Curammeng, Reynold Jr.

SY 2012-2013, Second Semester

• Data Privacy Act: Am I secured?
• SB 3327: “Magna Carta for Philippine Internet Freedom”

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Data Privacy Act: Am I secured?

The question that often comes to my mind every time I provide my personal information, especially through internet, is that, am I secured? Will it be used for legitimate purpose? Or will it not violate my right to privacy?

With the advent of RA 10173 or also known as the Data Privacy Act, these queries of mine became clear. I am, indeed, secured. The purpose of the Legislative in passing this law is to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.

But before I go any further, let me just discuss the basis for the passing of RA 10173. It is anchored on the Constitutional guarantee of the right to privacy. Article III, Section 3 of the Philippine Constitution provides that:

(1) “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.”

RA 10173 is also based on European Council No. 45/2001 in which, it protects the fundamental rights and freedoms of naturalpersons, and in particular their right to privacy with respect to the processing of personal data and shall neither restrict nor prohibit the free flow of personal data between themselves or to recipients.

Scope of application

RA 10173 applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.

On the other hand, this Act does not apply to the following:

(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.

Likewise, section 6 of said law provides for the extraterritorial application of RA 10173. However, it seems that debates will likely arise on this matter because of jurisdictional issues. I wonder if the Implementing Rules and Regulations of this law will somehow address such question.
What are the benefits under RA 10173?

Section 5 of the law provides that: “Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.”

This provision affords great protection in favor of the media men, such as publishers, editors and reporters, against unreasonable harassments of being compelled to reveal the source of any news report or information. It likewise provides peace of mind in favor of the source regarding their personal information being disclosed. In this case, the right of the people to information on matters of public concern will not be abridged.

Section 16 of the law enumerated the rights of the data subject. These enumerations point to one thing, there must be consent and notice before an information can be process. Violation of these rights will sanction penalty, which will be discussed later. Noteworthy to point out is subsection (e) of section 16. It provides that:

“Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information”

Whenever the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purpose, the data subject has the right to order such information to be suspended, withdrawn, blocked, removed or destroyed by the information controller. The data privacy has also the right to demand indemnity for the injury caused by such information which is incomplete, outdated, false or unlawfully obtained.

Section 20 ensures security of personal information. It provides:

“The personal information controller must implement reasonable and appropriate organizational, physical and technical measures intended for the protection of personal information against any accidental or unlawful destruction, alteration and disclosure, as well as against any other unlawful processing.”

This provision guarantees that the personal information of the data subject will be protected and secured. This way, it will be easy to disclose your personal information, even privileged information, because you know that it is safe. The law puts a heavy burden on the information controller to ensure that the information obtained will only be used for lawful purposes.

This law, as what Senator Anggara said, will not only boost the confidence of potential investors in the country’s IT-BPO industry, but also the trust of ordinary citizens in e-government initiatives.

What are the contentious provisions of RA 10173?

There are provisions in the law that I find interesting, if not contentious. First, is section 5 of the law which provides that:

” Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.”

It may readily appear that this is a benefit under RA 10173. However, if you read it carefully, such provision will likely invite abuse of right on the part of the media men. The provision may be used as a cloak to protect their evil intent in reporting libelous, false or fraudulent information. As the law states, media men may not be compelled to disclose the personal information of their source. What I am afraid of is that, media men may report libelous, false or fraudulent information, claiming that they gathered it through a reliable source, where in fact such source does not exist. They may not be compelled to disclose it and may easily invoke this provision of law.

Another provision that is noteworthy of mentioning is section 7 which provides that: To administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection, there is hereby created an independent body to be known as the National Privacy Commission, xxxx”

This provision caught my attention and I find it very interesting. It is provided in this section that there shall be an INDEPENDENT BODY that will monitor and ensure compliance of the law. It means that it is not under the direct supervision or control of the President. The commission, being an independent body, has a wide discretion regarding its obligation as mandated by the law. It means that the President or any other government official, for that matter, may not use their powers in influencing the commission in order to achieve their fraudulent and evil intent. As what happened during the impeachment of Chief Justice Corona, wherein the government used its machinery to obtain information, regardless if it is in violation of the right of CJ Corona. With this provision, we may safely say that we are more secured now compared to what happened to CJ Corona.

Penal Provisions

The law enumerated different kinds of penalties for violation of the RA 10173. the acts punishable under this law are the following:

1. The unauthorized processing of personal information or personal sensitive information – penalties are imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

2. Accessing Personal Information and Sensitive Personal Information Due to Negligence – penalties are imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

3. Improper Disposal of Personal Information and Sensitive Personal Information – penalties are imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

4. Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes – penalties are imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.

5. Unauthorized Access or Intentional Breach – penalties are imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.

6. Concealment of Security Breaches Involving Sensitive Personal Information – penalties are imposed on persons who, after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission conceals the fact of such security breach.

7. malicious disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her.

8. Unauthorized disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject.

Having these penal provisions of the law, the data subject is well protected with regard to his personal information.

Conclusion

It is in my humblest opinion that this law will tend not just to increase confidence of the potential investors, especially IT-BPO industry, but also it boost the assurance of the general public that their personal information will not be used to unlawful purposes. It also bolsters the constitutional guaranteed right to privacy. The challenge now to the legislative and the government officials, who have the obligation of ensuring compliance of this law, is with regard to its Implementing Rules and Regulations and the long-term administration of this law. They must craft the IRR carefully in order to attain the significant objective of this law.

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Sources

The 1987 Constitution of the Philippines

http://www.pia.gov.ph/news/index.php?article=2101345796739

http://www.gov.ph/2012/08/15/republic-act-no-10173/

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2001R0045:20010201:EN:PDF

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SB 3327: “Magna Carta for Philippine Internet Freedom”

“I think it’s fair to say that personal computers have become the most empowering tool we’ve ever created. They are tools of communication, they’re tools of creativity, and they can be shaped by their users” -Bill Gates

Indeed, computer is the most powerful tool that man has ever created. With the help of the internet, this powerful tool may be used in different ways, in communication or even boosting one’s economy and it may even be the channel or forum for every individual to express their feelings or sentiments. However, this great convenience comes with greater responsibility and duty, not only to be mindful of the rights of other people but also, the duty of the government in coming up with a protection for every individual. By that, the Legislative body of the Philippines had passed several laws seeking to protect the rights of Filipino netizens and providing for a penalty for those who will commit a crime through the use of the ICT. For one, RA10173 or the Data Privacy Act of 2012 and another would be the controversial Cybercrime law.

Recently, the Philippines was shaken by the passing of RA10175, also known as Cybercrime Law. Filipinos went hysterical about it and at least 15 petitions were filed before the Supreme Court seeking to declare said law as unconstitutional. On the other hand, the Supreme Court in addressing this problem, issued a 120 day Temporary Restraining Order to stop the implementation of the law.

Is RA10175 BAD?

To help you understand the subject matter of this article and before I dig deeper, let me just express my sentiments about RA10175. Is RA10175 a bad law? I honestly believe that this law is a GOOD law, considering the fact that it seeks to prevent identity theft, fraud and even child pornography. The problem however, which triggered me and the filipino netizens to react, is that the law has loopholes which cannot be left unnoticed because it violates the rights of the people which were secured by the Constitution.

For one, there is a libel provision in the law. Netizens were afraid that the government itself, who must protect their very right to freedom of expression, as mandated by the Consititution, will be the one violating it. The law provides for a heavy penalty for any person who would post, through social networking sites, any libelous statements.

Another issue in this law is the violation of the right of the people to privacy. The Constitution, particularly Section 3 (1), Article III, 1987 Constitution provides:

“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

It is clear, therefore, that there must be a lawful order of the court. In this case, however, RA10175 gives the government a blanket authority to collect and seized data prior to the issuance of a court order for the same.

As I go along with the discussion, I will try to compare provisions of RA 10175 and SB 3327 to come up with a conclusion on which of the two is better.

New Life, New Hope!

Worry not my friends and fellow netizens, with the advent of SB3327 an act establishing magna carta for Philippine internet freedom, cybercrime prevention,and law enforcement, cyberdefense and national cybersecurity, which was introduced by Senator Miriam Defensor Santiago, there is a window of opportunity waiting for us. And if this becomes a law, there would be, indeed, new life and new hope for the Filipinos.

Let’s backtrack a little; this senate bill was passed by Senator Santiago to address the problem in RA10175. It is said to be the first law, if ever, to be crafted through crowdsourcing, which she describes as a process of getting the job done by tapping people on the Internet.

According to Santiago, it was concerned netizens that include software designers, information technology experts, academics, bloggers, engineers, lawyers and human rights advocates who went to her with a draft of the MCPIF. She said the group formulated the MCPIF through discussions in an open Facebook group, e-mail, Google Hangout teleconferences and social media channels like Twitter.

Salient Features

After going through the bill, I noticed this outstanding provision waving at me. Section 23 of the bill expressly repealed RA 10175 in its entirety. It only means that, if this would become law, Filipinos should not be afraid anymore. Their rights to freedom of speech and right to privacy are fully protected by the bill. Senator Santiago said:

“While it is important to crack down on criminal activities on the Internet, protecting constitutional rights like free expression, privacy and due process should hold a higher place in crafting laws.”

Another provision that caught my attention is section 6 paragraph 2. It states that no person shall be deprived of internet access until and unless there is an order issued by a court of competent jurisdiction. This provision clearly upholds our Constitutional guaranteed right to due process. Section 1 of Article III of the 1987 Constitution provides:

“No person shall be deprived of life, liberty or property without due process of law”

Contrary to the provision of RA 10175, particularly section 19 thereof, it provides that when a computer data is prima facie found to be in violation of the law, the DOJ has the power to issue an order to restrict or block access to such computer data. The provision of the law gives the government the blanket authority and wide discretion to determine whether or not there is violation of the law. It gives the DOJ a power that may be abused if not used or exercised properly.

Another interesting provision of the bill is section 36 thereof. The proposed bill took a big step in decriminalizing libel through the use of internet. The provision provides that libel will only give rise to civil liability and the amount shall be commensurate to the damages suffered. Unlike in RA 10175, libel is a criminal offense and the penalty to be imposed of is one degree higher than that provided in the Revised Penal Code. This is absurd and alarming at the same time, the only qualifying circumstance for the higher penalty is the use of information and communication and technology.

Worthy to note is section 33 (A.4) and (A.5). Netizens, especially journalist, would have the freedom to express their sentiments against the government without the threat of being prosecuted or to be held liable for their acts. Section 33 (A.4) provides for the exceptions to internet libel. Some are: a.) Expressions of protest against the government; b.) Expressions of dissatisfaction with the government, its agencies or instrumentalities, or its officials or agents, or with those of foreign governments. On the other hand, if in case an individual is prosecuted or being held liable for internet libel, Section 33 (A.5) comes into play. This particular provision provides netizens with a defense. Internet libel will not lie not lie if the content of the expression is proven to be true, or if the expression is made on the basis of published reports presumed to be true, or if the content is intended to be humorous or satirical in nature, except if the content has been adjudged as unlawful or offensive in nature in accordance with existing jurisprudence.

Furthermore, a prosecution under the proposed bill will bar any further prosecution of the act as a violation of the Revised Penal Code and other special laws. This is expressly stated in Section 40 of said bill. Contrary again to Section 7 of RA 10175 in which prosecution under the said law shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. The provision of the proposed bill upholds the rule on double jeopardy which is mandated by our Constitution. Section 21 Article III of the 1987 Constitution provides:“No person shall be twice put in jeopardy of punishment for the same offense.”

Conclusion

“A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty.”

-Montesclaros vs COMELEC GR No. 152295

Having said that, the proposed bill has no legal effect, it confers no rights, it imposes no duties and it affords no protection. Regardless of how perfect it was crafted or how beautiful the intention is, still, we cannot rely on it.

However, as a nation and as responsible netizens, we cannot just sit. We can do something just like what we did when RA 10175 took effect. We once raised our voice to protect our rights. We can do that again now so that this SB 3327 may be given importance. In my humblest opinion, the proposed bill is almost perfect compared to RA 10175, and if it becomes law, it will change the entire future not only of the Philippines but its people.

