitely an image to protect and honor deserving of high respects. The defamatory domain name does not only cast dishonor to her reputation but also to her whole family as well.

From the definition of libel under the Revised Penal Code, the law does not only confine libel to the creation of articles. The law also states under Article 355.Libel by means of Writings or Similar Means:

A libel may be committed by means of-

1. writing
2. printing
3. lithography
4. engraving
5. Radio;
6. Photograph;
7. painting;
8. theatrical exhibition;
9. cinematographic exhibition; or
10. Any other similar means.

The creation of defamatory statement using a domain name falls under number ten which is any other similar means. The domain name pokpoksi******.com has a complete thought and can easily be comprehended by people especially the Filipinos. Since it has a complete thought, it forms part of a statement which is capable of destroying one’s reputation by without the need of exerting so much effort to understand the meaning of it. That alone possesses power to degrade someone’s person. It need not be an article which is usually written and published in the general circulation in order to be libelous. The law only requires the presence of the above-mentioned requisites. Applying the statutory construction, where the law does not distinguish, we must not distinguish.

Deviating from the traditional means of committing libel which is through newspapers of general circulation or any other similar means, we now look at the definition of computer to be able to understand how it can also be means of committing libel.

Section 1 paragraph (e) of the Electronic Rules on Evidence refers to computer as to any single or interconnected device or apparatus, which, by electronic, eletromechanical, or magnetic impulse, or by any other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions.

Section 2 of the same Rule provides for the admissibility of the said electronic document which states that the evidence is admissible if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.

These Rules on Electronic Evidence are the bases for the libel case through internet. It also encompasses the wide range of media, telephone communications and cell phone companies. As a matter of fact, even a defamatory text message can be the subject of libel. This is simply because these means affect the lives of people by relying on them for easy communication which is adopted by our community as part of our everyday routines.

In other countries like the United States, one of the defenses of libel is the truth and veracity of the imputation but in our law, the defense of truth and veracity of the imputation cannot be accepted except when:

1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer;

2. When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided if it is related to the discharge of his official duties.

The domain name pokpoksi******.com is not an act or omission which is constitutive of a crime neither is she a government employee acting within the discharge of her office. She is simply a mother, a wife and an individual who works in the entertainment world to help sustain her family’s needs. In the absence of proof that such domain name falls under the exceptions, the defense as to the truth and veracity of the imputation cannot be admitted as evidence and be used as a defense.

According to one of the well-respected Professor and Dean Ortega:

‘Even if what was imputed is true, the crime of libel is committed unless one acted with good motives or justifiable end. Proof of truth of a defamatory imputation is not even admissible in evidence, unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty. Other than these, the imputation is not admissible.’

Hence, there is no other way of admitting the admissibility of such imputation unless it falls within the two exceptions provided for by law. These defenses also require three requisites which are:

1. If it appears that the matter charged as libelous is true;
2. It was published with good motives;
3. It was for justifiable ends.

These requisites must be present in the defenses for libel. It requires strict compliance because of the danger of the crime and the damage that it may cause the offended party. A domain name may not be an article which is susceptible of being published in the normal course of committing libel but it is definitely a means of imputation which is prosecuted under the Philippine law.

The law now accepts the fact that our country is rapidly changing with the world and with the existence, advantage and disadvantages of electronic devices, we have to deal with the improvements as well as the consequences of such accordingly. The usage of domain name is necessary for without which, one cannot access a certain web page and the creator cannot restrict its usage to certain classes of persons, society, community or entity.

Hence, the domain name indeed is libelous if all the requisites of libel are present. Since it is used as a means to access the different web pages, it is susceptible of being published and made publicly. It need not be in a paragraph form. The means used is immaterial as long as the statement can cast dishonor to an identifiable person and is made known to the public through publication without the intention of publishing it with good motives, the matter charged as libelous does not impute an act or omission which constitutes as a crime and was made without justifiable ends.