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Sources

1987 Constitution

http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet

http://www.lawphil.net/judjuris/juri2002/jul2002/gr_152295_2002.html

http://www.gov.ph/2012/09/12/republic-act-no-10175/

http://www.senate.gov.ph/lisdata/1446312119!.pdf

Paat, Hazel Anne

SY 2012-2013, Second Semester

• How the Data Privacy Act Impacts Me Personally
• RA 10175 or Magna Carta for Philippine Internet Freedom?

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How the Data Privacy Act Impacts Me Personally

I am studying Law but I did not bother to read this Act until this was required in my subject, Technology and the Law. Indeed, it deserves to be given a closer look and how this Act will impact me as a person, in the legal profession and in the society to which I live in.

1. Personally

I know that personal information submitted to government agencies such as PAG-IBIG, SSS or LTO or NSO are not totally private or personal information exclusive only to the access of staff of said government agencies. It can be made available as public records to anyone who has a legal purpose, right connection and money to buy such information. Before one knows it, it has already been sold to an advertising company, or to a credit card company and one begins to wonder why one suddenly receives phone calls from strangers who pretend they know them personally. To one’s surprise they have an accurate personal information of the person and all he needs to do is to confirm it with them! You start thinking if someone just sold your personal data? Or did you just lost an ID card and somebody found it and your personal information has gone public? Or having to experience that there is a record of a current Loan in SSS or PAG-IBIG when the member has not really availed of such loan. This shows that somebody had an access of the SSS/PAG-IBIG details of the subject and it was used by somebody else. But the member/subject has to pay it and he cannot do anything otherwise his alleged outstanding loan will balloon or his retirement benefit will get affected! If none of these make sense, then you realize, nothing is safe now these days including safeguarding one’s own identity! Before this Act, one is as helpless as anyone else on what to do if these things happen.

Personally, I think the Data Privacy Act is an answer to the growing violation against the basic human right, the right to privacy. Privacy to personal data information is what this Act is aimed to protect. It protects and safeguards personal information of private individuals like me so that personal information are not readily available and accessible to the public or to anyone who may just want to access personal information, misuse or steal an identity. The coming of this policy must have been adopted in the United States or other countries where digital technology is far more advanced and security of personal data is of prime importance. The Philippines, which is a little bit behind is just catching up. Many controversies pertaining data privacy must have been encountered, either recorded or unrecorded, thus the birth of this Act. Indeed, it will protect private invidual’s right to privacy, the right to life and the freedom to live in the way one wants without it looking at one’s shoulder that one is watching his/her life! I hope that the Implementing Rules and Regulations will clarify provisions of the Act that may be vague.

Before one could have process personal or data information, or process sensitive information, the request must pass through several layers of approval which to me indicates that getting access to personal data or information of the subject is indeed difficult. This assures the subject that before one could have access to his personal details, on top of the layers of approval, it further needs the subject’s consent. So before one could access to my personal data information, I need to be informed and my consent will be needed before any information will be released to any requesting party. The Act puts limit to the extent of personal information that one can only gained access thereto.

I believe this Act will protect my right to privacy and will prevent any difficult situation for identity theft or from misuse which will put me in danger. I just hope that Implementing Rules and Regulations will have a clear-cut procedure so that unscrupulous individuals will not use it to their advantage and benefit from it.

The limitation that the Act does not apply to any officer or employee of a government institution is welcoming in line with the transparency of the government employee or official in charge of processing or keeping of personal data information. This will deter the government employee to hide information that will pertain to any conflict of interest or financial interest that he or she may be protecting and might just be using the Act to protect his own interest.

II. As to the Legal Profession

I will still discuss my opinion in line with the legal profession as this is personal to me, being a student of law. Personally, it protects and safeguards my personal data information and it puts integrity to the goverment agencies who collect personal data. However, I think that this Act will provide a shield to the criminal offenders, recidivists, accused or those who were already convicted. Before the information commission may release data information to the Court, one needs the consent of the accused, convict or criminal. Who in his right mind will incriminate himself and permit anyone to collect information that maybe later be used against him? Speaking of the fruit of the poisonous tree, any information obtained that will violate the human rights or without affording due process to the individual cannot be used as an evidence against him in any court, administrative body or tribunal. How will this be addressed in the Act’s Implementing Rules and Regulations? Will this be taken into consideration?

The restriction to the access and processing of personal data information have no exemption like giving authority to validate the identity of a criminal, bank transactions that will prove he has been involved in anti-money laundering activities or has assumed another person’s identity. He will be able to hide and disguise his identity and be scot free. Access to sensitive information such as bank deposits and transactions, civil status, blood type, etc. cannot be secured because one needs his consent in order to be able to access and process such personal information. Any person who has committed a crime and may not want anyone to gain access of his person data information may just properly invoke this Act. At worst, the subject can even file a complaint against the individual who secured sensitive personal information when he should be the one to be charged for the crime he has committed.

One that is also pointed out in this Act is the level of approval that needs to be sought before one could have access to the data information needed and it has also certain limitations to the number of personal information allowed. Consent of the person is required before one have an access to it. Again, this will reinforce the doctrine against self-incrimination.

Will this Act cover the ‘General Waiver’ being signed by applicants who seek employment in companies? An example of a General Waiver will state the following:

By my signature on this application, I:

a. Authorize the verification of the above information and other necessary inquiries that may be necessary to determine my suitability for employment.

b. Affirm that the above information is true.

________________________________
Applicant’s signature

Can the employer in private corporatations invoke this ‘General Waiver’ to check on the employment background and history, personal information of an applicant such as, existing loans in any government agency or bank, criminal records? If this cannot be invoked and the Act prevails, how will the employer protect its business? How do you safeguard the right of the employer to their right of information pertaining to the people that they hire or do you take into consideration the ‘General Waiver’ signed by the applicant? Can the employee invoke and take advantage of the provisions of this Act to cover his illegal activities, his past wrongdoing in the previous employment? Is the ‘General Waiver’ clause unconstitutional? Should it be stricken out from the employer’s hiring application form?

The pyramiding scam, the most recent ‘Aman Futures’, victimized so many people and robbed them off of their livelihood in Mindanao. The persons involved may be charged with syndicated estafa if their guilt is proven. They claimed that they were issued with the Certificate of Registration by Securities and Exchange Commission. If their personal data were accessed prior to the establishment of the organization, will the Securities and Exchange Commission issue the Certificate of Registration?

The Penalty for unauthorized processing of personal information range from one year to three years with a fine of not less than P500,000 but not more than P2,000,000 while the processing of sensitive information is penalized by imprisonment ranging from three years to six years and a fine not less than P500,000 but not more than P4,000,000. Even access due to negligence is also being penalized in this Act. The fine in this Act is a lot higher compared with other offenses in the Revised Penal Code. To me, it does not commensurate to the special law violated. Although penalties in the Revised Penal Code really need to be revisited since those were still made during the Spanish regime or adopted from the Spanish Penal Laws, the penalties of this Act seem too harsh for such violation/s.

What provisions in the Act which shall be in conflict with the provisions of the Revised Penal Code? Were these reconciled? Will the Implementing Rules and Regulations clarify any provisions in conflict with other Laws?

I also think that this Act will curtail the freedom of speech of Journalists. They will not be able to collect or gather personal information or gain access to sensitive information and cannot just publish it as they will be penalized for gaining access to. Again, the unscrupulous individuals can use this Act to protect themselves . What if the Journalist’s reports open the pandora’s box and will uncover more illegal activities involving powerful and influential people or even extend to our territorial waters, can this Act just be invoked so their right is protected?

The society or community must also be informed and educated about this Act so they know their rights. It must be relevant and should cover many areas including employment, etc.

III. Conclusion

To conclude, this Act definitely protects public interest and safeguards a person’s basic right to privacy. One feels safer and secured that nobody will assume or steal your identity or that your data information you have submitted for any legal purpose is not accessed or misused or changed unless you consent or authorize it. With proper implementation, this Act will be used for a more orderly, safer society.

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RA 10175 or Magna Carta for Philippine Internet Freedom?

Is the Magna Carta for Philippine Internet Freedom better than the Cybercrime Law?

The controversial Republic Act 10175 or known as Cybercrime Law of 2012 was signed by President Benigno Aquino III on September 12, 2012 ^[1] and was made effective last October 3, 2012, fifteen (15) days after its publication. Since then, it has been the subject of hot debates and protests questioning about its constitutionality. Media claims that it curtails press freedom. Invitation to sign up the petition against it was posted in the internet. ^[2] Every internet user who has the opportunity to voice out their opposition against said law made it as a shout in their ‘FB’ or Facebook account or some have spoken out in chanced television interviews. Every reaction is based on a person’s personal interpretation ^[3] of the law as the implementing Rules and Regulation is yet to be issued.

In response to petitions filed, the Supreme Court issued a temporary restraining order (TRO) to stop the the implementation of Republic Act No. 10175 Act of 2012 for 120 days. The SC, in its regular full court session, also set oral arguments on the cases on January 15, 2013. ^[4] Senator Miriam Defensor Santiago authored the Senate Bill 3387 or the Magna Carta for Philippine Internet Freedom.

The law and the senate bill shall be dissected and understood in the light of my own understanding and appreciation of the law and the bill.

1. Scope- The scope of Republic Act 10175 is limited to the definition of cybercrime, providing for its prevention, investigation, suppression and imposition of penalties and used the “all catch” phrase, for other purposes. Whereas, the Senate Bill 3327 or Magna Carta for Ineternet Freedom is wider in scope as stated in its long title and to quote, “An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law enforcement, cyberdefense and national cybersecurity.” From the title of the Magna Carta alone, it respects the right or freedom to use the internet but it puts a limitation to this for those who will misuse, abuse or disuse it. Magna Carta as defined By Merriam-Webster dictionary is a charter of document consituting a fundamental guarantee of rights and privileges. Indeed, the bill authored by Senator Miriam Santiago did not just simply made a definition of what a cybercrime is but it emphasized that is both a right and privilege. As a right, the State recognizes it but as a privilege, such right will need to be regulated. The scope also covered Cyberdefense and National Cybersecurity. In the Cybercrime Law, it defined only cybersecurity in its definition of terms and referred to all the provisions in the Revised Penal Code for other violations related to the national security. The Revised Penal Code was made effective way back in January 1, 1932 ^[5] and there are no computer or cybercrime to speak of at that time. This, did not fill in the missing detail of the law.

2. Declaration of Policy – Both the Cybercrime Law and Magna Carta in the declaration of policy recognized the vital role of communication and information in nation building. However, the policy in Magna Carta is all-encompassing and reiterates that the laws and implementing rules and regulation is in accordance with the 1987 Philippine Constitution. It affirms the State’s commitment to the Filipino people for the observance of constitutional rights and the implementation of constitutional law, which is supreme to all other laws. It guaranteed that the constitutional rights of the people are given primary importance, which was not stated in the Cybercrime Law. The policy of the Magna Carta is very detailed and comprehensive. It tries to show that it will take a balancing act considering all the interests of the people, from the impact to its users, down to the respect for the basic rights and even to the innovation and development of programs to enhance the Philippine economy by harnessing information and technology. Whereas, Cybercrime Act focused on the detection, facilitation and prevention of cybercrime.

3. Definition of Terms – Obviously, the definition of terms in the Magna Carta is much wider in scope as it enumerated, clarified and standardized computer lingo by using world wide web and technically accepted terminologies. While Cybercrime Law limited itself with only 17 definition of terms, Magna Carta has 60 terms, excluding sub-definitions. A technical terminology per se is already difficult to undertand especially for a layman or non-information technology person and not all computer users are technical savy. With more terms being defined in the Magna Carta, it will set a common understanding of the technical terms and this will minimize misinterpretation and remove vagueness of the provisions of the law.

4. Law versus Bill –In Section 16 of Chapter IV (Duties Related to the Promotion of Internet Freedom) on duties and state agencies and instrumentation, it designates that the Department of Information and Communication as the lead agency, for overseeing the development and implementation of plans, policies and programs on the use of internet and information and technology in the Philippines but in coordination with other agencies which are likewise responsible with other related laws of the land. In the same way in the Cybercrime Law, the lead agency in charge for the implementation of the law is the Office of the Cybercrime which will be under the Department of Justice. I think the Department of Information and Technology is the proper agency to do the job since it will have experts(lawyer, technocrats or Information Tehcnology practioners or Computer Engineers) , the very people who understand science and technology hamornizing with the Constitution and other laws of the land as well as with international law. Changes with the Rules of Court shall also be effected as this produces a new classification of evidence. With a clearer Implementing Rules and Regulations, the Magna Carta will establish which evidence are relevant or irrelevant. Since Technology is dynamic and evolving, it will also be the right agency to prepare the Implementing Rules and Regualtions and draft Special Procedures, update new information, etc.

The Magna Carta also proposed the creation of a special court for cybercrime cases which I agree. The said court will handle all cybercrimes cases just like tax cases for Tax of Appeal, or Family Courts for domestic cases. The procedures may be incorporated under Special Proceedings of the Rules of Court.

In the Magna Carta6, it proposed an amendment in the Intellectual Property Law, In Chapter 3, Section 18 of the Magna Carta for Philippine Internet Freedom, it defined intellectual property rights over internet based creation which was not yet defined in the Intellectual property Code. The proposed amendment in the Intellectual Property Law as quoted below:

(n) CODE, SCRIPTS, COMPUTER PROGRAMS, SOFTWARE APPLICATIONS, AND OTHER SIMILAR WORK, WHETHER EXECUTABLE IN WHOLE OR AS PART OF ANOTHER CODE, SCRIPT, computer programs, SOFTWARE APPLICATION OR OTHER SIMILAR WORK;.

Without this specific provision, it will be broad and vague as to classify the form of intelellectual creation or if the Intellectual Property Law can define it – how does this creation be protected by the said law, the same way that industrial design or utility model is. This form of intellectual creation already abound but the right of the creator remains unprotected. This adds to the enumeration of the different forms of intellectual creations and remove vagueness and misinterpretation of the law. The Cybercrime Law is supposed to protect technology inventions or intellectual creation but such was not made clear in the Cybercrime Law of 2012. The Cybercrime Law provides for the penalties for its violation but limited the different cybercrimes to cybersecurity, violation against integrity of the information, cybersquatting without including the protection of intellectual creation and those to be considered as intellectual creation under this form.

The Magna Carta also proposed to amend Section 172 of the Intelellectual Property Code,

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression OR PUBLICATION, as well as of their content, quality and purpose.

If any work is protected by this proposed Magna Carta regardless of any form of publication, does it mean that any audio-visual presentation or article written or videos uploaded in the internet will be protected by this Magna Carta? Is the sexual act or any similar act videotaped be considered as an intellectual creation? Will an intellectual creation of a sexual act taken/videotaped by the parties, one of them uploaded it in a social network and was downloaded by another internet user be considered a violation of an intellectual property on the basis of the proposed provision? Of course, this is protected by the Republic Act 9995 or Anti-Photo and Video Voyeurism Act of 2009″, as stated in the prohibited act, (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. ^[7] But how do this law be harmonized in the Magna Carta?

Section 11 of the Magna Carta also covered local Internet Service provider which protects the consumers of internet service and the providers alike. Right now, there is no direct agency where complaints can be filed against internet service providers which charges expensive fees but quality of cable connection is not satisfactory. Complaints are passed on to the Customer Service Relations Officer of a subcontracted agency but more often no feedback are given to consumers or if there is, no solution is offered to them. An irate consumer may just decide to shift to another provider but there are only few players in the market which leaves the poor consumer to just get used to the bad service. The agencies that assist customer complaints can be the Department of Trade and Industry for consumer products or the National Telecommunications commissions for calls or SMS related concerns. However, because of the volume of complaints, it is difficult for these agencies to act on all these. The Magna Carta stipulated one important and relevant concern of consumers when it comes to postpaid users of SMS, cable or cellular phone usage that is the correction of errors ^[8] in the billing statement issued by the service providers. To wit,

Section 20 (E) TIMELY CORRECTION OF ERRORS IN BILLING AND THE IMMEDIATE PROVISION OF REBATES OR REFUNDS BY THE UTILITY WITHOUT NEED FOR DEMAND BY THE USER;

With the Magna Carta, the right of the consumer on rebates and refunds without need of refund is protected.

It clarifies ambiguous provisions of the Anti-Trafficking in Persons Act of 2003 but how will a foreign national based in his country and is involved in human trafficking by advertising, promoting Filipino women or prostitute in the internet? Will this not be beyond the jurisdiction of the Philippines even if Article Two of the Revised Penal Code provides this as an exemption? Is this considered an international law? Is this covered by a treaty?

Under the Revised Penal Code, Libel is defined as public and malicious 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 ^[9]. The Magna Carta introduced a new genre of libel – that is internet libel. However, it is defined in the same way as libel is defined in the Revised Penal Code.

Internet libe1 ^[10]. – Internet libel is a public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks.

There is really no need to introduce this term as this will be covered under the Revised Penal Code’s definition of Libel.

The Cybercrime Law seemed to have been ‘half-baked’, just for the purpose of having a law to penalize cybercrimes than none at all. The increasing issues on cybercrimes or violation against internet use must be the driving force why the lawmakers have rushed into legislating for one. However, the law has vague and broad areas that invite many misinterpretation. While, the Cybercrime Law appears to be a shortened or an abridged form of a copied law, the Magna Carta is so comprehensive in its provisions that one may get ‘lost in translation’ and you may wonder if you are reading the provisions of Intellectual Property Law or still the Magna Carta of the Internet Freedom Use. Nevertheless, it is a better and comprehensive version of the Cybercrime Law. Therefore, the Cybercrime Law must be repealed by this Magna Carta of Intenet Freedom authored by Senator Miriam Santiago!

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Endnotes

[1] Republic Act 10175, Section 31, Page 17.

[2] “I will not be silenced….NO TO RA 10175”, http://www.nujp.org/no-to-ra10175/. 08 January 2013.

[3] Toral, Janette, Digital Filipino, http://digitalfilipino.com/introduction-cybercrime-prevention-act-republic-act-10175/. 09 January 2013

[4] Panaligan, Rey G. “Cybercrime Law Stopped”. Manila Bulletin Publishing corporation, http://www.mb.com.ph/articles/376433/supreme-court-issues-tro-against-ra-10175-or-cybercrime-prevention-act-2012#. 09 January 2013.

[5] Republic Act 3815, Article 1.

[6] Santiago, Miriam Defensor. S. B. 3327, Magna Carta for Philippine Internet Freedom.

[7] Republic Act 9995, “Anti-Photo and Video Voyeurism Act of 2009”, Section 4. d.

[8] Santiago, Miriam Defensor. S. B. 3327, Section 20 (E), Magna Carta for Philippine Internet Freedom.

[9] Revised Penal Code. Title 13, ‘Crime Against Honor’, Chapter 1, Section 1, Article 353.

[10] op. cit. Section 33, A.1.

Javier, Clifford

SY 2012-2013, Second Semester

• “Data Privacy Act of 2012″
• What Now?

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“Data Privacy Act of 2012″

Let me begin, by mentioning Section 5 of the 1987 Philippine Constitution. The law provides that “The privacy of communication and correspondence shall be in violable except upon lawful order of the court or when public safety and order require otherwise.” (Article III, section 1 [5] of the Constitution. This provision cited refers to privileged communication. Privilege communication is defined as a private communication made by any person to another, in good faith, in the performance of any duty, whether legal, moral, or social, solely with the fair and reasonable purpose of protecting the interests of the person making the communication or the interests of the person to whom the communication is made, is a privileged communication.” (Sec. 9, Act. No 227). Likewise a communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained incriminatory matter which without this privilege would be slanderous and actionable.’ (Harrison vs. Bush).

Privilege is classified as either absolute or qualified. For the sake of clearness of application privileged communications are often divided into two classes: Absolute privilege; and conditional or qualified privilege, the second sometimes being called ‘quasi privilege.’ In cases of absolutely privileged communications, the occasion is an absolute bar to the action; whereas, in cases of conditionally or qualifiedly privilege communications, the law raises only a prima facie presumption in favor of the occasion. In the former class the freedom from liability is said to be absolute or without condition, regardless of the existence of express malice, as contrasted with such freedom in the latter class where it is said to be conditioned on the want or absence of express malice.” (53 C.J.S., 141-142.) An absolutely privileged communication is one for which, by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action for slander or libel. It is well settled that the law recognizes this class of communications which is so absolutely privileged that even the existence of express malice does not destroy the privilege, although there are some dicta denying the rule, and some eminent judges, in dealing with particular applications of the rule, have doubted or questioned the rationale or principle of absolutely privileged communications. As to absolutely privileged communications, a civil action f or libel or slander is absolutely barred.” (53 C.J.S., p. 142.) Qualified privilege exists in a larger number of cases than does absolute privilege. It relates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty. Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice, and as to such communications there is no civil liability, regardless of whether or not the communication is libelous per se or libelous per quod.” (53 C.J.S., pp. 143-144.)

Public policy is the foundation of the doctrine of privileged communications. It is based upon the recognition of the fact that the right of the individual to enjoy immunity from the publication of untruthful charges derogatory to his character is not absolute and must at times yield to the superior necessity of subjecting to investigation the conduct of persons charged with wrongdoing. In order to accomplish this purpose and to permit private persons having, or in good faith believing themselves to have, knowledge of such wrongdoing, to perform the legal, moral, social duty resulting from such knowledge of belief, without restraining them by the fear that an error, no matter how innocently or honestly made, may subject them to punishment for defamation, the doctrine of qualified privilege has been evolved, under which, “the occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon him the burden of proving that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made (US vs. CAÑETE).

Indeed, our constitutional guarantee of privacy of communication and correspondence will not be violated, because the trial court has power and jurisdiction to issue the order for the production and inspection of the books and documents in question in virtue of the constitutional guarantee making an express exception in favor of the disclosure of communication and correspondence upon lawful order of a court of justice. As the law stands now, there are two ways that this guarantee may be limited that is by lawful order of the court or when public safety and order. Lawful order means that there is a mandate coming from courts in their exercise of their judicial power to limit such right. The other when public safety or order requires. This is a mandate by the very existence of the government. When the government deems it fit to enact laws, they may enact laws, in order to promote and preserve the government as well as its citizenry.

The enactment of Republic Act 10173 or known as the “Data Privacy Act of 2012″ is a living example of such authority of the government to preserve, promote and improve the government itself. This law accordingly is deemed necessary to safeguard the rights of its citizenry. Basically, this law will try be protecting personal information in the information and communication systems in the government and the private sectors. Personal information is refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual. The policy is embodied in section 2 to wit, “it is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected”. The said provision is the root of its enactment. The wise men and women of Congress, to me had anticipated the fast changing era, the so called postmodernism. Accordingly, postmodernity implies flexibility and changes. For Lyotard, postmodern would be that which in the modern invokes the un-presentable in the representation itself. That which refuses the consolation of the correct forms, refuses the consensus of taste permitting a common experience of nostalgia for impossible and inquiries of the new un-presentable (Lyotard, postmodern condition). The pronouncement made by him ignites changes in the first world countries. U.S.A, Germany, France and other countries begin to improve their laws concerning communications in relation participation in the political sphere. They now acknowledge, what was before unrepresented and/or un-captured to their minds, the birth technology matters in the political hemisphere.