I believe that libel must be dealt with severely. As a woman who had been a victim and suffered the damages of libel through internet, I know what damage it can cause to an individual especially to his/her family. To distinguish one means of committing libel from another would open the way for prospective libelous remarks thus defeating the ends of justice.

Garcia, Katrina: Net Neutrality

26/09/2012
SY2009-2010 1st Semester
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Network neutrality is the principle that Internet users should be in control of what content they view and what applications they use on the Internet. The Internet has operated according to this neutrality principle since its earliest days. Indeed, it is this neutrality that has allowed many companies, to launch, grow, and innovate. Fundamentally, net neutrality is about equal access to the Internet. In our view, the broadband carriers should not be permitted to use their market power to discriminate against competing applications or content. Just as telephone companies are not permitted to tell consumers who they can call or what they can say, broadband carriers should not be allowed to use their market power to control activity online. Today, the neutrality of the Internet is at stake as the broadband carriers want Congress’s permission to determine what content gets to you first and fastest. Put simply, this would fundamentally alter the openness of the Internet or rather Allowing broadband carriers to control what people see and do online would fundamentally undermine the principles that have made the Internet such a success. The neutral communications medium is essential to our society. It is the basis of a fair competitive market economy. It is the basis of democracy, by which a community should decide what to do. It is the basis of science, by which humankind should decide what is true. Let us protect the neutrality of the net.

“Network Neutrality” is the idea that Internet access providers should not discriminate with regard to what applications an individual can use, or the content an individual can upload, download, or interacted with over the network. Individuals acquiring services from Internet access providers should be able to use the applications and devices of their choice, and interact with the content of their choice anywhere on the Internet. The concept of “Network Neutrality” is essentially traditional Common Carriage. Common carriers are carriers of goods, people, and information such as trains, planes, buses, and telephone companies. They can not discriminate with regard to what they carry or where they carry it. Common carriage embodies the ideal that the efficient movement of goods and information is essential to our economy, our culture, and our nation, and therefore carriers must not discriminate or favor particular content or individuals. Smithsonian (“Throughout the remainder of the nineteenth century the telegraph became one of the most important factors in the development of social and commercial life of America.”) NSFNET Final Report (1995) p. 4 (“Infrastructures, for purposes such as transportation and communication, have long been vital to national welfare. They knit together a country’s economy by facilitating the movement of people, products, services, and ideas, and play important roles in national security.”)[Odlyzko Efficiency and Fairness 2009 48 (contrasting NN to railroad and telephone common carrier policy)

Telecommunication carriers (those communications carriers that transport information back and forth) are one type of common carriers and have been classified as such for 100 years. This status was essentially inherited from telegraph companies. Forty years ago, the FCC initiated the Computer Inquiries which established the telephone network as an open platform over which computer networks could be constructed. The FCC also resolved the Carterfone proceeding, holding that individuals could attach devices (ie, faxes, modems) of their choice to the telephone network. These proceedings created an environment where any computer network could be constructed for any purpose and go anywhere.

Computer networks which are provisioned over telecommunications services, and in particular, Internet service providers, were classified as Information Services and did not have telecommunications regulations imposed upon them. Because these ISPs were interstate networks, they fell under the jurisdiction of the FCC and not state public utility commissions. ISPs hold the same role as telegraph and telephone carriers, carrying information central or critical to our society and nation.

This policy moved from the dial-up world to the broadband world. However, when the Internet moved from the dial-up world to the broadband world, it moved from something that was done over the common carrier network, to being the network. The question posed was whether, with this metamorphosis from some thing over the network, to being the network, the Internet would take on the common carrier status.

Advocates argued that cable modem service and DSL should be classified as telecommunications carriers so that the Computer Inquiries would apply. This is also known as the Open Access debate. Here the FCC policy of an open communications carrier shifted dramatically; the underlying communications network had always been a common carrier for 150 years. But when broadband Internet became the underlying network, the concept of common carriage was eliminated. The FCC concluded that these new communications networks were “information services” which did not need to be shared, did not fall under the Computer Inquiries, and did not fall under the non-discrimination provisions of title II of the Communications Act. This is a move from an Internet access service classified as an information service provisioned over a telecommunications network classified as a common carrier – to a network where the whole thing top to bottom is an unregulated information service.Generally, common carriers are not liable for damage caused by what they carry – for example, a train that transported Al Capone would not normally be an accessory to his criminal acts. With the advent of the commodity Internet, Internet service providers have been immune from liability for the content which they carry – just like common carriers.