Quite interesting to point out that its applicability is encompassing. Section 4 of the said law provides that “Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines. It does include juridical and those other person that may be authorized by law. Furthermore, it did not limits its application herein the Philippines as section 6 points out that it may be made applicable to acts done or practices engaged in and outside of the Philippines by an entity if relates to personal information about a Philippine citizen or a resident entity that has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents such as, but not limited to, the following: (1) A contract is entered in the Philippines; (2) A juridical entity unincorporated in the Philippines but has central management and control in the country; and (3) An entity that has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information amongst other. For me, this shows more significant to Filipinos working anywhere other than our country. In order to classify what may be included as personal information, the law specifically provided its criteria. The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:(a) The data subject has given his or her consent; (b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract; (c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject; (d) The processing is necessary to protect vitally important interests of the data subject, including life and health; (e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or (f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

One important feature of this law is the creation of National Privacy Office. This independent body is likely to assure that the purposes of this law will be attained. Without which, no instrumentality of the government can focus specially the mandates of this law. The Commission shall be attached to the Department of Information and Communications Technology (DICT) and shall be headed by a Privacy Commissioner, who shall also act as Chairman of the Commission. The Privacy Commissioner shall be assisted by two (2) Deputy Privacy Commissioners, one to be responsible for Data Processing Systems and one to be responsible for Policies and Planning. The Privacy Commissioner and the two (2) Deputy Privacy Commissioners shall be appointed by the President of the Philippines for a term of three (3) years, and may be reappointed for another term of three (3) years. Vacancies in the Commission shall be filled in the same manner in which the original appointment was made.
The powers and functions of the commission is enshrine in section 7, to wit the assurance compliance of personal information controllers, exercise quasi-judicial power within its scope and limitations as well as lawful order to rendered the law effective, issue cease and desist orders, impose a temporary or permanent ban on the processing of personal information, upon finding that the processing will be detrimental to national security and public interest, compel or petition any entity, government agency or instrumentality to abide by its orders or take action on a matter affecting data privacy, monitor the compliance of other government agencies or instrumentalities on their security and technical measures and recommend the necessary action in order to meet minimum standards for protection of personal information. The Commission is itself mandated to coordinate with other government agencies and the private sector on efforts to formulate and implement plans and policies to strengthen the protection of personal information in the country, to publish on a regular basis a guide to all laws relating to data protection and publish a compilation of agency system of records and notices, including index and other finding aids. Likewise it may recommend to the Department of Justice (DOJ) the prosecution and imposition of penalties. The commission is also task to ensure proper and effective coordination with data privacy regulators in other countries and private accountability agents, participate in international and regional initiatives for data privacy protection, negotiate and contract with other data privacy authorities of other countries for cross-border application and implementation of respective privacy laws, to assist Philippine companies doing business abroad to respond to foreign privacy or data protection laws and regulations; and to generally perform such acts as may be necessary to facilitate cross-border enforcement of data privacy protection.

To me, the Republic Act 10173 or known as the “Data Privacy Act of 2012″ is very timely. Now is a good time for such law. Our country needs to update itself to the current changes of the world. Not only that it needed to be updated but also to ensure that situations be suitable and appropriate for it so that life, liberty and property of its citizenry will not be prejudice.

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What Now?

Society is reaping the results of our failure to give priority to life. What now? Children are growing contrary to god’s plan that is without knowledge what true love is. They lack basic understanding of what is supposed to be done. As a result thereof, we are improperly prepared to face issues of today. In the Philippines, the issue is noticeable. All roads lead back to the fundamental character of the Filipino and the dis-functional culture it spawned to the tune of a nation of 100 million. Filipinos are unable to control and police themselves. These kinds of performance expected of a modern society are simply beyond the intellectual reach of the average Filipino minds. It is evident in the way the simplest of rules and the most basic of courtesies simply escape the grasp of Filipino thinking. To such a society, the very modern privilege of freedom of speech and the right to elect their leaders have been granted. But questions remain as to whether Filipinos have truly earned these privileges.

The enactment of the Republic Act 10175 also known as the Philippine Cybercrime Prevention Act of 2012 became a celebrated event in our nation. It became a pre-new year celebrations for us! Filipino antagonists started, questioning people behind the said law. What now? They mocked some legislative personae. They are in the position that, the enactment of such law is, for protection of the administrators of the government against public disclosure of their shit! They protested publicly, through online forum and social discussion in the newspaper. For example, in a news column, a contributor expressed that, “unprecedented freedom, anonymity and democracy allowed by the Internet may have come to a screeching, crashing halt”) has caused quite an amusing hysteria in the online commentary community. ^[1] Some of the many antagonists brought the same to the judiciary and asked the high court concerning its applicability without disregarding basic constitutional rights. My perusal readings in the cyber world and in some newspapers, including reporters’ discussions after the aftermath one thing has quite evident amongst the social networker: they have been terrified by the passage of the law!

What now? Quite interesting to depict, are the reactions of networkers who, by evident dissatisfaction of the law personally disarmed some political figures. Even the law provides penalty against violators, they never hesitated bringing some comments against them. For example, a provocative statement by someone against the law, speak against a senator. I quote, “Heard [Philippine Senator] Tito Sotto was cruising a gay bath house in Quezon City last week. Spread your own truth about Sotto today!” and “Senator Tito Sotto is not only a plagiarist and misogynist, but he is also a coddler of rapists, drug dealers”. ^[1] Various networkers expressed their sentiments against the law saying “that who cares about this cybercrime law!?hindi pa rin maitatago ang KATOTOHANAN na ABNOY! BAKLING! PANOT! BAD BREATH (TALSIK LAWAY)! TAMAD at B0B0 si NOYNOY! hindi rin nila MAIKAKAILA na MAKATI pa sa GABING BICOL, MANGWAWASAK ng PAMILYA (mahilig KUMABIT!), MALANDI at MAY STD yang si KRIS AQUINO!” ^[3]

The outbreak of this kind of character, to me is too personal. This must not be done. We should learn to exercised rights granted by the government, in such a manner not injurious to others. Not the other way around. That is why I mostly admire Senator Santiago, for trying to come up a suggestion to push for the passage of a bill dubbed as anti-cybercrime law version 2.0 that would replace the controversial Republic Act No. 10175. In a way it may solve the impasse brought about by the passage of the law and to reasonably fulfill the purpose of the law for which it was in the first place created. The purpose of the law is express in section 2 of R.A. 10175. ^[4] Santiago said her Senate Bill 3327, known as the Magna Carta for Philippine Internet Freedom (MCPIF), will guard the rights and freedoms of Filipinos in cyberspace, while defining and penalizing cybercrimes. While it is important to crackdown on criminal activities on the internet, protecting constitutional rights like free expression, privacy, and due process should hold a higher place in crafting laws,” she said.

Is the proposed bill better than the law passed? What now? The antagonists argued that the law, the Cybercrime Prevention Act of 2012 or Republic Act No. 10175 threatens our basic rights and freedoms. This law works against ordinary citizens, bloggers, freelance writers, website owners, social network users and disregards, among other things, our right to privacy and freedom of expression.

I agree with Senator Santiago that the bill being push be her is quite better than the other. Here are my reasons:

First, the policy of MCPIF does not suffer from over breadth and vagueness. It expressly affirmed the rights contained in the Constitution and guarantees its observance and protection. This confirmation is not present in the said law. It likewise acknowledge the potential harm which the internet may bring, which she herself coined as cyber weapons, which to her is inimical to national interest. I quoted (some portion of section2), the State reaffirms its renunciation of war as an instrument of national policy. Therefore, consistent with the national interest, the State shall pursue a policy of “no first use” of cyber weapons against foreign nations and shall pursue a policy of cyber defense, and shall endeavor to develop plans, policies, programs, measures, and mechanisms to provide security for Internet and information and communications technology infrastructure for and in the defense of the Filipino people.

Secondly, R.A. 10175 violates the right to privacy and the Constitutional guarantee against illegal search and seizure through allowing the warrantless real-time collection of traffic data. Section 12 ^[5] of the law is not clear when may be the real time to collect on such potential data. Although the section produced, enumerate the elements when this section is applicable, the wordings of the said enumerations is ambiguous that would lead a reasonable man to evident mistakes. In contrast, the MCPIF ensures due process by providing strict guidelines for any collection of any data, including the securing of warrants, obligating notification, and limiting seizure to data and excluding physical property. Santiago’s bill differed from R.A. 10175 as it guaranteed the right against illegal searches and seizures. The internet rights and privileges ⁶ are contained in articles 4-12 of the proposed bill. A feature outstanding in the proposed bill is the acknowledgment of the internet as an open area, where ideas is shared and passed. The law contained no provision in this respect.

Thirdly, the MCPIF authorized government agencies to provide security for the data they collected from citizens to ensure their right to privacy. This provision is absent in the law signed by President Aquino. As an illustration, The dangerous ‘takedown’ clause of R.A. 10175 where the government may have a website or network blocked or restricted without due process of law, is not present in the MCPIF. The bill provides for court proceedings in cases where websites or networks are to be taken down, and prohibits censorship of content without a court order. It connotes that the judicial power to decide any existence controversy pertaining to the subjects covered by the law is retained by the courts and courts alone and not to be transfer to any government agencies which are not competent to decide the case.

Fourth, the MCPIF did not curtail the freedom of expression via internet. This is expressed in section 8 of the bill. It provides that the State shall, within its jurisdiction, protect and promote the freedom of speech and expression on the Internet. In connection thereto, The State shall, within its jurisdiction, protect the right of the people to petition the government via the Internet for redress of grievances. The State shall, within its jurisdiction, protect the right of any person to publish material on or upload information to the Internet. This right as granted by the constitution was never touch by the legislature.

Fifth, the MCPIF also prohibits double jeopardy. R.A. 10175 allows double jeopardy through prosecution of offenses committed against its provisions and prosecution of offenses committed against the Revised Penal Code and special laws, even though the offenses are from a single act. Double jeopardy is a prohibition against second prosecution after a trial for the same offense. The evil sought to be avoided is the double trial and double conviction and not the double punishment. Right against such cruel punishment is being affirmed in the bill proposed by Senator Santiago.

Sixth, Santiago’s bill also seeks to clarify the mandate and organization of the proposed Department of Information and Communications Technology (DICT), the creation of which is currently pending before Congress. Because of the broad range of responsibilities related to the enforcement of laws governing ICT, a department-level office should be established and its functions and jurisdiction should be clear-cut. There is no said the matter concerning the new law. To me, there must be a clearly established body that oversees the enforcement and applicability of law. A body which its primordial concern it to see to it, that, the law is use to fulfill its function and not otherwise. In connection thereto, the MCPIF prepared the proposed DICT, law enforcement agencies, and the military with provisions for handling cybercrimes. Section 47 of the bill provides amendments to the AFP Modernization Act to ensure the country has weapons and defenses against cyber-attacks by terrorists, violent non-state actors, and rogue or enemy nation-states. Cyber-attack means An attack by a hostile foreign nation-state or violent non-state actors on Philippine critical infrastructure or networks through or using the Internet or information and communications technology. The term may also be used to mean an assault on system security that derives from an intelligent threat, i.e., an intelligent act that is a deliberate attempt to evade security services and violate the security policy of a system. Also, the bill’s Section 48, on the other hand, mandates the Philippine National Police and the National Bureau of Investigation to combat cyber terrorism. It is proper to recognize that child pornography, child abuse, and human trafficking can be committed through the internet, as much as hacking, piracy, and copyright infringement. Santiago’s bill also enables the country to harness ICT for national development by ensuring government agencies are keeping up with the realities of and advances in information technology, such as those involving consumer welfare and copyright laws.

Seventh, if passed into law, S.B. No. 3327 will be the first law to be created through “crowdsourcing.” Crowdsourcing is an online process of getting work done by tapping people on the Internet who volunteer their talent and skills. This is not tackle even by glance in the law. This is an emerging epidemic in the internet and lastly,

“The MCPIF does not suffer from over breadth and vagueness in its provisions on libel, unlike the law it tries to replace. The law provides that, the unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. In fact, it treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel.

Although the proposed bill quite long, to me it is better than the law. I suggest that it be acted upon, in order that to safeguard the law will bind us all. And to stop the inimical dialogue amongst man concerning the unconstitutionality of the law, let us be reminded that, legislature are also humans such that, they are may insist on setting up standards which may in the end violates any right, this is not a permission upon us to mocked them. They are also entitled to what we post on our blogs or on our pager, or in the new column, which is due process. No one is above each other.

Freedom and right must not be curtailed. That slogan, are cries of all walks of life and yet, they remain useless in my ears. It must not be a one way thing to do! Government and its inhabitant must do their stuffs. No one is to be blame. We must resolve to follow the uniform standard to keep up with the rest of the western world and put order in our communities. We cannot continue to run our organizations or communities like the Wild, Wild West and expect progress to happen.

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Endnotes

[1] MANILA STANDARD ARTICLE by Jojo Robles,

[2] Carlos Cledran, on his TWITTER

[3] The latest outrage fad: Protests against the new Philippine anti-cybercrime law have become personal. This article is posted by one Benigno on September 19, 2012.

[4] SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

[5] SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

[6] A right that, when granted to an entity, permits the entity to perform a privileged access that is the completely unrestricted access of a user to the resources of a device, computer, system, or network, and the privileged control which means The completely unrestricted ability of a user to use the resources, modify the configuration, and otherwise exert a directing influence on the operation of a device, computer, system, or network.

Ocampo, Jaden

SY 2012-2013, Second Semester

• How does Republic Act 10173 affect me? Is there benefit or flaw in the law?
• RA 10175 and the Magna Carta for Philippine Internet Freedom

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How does Republic Act 10173 affect me? Is there benefit or flaw in the law?

As I sit in front of the computer trying to figure out how I would answer these questions, I assessed myself, am I pro to this new law? The title helped me sort out my confusion – “An Act Protecting Individual Personal Information In Information and Communications System in the Government and the Private Sector, Creating For This Purpose A National Privacy Commission, And For Other Purposes.”

Honestly, I asked myself, “What the heck is this?!” “What does it REALLY do?”

It might be a wonder to many why this sound out of this world to me, well, for everybody’s information, I am not a computer GENIUS… yes, I am literate as it is noticeable I am able to type, and send this blog. But it does not follow that I understand everything that I do NOT do – obviously, I don’t do it because I do not intend to, and I don’t want to commit mistakes. Like the use of facebook, twitter, blog or however else any modern person of this era will want to communicate and reach out to many souls as easily as sending their messages without having to do it the old fashioned way… such as : letter-writing (as in like IN THE TESTATOR”S OWN HANDWRITING!), notice messaging via any post office, LBC, JRS or even the FedEx. Well I do that still. Am still in the Jurassic era, if that is how it is called nowadays. I prefer to commit less mistakes- with that, it is less headache. If modernity through technology will complicate my already complicated life, then I prefer to live in the Jurassic era where things are a little slower but less risk. HOWEVER, am now putting my opinion on a blog-seems like I have no choice. But, I understand why I need to be tech literate- as this not only refer to tech geniuses but in the profession that I intend to be a part of a few years from now. I must understand how it works- you know this techy thingy majigs!

First question : How does the law affect me intimately?

Skeptical!

The law says, xxx to protect the fundamental human right of privacy xxx

First, can this law protect me from invasion of my privacy? This law will be tested only when the harm is done already… and my privacy has already been violated.

Second, this law came about when there was already breach of this so-called privacy.

What it only does is that it serves as a warning to those who are in possession of any personal information about an individual. Just like any other law, it gives warning only, not a full-proof protection of what it seems to impart to the netizens.

Before anything else, it is important to know how and where our personal information go as we send them. It is a worldwide web out there!
I have watched a movie where a person’s personal information was used by another individual pretending to be her and the very ones who caused this trouble are the ones in the government! It may be JUST A MOVIE, but come to think of it, it can be anybody else’s reality once our information has landed onto the hands of the crooks. It is not sci fi, it is a fact!

On the question, “how does it affect me intimately?” it scares me because I know there is nothing in this world, not even a law, can protect me 100%. But, I reserve some respect to this law- 50% max that at least, when my privacy has been violated, there is a basis for my cause of action. It will somehow give me the relief needed by a netizen knowing that I am not totally abandoned in my quest for privacy, even just a little.

One look at the language of the law, it seems encompassing, full-proof.. that any violation regarding my privacy, the National Privacy Commission is there to seal my wound. But as I read it again, just like our courts, it is just there to help a little, impose a big fine upon those guilty as we say – IF PROVEN. What if not? Then we leak our own wounds.

Second question : Is there benefit or flaw in the law?

Section 4 of the topic law provides,

Scope- “This Act applies to the processing of all types of personal information and to any juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines, subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.”

However, there are exceptions, meaning, there are circumstances that this law does not afford protection to. Reading those that are not included from protection of this Act, I find it justifiable, rightly excluded , and fair enough as there are many in our jurisdiction who take refuge in our own laws to circumvent the spirit of it and take it to their side and escape penalty in broad daylight. An example of this is the Secrecy of Bank Deposits Act which, as divulged through the media in many events, are taken as shield by those seated in power. But this RA 10173 will somehow tame the abuse of Secrecy of Bank Deposit Act.

Section 16 – Rights of the Data Subject –

When I read the contents of this particular section, it does not cover all that can be given as a right to one data subject. When an information is asked, the system does not accept what is entered into if the data subject omits some information he or she would want to skip – simply, for fear of violation or breach of privacy. So, the right to skip, omit for purposes of protection is not respected.

(f)Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

Under normal circumstances, this does not have any tooth in regard any damages filed by a data subject. More often than not, this leak or unauthorized use of personal information usually goes ignored and hard to prove as to who the culprit really is. And Filipinos as we are, we often let it go as any suit will only take our precious time, moreover, costly.

Section 21 Principle of Accountability –

(a) xxx

(b) The personal information controller shall designate an individual or individuals who are accountable for the organization’s compliance with this Act. The identity of the individual(s) so designated shall be made known to any data subject upon request.

The above section is not yet tried. Say on jobstreet.com, it is system generated. All it does is get an information of data subject. It cannot even be asked. It is a one-way trip to Ohio where I GIVE DATA, IT RECEIVES DATA, AND I JUST WAIT WHAT HAPPENS NEXT.

Section 25- Unauthorized Processing of Personal Information and Sensitive Personal Information- (a) The unauthorized processing of personal information shall be penalized by imprisonment ranging from one (1) year to tree (3) years and a fine of not less than Five Hundred Thousand Pesos (500,000) but not more than Two Million Pesos (2,000,000) shall be imposed on persons who process personal information without the consent of the data subject, with or without being authorized under this Act or any existing law; (b) The unauthorized processing of personal sensitive information shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine not less than Five Hundred Thousand Pesos (500,000) but not more than Four Million Pesos (4,000,000) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

Oftentimes, when a law has been passed, we look into the scope- we see to it we are not subject to it, and if we are, we take precautions. Next thing we look upon is the penalty. Section 25 is securing that this law will be implemented properly basing on the imposition of fines which are quite high as compared with other laws. What I do not read from any of the penalty provisions is the penalty in case of insolvency of the data or personal information controller.

Section 26 – Accessing Personal Information and Sensitive Personal Information Due to Negligence – (a) accessing personal information due to negligence shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (500,000) but not more than two million pesos(2,000,000) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law; (b) Accessing sensitive personal information due to negligence shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine not less than Five Hundred Thousand Pesos (500,000) but not more than Four Million Pesos (4,000,000) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

What I understand on this provision is that, say, I, an ordinary netizen, negligently accessed a personal information. Does this mean, any person? Like you and I? who, due to negligence, provided access to personal information? How will that happen? Educate me. Like when I tinker on my computer and upon doing such, I get an access code without really knowing and understanding it, and suddenly, wallahh! There appears the personal or sensitive information of another. I think this must be cleared- the language of the law is ”ACCESSING personal information” and “PROVIDED information xxx,”

which must be negligently done. There is no clear comportment as to how negligence is to be made so as to be held liable under this provision. Negligence must be accompanied by the intention and the surrounding circumstances that go about the so-called negligence. It does not come straight and alone, more often, it is not what we judge it is.

Have I understood PRIVACY the way this law would want me to?

What does PRIVACY mean? – a state of being apart from the company or observation of others; freedom from undesirable intrusions; esp. avoidance of publicity.

Article III BILL OF RIGHTS 1987 CONSTITUTION

Sec.3 (1) The privacy of communication and correspondence shall be inviolable xxx.

(2) xxx

Based on the penalties imposed and the functions of the National Privacy Commission, what I understand is that my right to privacy of any information sub-qualified into personal and sensitive information is as valuable as my own life that it is safeguarded like a precious gem.

Like any law, there are pros and cons for its enactment. There are advantages and disadvantages of Republic Act 10173, and as quoted from other sources, are as follows:

“The Advantages of this Act is that it aims to protect the individuals in personal information. the effects of this in our country’s e-Commerce security infrastructure, especially on the e-entrepreneurs. It helps the entrepreneurs in terms of their privacy when talking about the their business. On the other hand, R.A no. 10173 helps to prevent the theft of intellectual property and the privacy of each individuals.

The disadvantages of this act is that it minimizes the Information and Communications System generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or which data is recorded, transmitted or stored and any procedure related to the recording, transmission or storage of electronic data, electronic message, or electronic document.” ^[1]

“Benedict Hernandez, Director of the Business Processing Association of the Philippines (BPAP) and President of the Contact Center Association of the Philippines (CCAP), said the local BPO sector must and will abide by the new law’s provisions. It is also predicted to attract more investors as it is set to reinforce protection of private data.

In an interview, Hernandez also highlighted several uses and benefits of the law to the outsourcing industry and other sectors as well. He added that private information should be handled with outmost confidentiality.

Moreover, he said having reinforced data privacy processes will help pave the way for better business practices in companies and more opportunities in attracting potential investors. He reiterated that BPAP will strive to work with the government in implementing and establishing the provisions of the Data Privacy Law.”

“While the disadvantage of RA 10173 poses an equally if not more than alarming penalties not only for the long-time netizens but moreso for those who are newbies in using the internet or any kind of information technology media. Ordinary Filipinos, especially those who are computer illiterate, those with no access to, or seldom use the computer or any device that have the capabilities to store and transfer sensitive personal information may be prosecuted in courts of the Philippines due to improper handling of information or negligence.

“What alarms me the most are the penalty clauses stating that anyone can be penalized by imprisonment and will be fined in gargantuan proportions for accessing personal information of another individual or entity. Even if she/he did not mean to”. ^[2]

With all these presented – my preference for the old route, my need for what new techs offer just to be able to dance well with the fast paced life we have right now, it can be well said that this Republic Act 10173 is a balancer of the inevitable and its remedy.

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Endnotes

^[1] The Penguin English Dictionary, 2d Edition p.1108; Sec.3 Article 3 Bill of Rights; Lainemejos.wordpress.com, visited dec.1,2012

^[2] Kristinepetagra.wordpress.com visited dec1,2012

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RA 10175 and the Magna Carta for Philippine Internet Freedom

An Act Defining Cybercrime, Providing for the Prevention , Investigation, Suppression and Imposition of Penalties Therefore And For Other Purposes [ Republic Act 10175]; as against
An Act Establishing a Magna Carta for Philippines Internet Freedom, Cybercrime Prevention & Law Enforcement, Cyberdefenses & National Cybersecurity [SBN 3327]

First, it must be clarified that, before I continue on with my blog, I am inclined to dwell on neither side. My view is from a standpoint where people see it in black and white, unclouded by personal desires. Just plain and simple knowledge of the use of the internet.

I have read a running commentary on the Anti-Cybercrime Law, and they are not pointless to be ignored. Some articulate of their fight for their online rights before they may even be peddled, regulated, and scheduled away. It must be understood that the exercise of power in our physical world is rather a dangerous act as it entails more of what we can do rather than what we cannot do.

I have always believed that freedom comes with great responsibility. We are to be held accountable for what we say in print as well as online without really being suppressed of our so-called freedom. The barrier clouding our mentality to ever psych out the need to demarcate liberty from self-rule has to be deleted. In other countries such as China, “self-discipline” on the use of the internet is being rewarded, although it blocks content very directly, so does Iran; Russia does not directly block websites, as they simply introduce order to place the weight on the internet site themselves. However, not all regulations are applicable to all kinds of people. Those of what Russia, China and Iran implement may not be useful to our kind of people. But the common denominator of the aforementioned countries and the Philippines is that citizens ó government. It takes two to tango. We must admit, we tend to abuse the little power that we are granted, therefore, a little help from our government to tame us a bit will not hurt. I love freedom much as anyone else here on earth! So I must not be misquoted for saying that we need “a little help from the government.”