While the term “network neutrality” may be new – the concept has a long history.

Principle:

Network neutrality (also net neutrality, Internet neutrality) is a principle proposed for residential broadband networks and potentially for all networks. A neutral broadband network is one that is free of restrictions on content, sites, or platforms, on the kinds of equipment that may be attached, and on the modes of communication allowed, as well as one where communication is not unreasonably degraded by other communication streams. The principle states that if a given user pays for a certain level of internet access, and another user pays for a given level of access, that the two users should be able to connect to each other at that given rate of access.Though the term did not enter popular use until several years later, since the early 2000s advocates of net neutrality and associated rules have raised concerns about the ability of broadband providers to use their last mile infrastructure to block Internet applications and content (e.g. websites, services, protocols); particularly those of competitors. In the US particularly, but elsewhere as well, the possibility of regulations designed to mandate the neutrality of the Internet has been subject to fierce debate.Neutrality proponents claim that telecom companies seek to impose a tiered service model in order to control the pipeline and thereby remove competition, create artificial scarcity, and oblige subscribers to buy their otherwise uncompetitive services. Many believe net neutrality to be primarily important as a preservation of current freedoms. Vinton Cerf, co-inventor of the Internet Protocol, Tim Berners-Lee, creator of the web, and many others have spoken out strongly in favor of network neutrality.Opponents of net neutrality include large hardware companies and members of the cable and telecommunications industries. Critics characterised net neutrality regulation as “a solution in search of a problem”, arguing that broadband service providers have no plans to block content or degrade network performance. In spite of this claim, certain Internet service providers (such as Comcast) have intentionally slowed peer-to-peer (P2P) communications. Others have done exactly the opposite of what Telecom spokespersons claim and have begun to use deep packet inspection to discriminate against P2P, FTP and online games, instituting a cell-phone style billing system of overages, free-to-telecom “value added” services, and anti-competitive tying (“bundling”). Critics also argue that data discrimination of some kinds, particularly to guarantee quality of service, is not problematic, but highly desirable. Bob Kahn, Internet Protocol’s co-inventor, has called “net neutrality” a slogan, and states that he opposes establishing it, warning that “nothing interesting can happen inside the net” if it passes: “If the goal is to encourage people to build new capabilities, then the party that takes the lead in building that new capability, is probably only going to have it on their net to start with and it is probably not going to be on anybody else’s net.” However, he also said “by virtue of doing that, you tend to fragment the net. And anything that will tend to fragment the net I’m opposed to, provided it’s not an incremental evolution of a new technology that’s happening.”Network neutrality is the principle that Internet users should be in control of what content they view and what applications they use on the Internet. The Internet has operated according to this neutrality principle since its earliest days… Fundamentally, net neutrality is about equal access to the Internet. In our view, the broadband carriers should not be permitted to use their market power to discriminate against competing applications or content. Just as telephone companies are not permitted to tell consumers who they can call or what they can say, broadband carriers should not be allowed to use their market power to control activity online.

Definition of NET NEUTRALITY:

Neutrality is the principle that all Internet traffic should be treated equally. Net neutrality advocates have established three principal definitions of network neutrality: Net Neutrality means no discrimination. Net Neutrality prevents Internet providers from blocking, speeding up or slowing down Web content based on its source, ownership or destination.

Three Principal definitions of network neutrality:

Absolute non-discrimination – “Network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally.” Or that a neutral Internet must forward packets on a first-come, first served basis, without regard for quality-of-service considerations.

Limited discrimination without QoS tiering – United States lawmakers have introduced bills that would allow quality of service discrimination as long as no special fee is charged for higher-quality service.