The internet, for all its good purpose, should help the good guys rather than the bad guys. But, for some reason or another, the bad guys tend to monopolize such good use and convert it to their glory, the ratiocination for the effectuation of the now questionable RA 10175 and its maybe replacement SBN 3327. It is somehow forgotten that the legitimate purpose of technology is to better our continuance here on earth and not to maneuver or enthrall us human beings. The government and technology work for the people and not the other way around.

It can be regarded that we are such in a sullen state because we cannot school ourselves that we need to be reproved by some law or laws. Discipline emanates from the person within and not from the castigation our government saddle upon our people.

What motivate people to do things? Perhaps, the urge to let their feelings flow through; the moment of emptiness that they so want to be filled with just anything. There is nothing wrong about going through any of these, in fact, these blogs, twitter or any social media effects, are one of the great geniuses of our time – where people come together, comment about anything; there is expansion of brilliant ideas; there is collective intelligence so to speak. The best part of all these is, it is for free! The positive side of blogging is that we have the citizen journalism where there is no need for formal training to be one. However, again, if there is positive side, there is always the dark side. Some say, it is very easy to fall in love with the internet. Really? When I heard this, I could hardly fathom if there is indeed any depth into that statement. Another is, the paradox of collective intelligence. The more ties we construct, the thornier it gets, the harder it is to be individualistic. Oh yeah!

President Noynoy Aquino III signed the Anti Cybercrime Law or RA 10175 on the 12th of September 2012, however, the Supreme Court discharged a Temporary Restraining Order for 120 days from the 9th of October to grant our Congress an opportunity to come about a substitute step.

RA 10175 sought to scourge cybercrime offenses such as spamming, identity theft, online pornography, hacking, online libel and other similar offenses committed through the use of the internet. This law has been reviewed, ridiculed and was given a chance but its objectives were not cogent enough in terms of freedom of expression, and of speech. People who are adept to the ins and outs of the internet enunciate their mettlesome sentiment about the provisions of this law.

In this law, the Department of Justice and not the court who investigates and castigates bad elements; collection of traffic data without warrant or court order is another flaw of this law. The other problem that this law presents is the Take down clause which is not well defined as there is a take down of computer data alone and taking down of a blog is another thing. The Department of Justice must secure a court order before the take down takes effect unless there is a clear and present danger that there could be no more waiting another second. The legal field employs the terminology “clear and present danger” as a standard to allow for the constitutional right of freedom of speech and expression be curbed. Tsk! Tsk!

This law that avow to protect us Filipinos against those who do us injustice though the internet is also threatening to march away our constitutional rights of freedom of speech and of expression. Tsk! Tsk!

On the Libel clause, it imposes a higher penalty which amended the Revised Penal Code because of the harmful nature of the internet if on the hands of a debauched internet user. One statement that is considered libelous and is posted, it becomes obtainable forthwith to everyone without obstruction and charge. A complainant who is libeled need be advanced as the new agency will not be capable of monitoring all the tweets, blogs or shout-outs in all networking sites. The good thing about this law, as they claim, is that when the person who commits cybercrime is outside the Philippines, he can still be held answerable since the person libeled may still file a case against its oppressor – and can still be arrested so long as there is a warrant against that person. As skeptical as I am, I wonder if this will be implemented as smoothly as it portrays to be easy.

Why it is a summon to all internet users to overrun too much use of the net in order to project selfish desires. Amen to that!

Here comes the SBN 3327.

One of the lady senators filed a bill crafting a Magna Carta for Philippine Internet Freedom that would take a crack supplanting the recently enacted but very controversial RA10175. It was argued that RA 10175 was unconstitutional because of its over breadth and vagueness to the effect of making some internet undertaking punishable. The bill filed seems to be more extensive providing not just disallowed acts and stern chastisement but more importantly, it assures the rights and protection of our netizens. This bill promises castigating internet libel and hate speech while it engenders freedom of speech and expression on the internet. On this proposal, the lady senator vouches for citizen’s rights against illegal search and seizure through letting the warrantless real-time collection of traffic data. It also warrants due process by catering meticulous guidelines for any data collection including the securing of warrants, obligating notification and limiting seizure to data while excluding the physical property. This bill likewise commands government agencies to procure security for the data they collect from netizens to ensure their rights to privacy. Also, there is no provision for ”take down clause” (which has raised a lot of questions in RA10175), instead, it provides for court proceedings in cases where websites or networks are to be taken down. There is also a provision wherein it prohibits censorship of content without first securing a court order. Said bill bars double jeopardy. On the Cybercrime law, it does not provide blockade for double jeopardy through prosecution of offenses committed against its provisions as well as those against the Revised Penal Code, Special Laws, considering the offenses are from a single act.

This bill grooms the propounded Department of Information and Communications Technology, law enforcement agencies, as well as the military with provisions for taking care of cybercrimes. It ensures that the country has suitable defenses against cyber-attacks by terrorists, violent non-state actors and rogue or enemy nations. The Philippine National Police and the National Bureau of Investigation are likewise directed to antagonize cyber-terrorism. There is a spadework for exploiting ICT for national development by assuring that government agencies hold fast with realities and advances in information technology like the copyright and consumer welfare laws.

SBN 3327 not only aspires to pitch into the protection of but also the institution of the rights of the internet users in our country. It is worthwhile noting that this bill claims to be escorted by the proficient, qualified knowledge in the IT and legal expertise. This bill is the first to be created through “crowdsourcing.” It says that in its drafting, a group of IT Specialist, software designers, bloggers, academics, engineers, human rights advocates, and lawyers were involved. They also claim that such draft was formulated through discussions in an open facebook group, email, google hangout teleconferences and twitter. It somehow pacifies the fear growing inside of me that my utilization of the internet will not land me into detention or be inflicted of hefty fines for simply letting out my sentiments unto the government, some public officials or some circumstances that are likely to happen to vocal people like me. Its quest is to implant a sensible, fact -oriented and stable environment that defends Philippine nationals against cybercrimes and cyber-attacks. It pursues to benefit netizens as they meet threats and challenges of piloting cyberspace.

For journalists, this could be favorable because it does away with imprisonment for libel through the internet as there only arise civil liability. Moreover, malice is not a presumption in internet libel in comparison with that punishable under the Revised Penal Code wherein such is presumed with every defamatory imputation if no good intention and justifiable motive is shown. As may have been raised by critical thinkers – a reporter being sued under both the Revised Penal Code and the Magna Carta if his article in print is also posted on the net and end up with two separate crimes. But it seems that SBN 3327 has foreseen this possibility of indicting a blogger with two charges in a single act. One of the lawyers behind Magna Carta said, that no journalist who has disputatious article published online and on a print is at risk of separate indictment.

On account of libel, it treats such only as a civil liability rather than a criminal act, as can be gleaned from my view, this is a step forward in the instigation to de-criminalize libel. However, it is not congruent with the libel punishable under the Revised Penal Code. This will become subject to questions later on as what should have been done first is to harmonize the two laws.

This bill, as the proponent sees fit, is anchored on rights, governance, development, and security upon which, qualms will arise, for sure!

Despite all the fears any netizen is facing with the enactment of the RA 10175 and the possible enactment of the Magna Carta, Philippine cyberspace is still unregulated and the need for one is calling louder. Yes, there are more priorities that our lawmakers should attend to, but this may become one of them if not given publicity right now.

In a country with more than thirty million internet users, how can cybercrime law be enforced in the Philippines? The enacted law and the proposed law are good push to resist cybercrimes, but, there is an exigency to take up any ambiguity or omission in a text through which its intent may be evaded. There are internet crimes which are vaguely covered or not at all, and this dilemma, for all we know, will not only create bigger problems that an amendment or repeal or imposition of another law may be needed, AGAIN!

Bloggers are beholden to what they say, comment, post, publish or whatever a social media user does. Yes, these SMU are not journalists as they are not trained as one, but when they nab the poncho of publicizing, they should be regarded and be burdened of the duty and responsibility of a journalist. They cannot excuse themselves simply because they are not licensed journalist thus leaving them unaccountable for the mess they created. Bloggers who are not in favor of being regulated by any outside law aside from their clout to their own morality, ascertain that even absent of any defining rules, a devious blogger may still be castigated by the community of bloggers through their comments online. But of course, there is no certainty as to the reprimand that an errant blogger is to be subject to if without any clear law that all social media users should abide. I see no reason to be uncomfortable about bloggers being regulated.

As what the government claims, the information and communications technology and the internet are drivers of economic growth, thus the country is all the more in need of a really adequate, competent and efficacious cyberlaw that will put to reality such a claim. Safeguarding our nation against cyber-attacks has become one of the nation’s topmost priority. To effectuate this objective, trained operations team must ardently protect against internal and external threats. And for those consummated attacks on our cyberspace, our defense must be adequate of kicking off follow-on attacks on internal networkers. Knowledge of actual attacks that have conciliated systems engenders the cardinal armature on which to erect sufficient defenses because our government agencies tasked to supervise such condition are not unlimited in budget, and the only sensible way to conform with these requisites is to entrench a baseline of information security device and controls that may be monitored without ceasing through automated mechanisms. It shall be understood that cyber attacks milk on the vulnerable areas in a project or program to procure entrée to other enterprise facility. The government agencies will surely continue to explore interconnectivity across agencies to improve its support upon its netizens and own operations. Defenses should center on addressing the most prevalent damaging attacks transpiring nowadays as well as those that likely to occur in the future. The government agencies assigned with this job must warrant congruous controls to effectively negative any attack. In short, a multiplicity of explicit technical activities must be assumed to bring forth a more consistent defense.

Another inconsistency I have encountered is on the government’s assumption of internet security when and well in fact, it cannot even secure its websites. Cyberspace has become the soapbox of the best and the unpleasant whatever that any person can think of. It should have a been a place at an opportune time to exchange ideas and artistic expressions if not for the cyberbullies that make it such an unhealthy environment to even bother visit.

I must admit that although I support a competent, efficient and unbiased cybercrime law, I am scared of what is laid before us after any of the two (RA 10175 and the Magna Carta) is in implementation. Until they are tested, I will not breathe in relief yet, if, after I have published and told the truth online, I won’t be damned. Most of the social media users are the young people and I bet they are not cognizant about the cybercrime laws so much so about its implications. These juveniles could be charged of libel even before they would even know its meaning.

As I have earlier stated, I do not promote the law and the bill. Until it is on testing ground, and has not in any way infringed my bill of rights granted by the constitution, then I will take side and succumb to whichever has preserved my freedom of speech and expression through the internet.

Bato, Randee Ceasar

SY 2012-2013, Second Semester

• How “Data Privacy Act of 2012” affects the life of every individual?
• Is the Senate bill introduced by Senator Santiago, relevant to Magna Carta for Internet User, a better law than the Cybercrime Law RA 10175?

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How “Data Privacy Act of 2012” affects the life of every individual?

RA 1O173 will give so much impact not just to me personally, but also to those people who are covered by this law. To begin with, personal information is defined as “any information whether recorded in material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information.”

We all know that personal information of a person reflects to the identity of a person, whatever details that are incorporated to that personal information must be properly managed and well handed, otherwise it may be used against and may destroy to the dignity and reputation of a person who owns such details.

It is a right of a person to secure his/her own personal information, and no one has the right to use it against him/ her. Although there are instances wherein personal information of a person may be used against him, provided that such use is in accordance and permitted by the law, otherwise it will constitute to a violation of his human rights, specifically his right to privacy.

Nowadays, some people don’t know the real meaning of right to privacy, because unintentionally and intentionally they tend to invade the privacy of others. They invade the privacy of others through unauthorized collection, gather and use of others information. Everyone is vested of its own Constitutional rights, however in exercising our rights, we should take into considerations some factors and limitations in order not to violate or invade the others rights. Every right that is vested by our Constitutions and laws correspond to responsibilities. For example, I have the right to privacy; I can exercise such right to others who want to invade my privacy. In the same manner, while others exercising their right to privacy, out of due respect, I must also observe their rights, by not intruding or any action that may constitutes a violation to such right.