Limited discrimination and tiering – This approach allows higher fees for QoS as long as there is no exclusivity in service contracts. Ex. “If I pay to connect to the Net with a given quality of service, and you pay to connect to the net with the same or higher quality of service, then you and I can communicate across the net, with that quality of service.” “[We] each pay to connect to the Net, but no one can pay for exclusive access to me.”

Development of the Concept of NET NEUTRALITY:

Tim Wu, a professor at Columbia Law School, published and popularized a proposal for a net neutrality rule, in his paper Network Neutrality, Broadband Discrimination. The paper considered network neutrality in terms of neutrality between applications, as well as neutrality between data and QoS-sensitive traffic, and proposed some legislation to potentially deal with these issues. Throughout 2005 and 2006 network neutrality and the future of the Internet was debated by cable companies, consumers and Internet service providers (ISPs), although the issue was almost completely ignored by the media until 2006. The concept of network neutrality predates the current Internet focused debate, existing since the age of the telegraph. In 1860, a US federal law was passed to subsidize a telegraph line, stating that:messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception, excepting that the dispatches of the government shall have priority …

An act to facilitate communication between the Atlantic and Pacific states by electric telegraph, June 16, 1860

In 1888, Almon Brown Strowger invented an automatic telephone exchange to bypass non-neutral telephone operators who redirected calls for profit.

Arguments for network neutrality are the following:

Control of data- Supporters of network neutrality want a legal mandate ensuring that cable companies allow Internet service providers (ISPs) free access to their cable lines, which is called a common carriage agreement, and the model used for dial-up Internet. They want to ensure that cable companies cannot screen, interrupt or filter Internet content without court order. Allowing broadband carriers to control what people see and do online would fundamentally undermine the principles that have made the Internet such a success.

Digital rights and freedoms-Net neutrality ensures that the Internet remains a free and open technology, fostering, amongst others, democratic communication.

Competition and innovation- Net neutrality advocates argue that allowing cable companies, or what is termed “content gatekeepers”, to demand a toll to guarantee quality or premium delivery would create what Tim Wu calls “the Tony Soprano business model”. Advocates warn that by charging “every Web site, from the smallest blogger to Google”, network owners would earn huge profits and would be able to block competitor Web sites and services, as well as refuse access to those unable to pay. According to Tim Wu cable companies plan to “carve off bandwidth” for their own television services and to charge companies a toll for “priority” service. Proponents of net neutrality argue that allowing for preferential treatment of Internet traffic, or tiered service, would put newer online companies at a disadvantage and slow innovation in online services. Tim Wu argues that without network neutrality the Internet would undergo a transformation from a market “where innovation rules to one where deal-making rules.” SaveTheInternet.com argues that net neutrality creates an “even playing field” and that “the Internet has always been driven by innovation. Web sites and services succeeded or failed on their own merit.”

Without net neutrality, the Internet would start to look like cable TV. A handful of massive companies would control access and distribution of content, deciding what you get to see and how much it costs. Major industries such as health care, finance, retailing and gambling would face huge tariffs for fast, secure Internet use … Most of the great innovators in the history of the Internet started out in their garages with great ideas and little capital. This is no accident. Network neutrality protections minimized control by the network owners, maximized competition and invited outsiders in to innovate. Net neutrality guaranteed a free and competitive market for Internet content.

Preserving Internet standards- Numerous commentors have cautioned that authorizing incumbent network providers to override the separation of the transport and application layers of the Internet signals the end of the authority of the fundamental Internet standards and indeed, of the standards-making processes for the Internet themselves.

Advocates of network neutrality observe that any practice that shapes the transmission of bits in the transport layer based on application designs will undermine the design for flexibility of the transport.

Preventing pseudo-services- any violations to network neutrality would realistically not involve genuine investment but rather the provision of pseudo-services which amount to bribes or extortion. He argues that it’s extremely unlikely new investment will be made to lay special networks for particular websites to actually reach end-users faster, but rather that violations to net neutrality will involve using quality of service in an artificial way to essentially extract bribes from websites to avoid being slowed down.

End-to-end principle- Network neutrality is needed in order to maintain the end-to-end principle

End to end Principle- it is one of the central design principles of the Internet and is implemented in the design of the underlying methods and protocols in the Internet Protocol Suite. It is also used in other distributed systems. The principle states that, whenever possible, communications protocol operations should be defined to occur at the end-points of a communications system, or as close as possible to the resource being controlled.

According to the end-to-end principle, protocol features are only justified in the lower layers of a system if they are a performance optimization, hence, Transmission Control Protocol (TCP) retransmission for reliability is still justified, but efforts to improve TCP reliability should stop after peak performance has been reached.

Examples- In the Internet Protocol Suite, the Internet Protocol is a simple (“dumb”), stateless protocol that moves datagrams across the network, and TCP is a smart transport protocol providing error detection, retransmission, congestion control, and flow control end-to-end. The network itself (the routers) needs only to support the simple, lightweight IP; the endpoints run the heavier TCP on top of it when needed.

A second canonical example is that of file transfer. Every reliable file transfer protocol and file transfer program should contain a checksum, which is validated only after everything has been successfully stored on disk. Disk errors, router errors, and file transfer software errors make an end-to-end checksum necessary. Therefore, there is a limit to how secure TCP checksum should be, because it has to be reimplemented for any robust end-to-end application to be secure.

A third example (not from the original paper) is the EtherType field of Ethernet. An Ethernet frame does not attempt to provide interpretation for the 16 bits of type in an original Ethernet packet. To add special interpretation to some of these bits, would reduce the total number of Ethertypes, hurting the scalability of higher layer protocols, i.e. all higher layer protocols would pay a price for the benefit of just a few. Attempts to add elaborate interpretation (e.g. IEEE 802 SSAP/DSAP) have generally been ignored by most network designs, which follow the end-to-end principle.

Arguments against network neutrality are the following:

Innovation and investment- Prioritisation of bandwidth is necessary for future innovation on the Internet. Telecommunications providers such as telephone and cable companies, and some technology companies that supply networking gear, argue telecom providers should have the ability to provide preferential treatment in the form of a tiered services, for example by giving online companies willing to pay the ability to transfer their data packages faster than other Internet traffic. The added revenue from such services could be used to pay for the building of increased broadband access to more consumers. Opponents to net neutrality have also argued that net neutrality regulation would have adverse consequences for innovation and competition in the market for broadband access by making it more difficult for Internet service providers (ISPs) and other network operators to recoup their investments in broadband networks.[44] John Thorne, senior vice president and deputy general counsel of Verizon, broadband and telecommunications company, has argued that they will have no incentive to make large investments to develop advanced fibre-optic networks if they are prohibited from charging higher preferred access fees to companies that wish to take advantage of the expanded capabilities of such networks.

Counterweight to server-side non-neutrality- Internet is already not a level-playing field: companies such as Google and Akamai achieve a performance advantage over smaller competitors by replicating servers and buying high-bandwidth services. Should prices drop for lower levels of access, or access to only certain protocols, for instance, a change of this type would make Internet usage more neutral, with respect to the needs of those individuals and corporations specifically seeking differentiated tiers of service. Network expert Richard Bennett has written, “A richly funded Web site, which delivers data faster than its competitors to the front porches of the Internet service providers, wants it delivered the rest of the way on an equal basis. This system, which Google calls broadband neutrality, actually preserves a more fundamental inequality.”

Tim Wu, though a proponent of network neutrality, claims that the current Internet is not neutral as, “among all applications”, its implementation of best effort generally favors file transfer and other non-time sensitive traffic over real-time communications.