It is very easy to get the personal information of others, because of the availability in the internet. Some people do not know that putting their respective personal information in the internet may be used against them, and they don’t even know that such information is unsecured. Some websites that provide the personal information of a person are, facebook, twitter, and any other social websites, however, the said websites do not automatically generate the personal information of a person, it relies on the end user of such websites, meaning, the end user may control a certain information that may appear in a definite website. Being an end user of a certain website, we must know as to what extent of information are we going to use and put in a website, only those information that are relevant to our purpose that should appear in the website, otherwise too much information that are not relevant to our purpose may be used by some that may destroy our reputation and personality as a person.

Sometimes we can’t control or secure our personal information because our respective employers have the control and management over it; they may give our personal information to those interested parties even without our authorization. By reason of a good consideration either money or anything that has a value in exchange for the personal information of the employee, the employer tend to offer to an interested party, even the fact that the said employer knows that it will constitute to a violation of privacy of a person who is the subject the of the swap over.

The law must provide a something that will protect our personal information through the rules and regulations and laws that our government must implement for the protection of every individual against to those violators of privacy.

Is it necessary for us to have a specific law that will manage and control the data processing. As we look at the old setting regarding the collection and distribution of information, anyone can access others information whenever they want, without observing the privacy of others in connection with their information. It is like saying, my information is open for everyone whether I give my consent or not, because anyone can access it and distribute it to those who need my personal information. This kind of set up which happened prior to the enforcement of the law (RA 10173) caused so many problems for the government and to individuals; it resulted to number of crimes in connection with the unauthorized gathering and collection of personal information of others.

Now that there is a specific law in regulating the personal data of individuals in information and communications system in the Government and private sectors, the RA 10173 or also known as “ Data Privacy Act of 2012” will strictly control the distribution and collection of personal information. The use of internet by the end users should be in line with the said law; otherwise there is a corresponding penalty in violation of the RA 10173.

The law has its specific coverage wherein the said law may be enforced, under section 4 it provides that “This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.” However, the said law is not absolute, meaning there are exceptions wherein the personal information may be retrieved even without the consent or authorization of the person subjected for the personal information retrieval. According to the law, this will not apply to the following circumstances:

a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.

According to the law, when this law is violated, there will be corresponding penalties to be imposed against such violators. The law provides that under section 33 “ Any combination or series of acts as defined in section 25 -32 shall make the person subject to imprisonment ranging from 3 -6 years and a fine not less than 1 Million but not more than 5 Million pesos “ . The penalties to be imposed are serious, considering the number of years of imprisonment and the value of fine that is why the people must take it into account.

The law provides for penal provision that will violate this law. The following are the different kinds of penalties as provided in RA 10173:

1.) The unauthorized processing of personal information or personal sensitive information – penalties are imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

2.) Accessing Personal Information and Sensitive Personal Information Due to Negligence – penalties are imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

3.) Improper Disposal of Personal Information and Sensitive Personal Information – penalties are imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

4.) Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes – penalties are imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.

5.) Unauthorized Access or Intentional Breach – penalties are imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.

6.) Concealment of Security Breaches Involving Sensitive Personal Information – penalties are imposed on persons who, after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission conceals the fact of such security breach.

7.) Malicious disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her.

8.) Unauthorized disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject.

The primary purpose of this law is to give security of the personal information of private individuals and also the public entities. I think this law is good, if it can be enforced properly and there must be strictly enforcement of this kind of law in order to attain its purpose. The law is created to provide a good effect and not deteriorate the life of individuals.

There are certain procedures and requirements to be followed in order to have a processing of others personal information without violating the right to privacy. A person has the right to be protected on his personal information, because it is vital to someone’s identity. Let us say there is no law providing for the protection of every individual in relation to their particular personal information, if the personal information of a person is not protected or secured, the tendency of it, such person with respect to his identity, he will have no preservation on his personal information, because anyone may access it and use it to their respective purposes, as a result the person is deprive to have his identity to be secured.

The enforcement of this law will give benefits not only to individuals but also to other juridical entities as well. Like in the case for Business Process Outsourcing (BPO) sector in the Philippines, the enforcement of RA 10173 will provide protection for the personal digital data of private and public entities, because no one can easily retrieve or get some information on private individuals and also the public personalities. If one person wants to have information of the private or public entities, it must be reasonable and the law allows him to do so, otherwise there’s no way he can retrieve such information without violating the law.

Because of RA 10173, it will give a better business practices in companies and it will also attract local or foreign investors, because they know that their investments will be protected in a manner that the said law will provide a full security. Personal Information of private and public entities is available anywhere in the internet. Even without the authorization of the owner of such information, you may access it through of the use of the internet, as long as such information is readily available.

In observance of this law, I personally in favour of this law, considering the advantages that everyone will get, not as an individual but also to other businesses that manage and have the control on information processing. If all the information is protected and secured by our government, it will lessen crimes that may occur and such crimes shall be properly monitored by the appropriate government agency.

The enactment of law may be bad for some, because those people can no longer access the information of others at anytime they want due to the fact that the law prohibits and provides penalties like imprisonment or fine, or it can be both depending on the gravity of the act in which the said law is violated. Come to think of the total effect of this law, it will definitely improve the life of each individual because of the primary purpose why this kind of law is enacted. It depends on a person on how he/she is going to interpret it, whether he/she takes it as a good law, or on the other way around.

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Sources:

http://www.gov.ph/2012/08/15/republic-act-no-10173/

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Is the Senate bill introduced by Senator Santiago, relevant to Magna Carta for Internet User, a better law than the Cybercrime Law RA 10175?

We all know that Computers have the power to make things easier, such as transmission of information, making things possible as the product of our imaginary minds, and other possible things we could ever imagine. The combination of computers with the internet give us the advantages to do things easily, however, for every advantage we get, there is a corresponding disadvantage also. Like for example, the dissemination of certain information easily can be considered an advantage, because we can easily disseminate information to respective recipients, but there is a disadvantage in the given scenario, like, it is true that we can disseminate information easily, but come to think of it, we can also destroy a person’s dignity or reputation by simply publishing false information against the person is concerned, at the same time we can also release false information anytime and anywhere at our own convenience. For every great convenience comes with a greater responsibility.

Observing the Cybercrime Law, known as RA 10175, and Senate Bill No. 3327, known as the Magna Carta for Philippine Internet Freedom (MCPIF), the expression of the Legislature is to protect the rights and freedoms of every Filipino in the world of cyberspace, by providing a corresponding penalty for criminal activities. However, the expression of the Legislature through passing a law, should be in accordance with the Constitutional rights guaranteed by the Constitution, such as right of expression, right to privacy and right to due process. The Constitution mandates these rights in order to protect the mankind, in cases there are abuses of authority on the part of the Congress in passing laws that will regulate and manage the people by the government.

If a certain law passed by the Congress which is not in line with the Constitutional rights guaranteed by the Constitution, such law or expression is not effective and it will constitute as in contrast as to what the law should be. The role of the Congress is very important in the government, because without Congress there will be no government.

The main function of the Congress is to craft laws and they should take into consideration the benefits that it will give to the Filipino People, and to protect their respective rights, however, such right must be regulated in order not to be abusive in exercising their rights. In regulating the rights of the people must be in accordance with the Constitution, so that it will not violate the Constitutional rights of people and the enforcement of the law will not become abusive.

Looking at the provisions in Cybercrime Law or also known as RA 10175 and comparing it in the provisions found in Senate Bill No. 3327 or also known as the Magna Carta for Philippine Internet Freedom (MCPIF), we can see the difference between the two;

According to Senator Miriam, RA 10175 is vague in its provisions in libel, while the proposed Senate Bill Senate Bill No. 3327 or also known as the Magna Carta for Philippine Internet Freedom (MCPIF) by Senator Miriam, it clarifies by treating the libel as a civil liability rather than treating it as a criminal act.

The RA 10175 provides criminalizing the libel by imposing an imprisonment and civil aspect, while in the latter provides a civil liability only without subject for imprisonment against the offender. The purpose of the bill is not to put the offender to double jeopardy, because it is a violation to our Constitution to subject a person to double jeopardy for a single act. Unlike in RA 10175, the libellous act of a person in the internet can be penalized by the said law without being prejudice the penalties provided by the Revised Penal Code and other special matters. To clear on the matter, the RA 10175 may impose penalties against the person who violates the provisions of RA 10175, at the same time can be also penalized by other laws for same act, unlike in the proposed bill, it is not applicable.

Another distinction between R.A 10175 and Santiago’s bill, it secures against illegal searches and seizures, unlike in R.A. 10175, wherein it violates the right to privacy and right against illegal search and seizure allowing warrantless in collecting information. While the Santiago’s bill, it guarantees due process in order to protect the Constitutional right of the person concern, and it provides rules, regulations, and guidelines in collecting a certain data. The Constitution provides a person has the right against illegal searches and seizures unless there is an order from a competent court.

According to Senator Miriam, her bill repeals the Cybercrime law, considering the Cybercrime law, may be considered as unconstitutional, as the Supreme Court has been suspended the implementation of the law through acting on at least 15 petitions questioning the constitutionality of RA 10175. The Supreme Court issued a 120 day Temporary Restraining Order in October.

The proposed Senate bill of Senator Santiago is addressing the certain issues or problems in RA 10175, known as Cybercrime law. It doesn’t mean that RA 10175 is not a good law, it is a good law, and however, there are things that need to be revised in the provisions of the said law in order to achieve a greater purpose of the law. Like in one of the provisions in RA 10175, giving the government the authority to restrict or block a website without due process of law. Such authority violates the Constitutional guarantee of due process, unlike in the proposed senate bill of Senator Miriam; it provides court proceedings in cases where the websites are subject for restriction or censorship.

In one of the provisions in the proposed Senate bill, it provides that “no person shall be deprived of internet access until and unless there is an order issued by a court of competent jurisdiction”. From this provision, we can see how the said bill upholds the Constitutional guaranteed right to due process as found in Section 1 of Article 3 of the 1987 Constitution, wherein it states that “No person shall be deprived of life, liberty, or property without due process of law”.

In contrast to one of the provisions in RA 10175, it says that “when a computer data is prima facie found to be in violation of the law, the DOJ has the power to issue an order to restrict or block access to such computer data”, in this provision it gives the government the apparent authority and the discretion to determine whether or not such computer data violates the law. The DOJ at its own convenience may exercise grave abuse of authority because of the fact that determination of violation lies on the discretionary power of the said agency.

Another flaw in one of the provisions in Cybercrime law, is that it allows double jeopardy through constituting a violation in its provisions at the same time prosecuting offenses in Revised Penal Code and other special laws, though the offense constituted a single act. It would be unfair on the part of the offender to be subjected to several penalties even though he only constituted a single act.

Under section 21 of the 1987 Constitution, it provides that “No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

As to the Constitutional guarantee, a person should not be placed under double jeopardy, unfortunately, the RA 10175 did not uphold this kind of right instead it stands against it.

The proposed Senate bill by Senator Miriam protects the Constitutional guarantee of freedom of speech and the right to express respective thoughts on the internet provided it is in compliance with the proposed senate bill by Senator Miriam.

The interesting part of the bill in giving the internet users especially the journalist the freedom to express their opinions or sentiments against the government without being subjected to prosecution or be held liable for their acts.

Conclusion

Knowing the differences between RA 10175 and the proposed bill by Senator Miriam, as per my opinion, the proposed Senate bill of Senator Miriam is better compare with the former, based on how it was crafted by Senator Miriam. However, considering that it is still a bill, it has no effect at all, only when such bill is raised and passed as a law.

We as Filipino people have the right to raise our own voices regarding how we want our rights to be protected and how things will be regulated by our own government. The passing of this senate bill into a law will not only benefit the present but also the future.

Laws that were passed by the Congress serve a big role in our economic growth, because the laws determine what should be regulated and restricted. If the laws were crafted well, it will help the economy grow; as a result it will also help the people.