Bandwidth availability- Since the early 1990s Internet traffic has increased steadily. The arrival of picture-rich websites and MP3s led to a sharp increase in the mid 1990s followed by a subsequent sharp increase since 2003 as video streaming and peer-to-peer file sharing became more common. In reaction to companies including YouTube, as well as smaller companies starting to offer free video content, using substantial amounts of bandwidth, at least one Internet service provider (ISP), SBC Communications, has suggested that it should have the right to charge these companies for making their content available over the provider’s network. Bret Swanson from the Wall Street Journal said that YouTube, MySpace and blogs are put at risk by net neutrality. Swanson says that YouTube streams as much data in three months as the world’s radio, cable and broadcast television channels stream in one year, 75 petabytes. He argues that today’s networks are not remotely prepared to handle what he calls the “exaflood” (see exabytes). He argues that net neutrality would prevent broadband networks from being built, which would limit available bandwidth and thus endanger innovation.

Andrew Coburn, vice-president of Catastrophe Research at Risk Management Systems, says there is potential for a major overload, if not a full crash. Coburn says that while we can cope at current traffic levels, an external event like a terrorist attack or a flu pandemic could easily overload the network. “A massive increase in traffic that resulted in overloads of router buffers and caused localised and progressive failure through the network is one of our major concerns. Packet loss leads to degradation of service, increased waiting times and reduces reliability to the point of unusability.” But there just isn’t enough information to determine how real the risk is, he says. “Each of the many thousands of individual service providers knows their own demand-supply relationships and the reliability that they expect,” says Coburn. “But these data are not public, and each sees only their own small part of the overall network. Nobody has more than a glimpse into the total network that comprises today’s internet.”
Opposition to legislation-

Given a rapidly-changing technological and market environment, many in the public policy area question the government’s ability to make and maintain meaningful regulation that doesn’t cause more harm than good.

For example, fair queuing would actually be illegal under several proposals as it requires prioritization of packets based on criteria other than that permitted by the proposed law. Quoting Bram Cohen, the creator of BitTorrent, “I most definitely do not want the Internet to become like television where there’s actual censorship… however it is very difficult to actually create network neutrality laws which don’t result in an absurdity like making it so that ISPs can’t drop spam or stop… attacks. The Internet Freedom Preservation Act of 2009 excludes reasonable network management from regulation

The Wall Street Journal believes that: “Government’s role here, properly understood, is not to tell Comcast how to manage its network. Rather, it is to make sure consumers have alternatives to Comcast if they are unhappy with their Internet service.” This is despite the fact that the overwhelming majority of residential consumers subscribe to Internet access service from 1 of only 2 wireline providers: the cable operator or the telephone company, something cannot be changed by the FCC, (who had called the hearing) but could be promoted by Congress with the Broadband Conduit Deployment Act, and/or with the promotion of municipal broadband.

References:

  • Vinton Cerf, co-inventor of the Internet Protocol, Tim Berners-Lee, creator of the web. Bob Kahn, Internet Protocol’s co-inventor
  • Tim Wu, a professor at Columbia Law School, published and popularized a proposal for a net neutrality rule, in his paper Network Neutrality, Broadband Discrimination.
  • SaveTheInternet.com argues that net neutrality creates an “even playing field” and that “the Internet has always been driven by innovation.
  • Bret Swanson from the Wall Street Journal
  • Andrew Coburn, vice-president of Catastrophe Research at Risk Management Systems
  • NSFNET Final Report (1995) p. 4
  • Odlyzko Efficiency and Fairness 2009 48 (contrasting NN to railroad and telephone common carrier policy)
  • FCC resolution of the Carterfone proceeding
  • non-discrimination provisions of title II of the Communications Act

Alvarez, Zerrina: Utilization of RFID – Legal Enforcement viz Privacy Matters

25/09/2012
SY2009-2010 1st Semester
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INTRODUCTION

Technology is happening beyond our pace. Models of cellular phones and laptops are fast changing: one after the other, the new ones offering more features, both in aesthetics and functionality. Walkmans are out. Ipods are in. It has already become part of people’s lives: a source of convenience cloaked with necessity. People with laptops are just a natural sight in almost all establishments offering WIFI. Children could no longer be found on streets playing outdoor games but are now busy playing with their PSPs or even WIIs. One could no longer imagine walking across the roads without cellular phones. Research works are mostly done online than in the library. No matter how fast these changes are happening, people have no choice but to double time just to be on track.

Technology has already penetrated various fields in the world. Communication is operated by telephony, networking and information systems. In medicine, most of the operations or treatments, either for cure or prevention of a disease, are possible due to advancement of technology. In agriculture, cross-breeding is already a practice for the production of best crops. In the arts, there’s digital production for movies and digital recording for music. In the Philippines, election process in 2010 will already be automated. Now, transportation system opened its doors to RFID or radio frequency identification technology.

In the advent of RFID in our transportation system, a lot of issues emerged. One of the issues is the imposition of extra burden to motorists for the registration fees, especially to operators of public utility vehicles. The registration fee will increase to Php 350. With the present economic crisis that we have, a sudden increase in the registration fees would really be taken as a burden. There is also an issue with regards to the partnership of Land Transportation Office with Stradcom, the entity who will assist in the RFID project, as it did not undergo the mandatory bidding process. Yet, the primary concern of the people is the possible violation of the right to privacy of individuals since the technology will allow the authorities to identify all information about a certain vehicle.

Although issues may arise regarding the peril that it may bring to the society, technology is a reality that we could not deny existence. It is a product of the continuous growing needs of the people. It is created by the people. Therefore, the extent to which it will be applied will still be determined by the people.

WHAT IS RFID?

Radio frequency identification (RFID) is a generic term that is used to describe a system that transmits the identity (in the form of a unique serial number) of an object or person wirelessly, using radio waves. It’s grouped under the broad category of automatic identification technologies.

There are three major components in the RFID system: the tag antenna (microchip), reader antenna, and the computer software. Both the tag and the reader antenna are composed of coiled antennas creating magnetic field between them. The reader antenna emits radio waves to activate the tag antenna. When the tag antenna passes through the range reached by these radio waves, it reflects back the signal and sends the data or information stored in it. The data or information received will be decoded by the reader antenna. The decoded data is then passed to the computer system for processing.

The mechanism used in RFID is very much similar to a bar code which is most commonly used here in the Philippines in supermarkets, shops and convenience stores. Bar code is “a machine-readable coding system consisting of elements with varying widths of vertical black lines and white spaces, patterns of dots, circles, square cells, and images, that when read by a bar code scanner can be converted into information (RFID Raising the Bar CODE).” As opposed to RFID, the use of bar code is limited only to a particular and limited distance.

HISTORY OF RFID

Technology is brought about by people’s needs. Back at the time of World War II, the British armies had difficulty of identifying their own returning aircraft. Thus, a system was developed whereby a “transponder was placed on “Friendlies” so that by giving the appropriate response to an interrogating signal, a “friendly” could be distinguished from a “foe.”

In the 1960’s and 1970’s, RFID tagging was used for security and safety in the usage of nuclear materials. Subsequent researches were made which explored the wide scope and applicability of RFID. One of early experiments done was with dairy cows in order to track their identification and temperature.

The 19th century was a turning point for RFID technology. During this decade, the application of RFID technology to several industries and services were recognized. It was initially used on the railroads to keep track of rolling stock followed by the identification of fleet vehicles, automatic toll collection on highways, access control to secured or monitored areas, and Remote Keyless Entry (RKE). Due to the widespread application of RFID technology, RFID tags were manufactured regularly several by U.S and European companies.

From 1990’s up to present, manufacturers continue to improve the standards for RFID technology which is geared towards a better, effective, reliable and economical RFID tags.

RFID TECHNOLOGY AND THE LAW

RFID technology is a means employed to gather and identify data or information. As such, it has an implication on the rights of an individual to privacy. Could it really be a violation of the right to privacy?

According to an article on “Privacy” of the Standford Encyclopedia of Philosophy, a person possesses his own self and body, thus, could be considered as his property. Accordingly, privacy could mean a person’s realm apart from others which is free from any intervention or interference by anyone. It is a complete control of oneself and any information related thereto.

Philippine laws uphold and respect the right of its citizens to privacy. It is one of the State policies that the “the maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy (Section 5, Article 2, 1987 Philippine Constitution).” In furtherance of this policy, several provisions on privacy are incorporated in the Bill of rights. Section 1, Article III of the 1987 Philippine Constitution states the: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. “ Section 3 of the same article provides that “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.”

Various actions were taken to implement these State policies and protect human rights. The Philippines was made a signatory to the Universal Covenant on Civil and Political Rights which laid out the rights of an individual, to wit: the right to legal recourse when their rights have been violated, even if the violator was acting in an official capacity; the right to life; the right to liberty and freedom of movement; the right to equality before the law; the right to presumption of innocence until proven guilty; the right to appeal a conviction, the right to be recognized as a person before the law; the right to privacy and protection of that privacy by law; freedom of thought, conscience, and religion; freedom of opinion and expression; and freedom of assembly and association. As a signatory, the Philippines committed itself to strictly uphold the above-cited human rights.

Recently, the Rule on the Writ of Habeas Data [A.M. No. 08-1-16-SC dated 22 January 2008] was adopted which provides remedy to those whose rights to privacy were violated. Pertinent provision is as follows: “SECTION 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.” This writ was adopted in order to safeguard the people’s right to personal information especially during this age of Information technology.

Analyzing the foregoing provisions, it would appear that the right to privacy is violated in the advent of RFID technology. First, it gathers personal information from an individual anytime and without the knowledge of the motorist. Second, intervention or interference by the government of one’s personal realm is evident. The Land Transportation Office and other law-enforcement agencies would always be in surveillance since RFID technology was adopted primarily for traffic management, law enforcement, and crime prevention. Yet, the aforementioned purposes are for the benefit of the general public. If these are the reasons for which the RFID technology is adopted, it is therefore a valid exercise of police power. Police power of the State may be described as one that regulates the use of liberty and property of people for the promotion of public welfare. The exercise of police power is justified under the Latin maxim: “Salus populi est suprema lex. Sic utere tuo ut alienum laedas.” which calls for the subordination of individual interest to the interests of the greater number.

Nevertheless, motorists are still clothed with fear that their personal information would be used for a different purpose. It is a fact that RFID technology is not only used in the transportation system but also in several industries and services. Hence, there is still a need for further legislation in order to protect the individual’s data and information from abuse. For one, The Department of Trade and Industry already issued Department Administrative Order No. 8, prescribing guidelines for the protection of personal data in information and communications system in the private sector. Legislators are also now seeking for the passage of Anti-Identity Theft Bill. Senator Manny Villar in his bill defined identity theft as: “a crime committed when an individual with fraud, malice, ill will, intent to malign or with perversion, uses another’s relevant and sensitive personal information to take on that person’s identity. The crime of identity theft covers: a. the misuse of one’s personal identification cards including passports, social security, documents relating to tax matters and employment, credit cards and other dossiers that distinguishes a person from another; b. mail fraud; c. stolen personalities in the internet, chatrooms, text messaging system and other advanced technology gadgets or in the mechanisms or modes of information highway; and d. all other forms that tend to establish new identity to defraud the government or further a crime defined in existing laws (Villar seeks immediate passage of Anti-Identity Theft bill ).” Camarines Norte Representative Liwayway Vinzons- Chato also authored House Bill No. 3828, Data Privacy Act, which “advocates the removal of registration requirements in favor of the accountability principle, calls for the establishment of the National Privacy Commission, and proposes to adopt a co-regulatory approach in implementation (http://www.cict.gov.ph/index.php?option=com_content&task=view&id=204&Itemid=1).”

Public officials would always be the representatives of the people regardless of period. They are vested with utmost trust and confidence. Hence, in whatever they do, they should do it in consideration of the interest of the general public. Whether RFID technology would be a valid exercise of police power, it is in the hands of our public officials.

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Author licensed this article under Creative Commons Attribution 3.0 Philippine license