References:

1987 Constitution

http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet

http://www.gov.ph/2012/09/12/republic-act-no-10175/

http://www.senate.gov.ph/lisdata/1446312119!.pdf

Bautista, Diana Roselle

SY 2012-2013, Second Semester

• OUR RIGHT to privacy
• Is SB 3327 the Answer to our R.A. 10175 Woes?

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OUR RIGHT to privacy

In view of the State’s avowed policy to protect the human right of privacy of communication, Congress enacted the Data Privacy Act of 2012, which was approved by President Noynoy Aquino in August of this year.

WHAT IS THE “DATA PRIVACY ACT OF 2012?

The “Data Privacy Act of 2012” seeks to strike the proverbial balance between privacy of communication and the free flow of information by regulating the processing of personal information and generally prohibiting the processing of sensitive personal information subject to certain exceptions.

The law defines “processing” as “any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.” While “personal information” is “any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.” Examples of personal information would be one’s full name, social security number, telephone number, home address, parents’ names, and the like.

Personal information is considered “sensitive” if it is (1) about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations; (2) about an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings; (3) issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and (4) specifically established by an executive order or an act of Congress to be kept classified. The processing of these kinds of information is prohibited except in the instances specifically provided for under the law.

The law also enumerates the rights of a “data subject”. A “data subject” is an individual whose personal information is processed.

Another significant aspect of the law is that it prohibits and penalizes the following acts:

(1) The Unauthorized Processing of Personal Information and Sensitive Personal Information;

(2) Accessing Personal Information and Sensitive Personal Information Due to Negligence;

(3) Improper Disposal of Personal Information and Sensitive Personal Information;

(4) Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes;

(5) Unauthorized Access or Intentional Breach of any system where personal and sensitive personal information is stored;

(6) Concealment of Security Breaches Involving Sensitive Personal Information;

(7) Malicious disclosure of unwarranted or false information relative to any personal information or personal sensitive information;

(8) Unauthorized disclosure of personal information;

(9) A combination or series of the above acts

THE WILLING DATA SUBJECT

In the information age, such as the one we are in, everybody could be or is a “data subject”. The information age, so-called because of the proliferation of and rapid advancements in information and communication technology making information quite literally at our fingertips, moves members of the “Me” Generation to be willing data subjects. In fact, what first struck me about this law is how much information we share on the internet that could properly be considered as personal and sensitive personal information.

It is very likely that one need not go beyond our Facebook page to know our full name, age, and marital status. Just a little more snooping around someone’s Facebook wall and you’re bound to find out the owner of that wall’s parents’ names and where he/she went to school. A few more hours on that same wall and I’m pretty sure you’ll find there the exact date when that person was down with the colds or found out she had dengue. You might even find that not a few netizens find pleasure in posting details of their sexual life. These are all personal information and sensitive personal information that the Data Privacy Act of 2012 seeks to protect from the abovementioned acts. And this is just Facebook, who knows how much more information we’re sharing about ourselves on the internet?

The “Me” generation wants an “audience”. We can justify our need to share these information on the World Wide Web. We sometimes call it networking. We sometimes call it marketing. We call it “keeping in touch”. We call it being well-informed. We can even call it a refuge from the stress of our everyday mundane life; after all, in the World Wide Web we are all celebrities. But it all boils down to the question, “what happens to the information we put out there?” An interesting line from an American series on the FBI’s Behavioral Analysis Unit, “Criminal Minds”, is ominous, “THE INTERNET NEVER FORGETS” ^[1].

So yes, we may forget a lot of the things that we post on the internet but the internet won’t. What we put out there remains out there and we can hardly control how that information, which we so willingly shared with the world, will be used.

To my mind, in divulging so much personal information about ourselves and generally eradicating the line that separates the personal from the public, we are not just risking the unauthorized use of these information, we are risking our very own safety and security. It doesn’t need a tech-savvy criminal to find a way to use, to our detriment and harm, the information he/she can get about us off the internet.

After several readings of the Data Privacy Act of 2012, the moving power behind the law finally sank. And I found it quite unsettling to know that with the very information that I post on the internet I am thus making my life accessible to any Pedro or Juan who has access to the internet.

However, while I salute the government for recognizing this malady and trying to do something to protect its citizens, I get this nagging feeling that the government may have overstretched their good intentions and created a monster.

HOW DO WE POLICE THE WORLD WIDE WEB?

Does the Philippine government now have the sophistication to enforce the provisions of the Data Privacy Act of 2012? Do they have in place rules and regulations that appreciate the intricacies of the internet and of social media? If this law is any indication, I’d say the answer is in the negative.

If, say, we “Like” or “Re-post” a post on Facebook regarding a friend who announced that she had the colds, have we now committed an “unauthorized processing” of sensitive personal information, which act could subject us to “imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00)”? With the wealth of personal and sensitive personal information on the internet how do we now ensure that our actions do not constitute a violation of the Data Privacy Act of 2012? How do we ensure we remain within the bounds of the law?

Personally, I believe the law stands the test of necessity. I believe that there should be a law that protects our personal information. However, I am extremely skeptical of its effectiveness in protecting the right it seeks to protect and penalizing the acts it seeks to correct. I will not be surprised to know that very few “data subjects” are knowledgeable of their rights under the Data Privacy Act of 2012. I am also quite certain that, given our general lack of familiarity with this new law, taken together with the vagueness and overreach of the provisions, we could very likely be both victim and violator at the same time.

Atty. Jose Jesus Disini, “a legal expert on information technology” himself, had this to say about the law, “it is difficult to understand what its saying, and I had to read it four to five times before I had a framework on how it works” ^[2] (http://pcij.org). If a known legal expert is having a hard time understanding the Data Privacy Act of 2012, I do not see how the billions of Facebook users and other netizens could ever be faulted for their lack of understanding of this law. If “ignorance of the law excuses no one from compliance therewith” then we’re in big trouble, my fellow netizens and Facebook/Twitter/other social media users.

It is true that rights mean nothing until we fight for them. But how do we fight for a right we do not know nor understand? It is quite possible that our rights under the law has already been or is currently being violated but without knowledge and understanding of our rights, we may be hard-pressed to enforce them and petition the government and the courts to bring the violators to justice.

Therefore, if anything, the law succeeds in inspiring vigilance over the information we put out there. However, the law is equally effective in discouraging the use or access of any and all forms of social media. Which brings me to an interesting point, the irony that is the Data Privacy Act of 2012.

KILLING THE RIGHT IT SEEKS TO PROTECT

The Dr. Jovito R. Salonga Center for Law and Development of the College of Law in Siliman University, in their website, defines the right to privacy as “the right to be left alone” ^[3] (http://salongacenter.org). Many netizens, however, might feel that it is exactly their right “to be left alone” which the law curtails. Immersed as we are in this “Me” Generation wherein everybody is looking for an audience it might take a little stretch of imagination to understand why the information that the law seeks to protect NEEDS to be protected.

Furthermore, because of the vagueness of it provisions, its metes and bounds are not well-defined, so to speak. This creates a dangerous scenario, possibly more dangerous than the evil it seeks to slay. Atty. Disini describes the law as “more encompassing” than the infamous “Cybercrime Law” “in how it regulates the flow of information.”

Thus, we find here a classic case of desiring one thing and achieving the complete opposite thereof. While the moving spirit behind the law is commendable enough, if stripped to its bare policies the law could in fact turn out to be the very curtailment of the right its seeks to protect.

OUR FIRST LINE OF DEFENSE

Given the foregoing, I submit, therefore, that our first line of defense against the unauthorized access and use of our personal information is still the responsible use of the internet and social media. It is our bounden duty as actors in the World Wide Web to ensure the security of the information we put out there. It is first and foremost the duty of the source, the data subject. to make a conscious decision to sift which information is to be shared, to whom, how, when, and where.

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Endnotes

^[1] Criminal Minds – Season 5, Episode 22: The Internet Is Forever; Original Air Date: May 19, 2010

^[2] http://pcij.org/blog/2012/09/28/cybercrime-data-privacy-acts-a-double-blow-for-netizens

^[3] http://salongacenter.org/2011/07/right-to-privacy/

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Is SB 3327 the Answer to our R.A. 10175 Woes?

On 12 November 2012, Sen. Miriam Defensor-Santiago, filed Senate Bill 3327, “An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement, Cyberdefense and National Cybersecurity” or the “Magna Carta for Philippine Internet Freedom”. Said law is touted as the much-improved version, and is set to replace, the embattled Republic Act No. 10175 or the “Cybercrime Prevention Act of 2012″. The big question then is, “is this proposed law actually a better one than the TRO’d R.A. 10175?”

Ratio

Let us begin by understanding the rationale behind laws/bills that seek to “police” cyberspace.

Act No. 3815, as amended, more popularly known as the Revised Penal Code (RPC), took effect on January 1, 1932. Back then, the Bill Gates and Steve Jobs of the world were only beginning to “produce a machine that can perform automatic calculations and is programmable” ^[1]. In other words, our 1930s lawmakers could not have contemplated computers, or certainly not the computers of today, when they enacted the RPC. They could not have foreseen the far-reaching effects and ubiquity that these machines would achieve some eight decades later. They could not have foreseen the rise of the information and communications technology (ICT) and the power and influence of the Internet.

Thus, our RPC has not provided for penalties for violations of rights committed with the use of a computer or through the internet. And following the Latin maxim, nullum crimen, nulla poena sine lege, which means “there is no crime where there is no law punishing it”, without a provision in our law penalizing computer- or internet-related violations of rights then there is no crime and the victim is, at least under our penal laws, without recourse (they can always, of course, file a civil case).

Such a deficiency in our penal laws coupled with the ease afforded by the ICT and the Internet to commit crimes and evade detection is said to be the raison d’être for laws such as the Data Privacy Act of 2012, Electronic Commerce Act of 2000, and the more recent Cybercrime Prevention Act of 2012, and even the proposed Magna Carta for Philippine Internet Freedom.

President Benigno Aquino rationalized the enactment of R.A. 10175 with the oft-quoted line from Eleanor Roosevelt, “With freedom comes responsibility”. ^[2] This new law “establishes a legal framework to identify, investigate, and punish crimes committed through online and computer platforms” ^{[3]. In his sponsorship speech of said law, Sen. Edgardo Angara reminded us of the incident sometime in May 2000 when the Philippines gained notoriety after “one of the most destructive viruses of all time was traced to a then 23-year old computer science dropout in Manila” [4]. The infamous “I LOVE YOU” virus caused US$10 billion in software damage and lost businesses and spread to over 55 million computers worldwide. However, since there was then no law governing such activities, “we were unable to bring to justice a wrongdoer who caused harm to millions of people and companies around the world” [5]. In July 2000, the Electronic Commerce Act of 2000 was enacted to fill this void in our legislation but “eleven years later, the rapid rate of technological development has outpaced our capacity to effectively police a borderless realm” [6]. Thus, says Sen. Angara, “Internet usage has skyrocketed in the absence of any appropriate legal framework” [7]. Under this backdrop, he paints an ominous picture, “30 Million Filipinos who use the Internet regularly can become the next victim of cybercrime” [8].}

Others are of the opinion, however, that the real reason behind the enactment of laws such as R.A. 10175 is the strong BPO lobbying in the country. It has been said that the BPO industry has received demands from their foreign clients for a “strong legal environment that can secure their data from being stolen and sold” ^[9].

Regardless of what our lawmakers’ motives are for passing R.A. 10175, I am of the opinion that a “Cybercrime Law” is long overdue. Cyberspace is a fertile ground for violations of people’s rights and victims of such violations must be given recourse in law. Our rights must be protected, wherever we may be, yes, even in Cyberspace; for in using the Internet and becoming a resident of Cyberspace we do not then shed our integrity and our rights as human beings. Otherwise put, being a participant in Cyberspace is not a license for other such participants to violate my Constitutionally-protected rights.

The more bloody discussion then is the “HOW?”.

What is “wrong” with R.A. 10175?

Our legislators have attempted to answer the question of “how do we ‘police’ cyberspace?” with the enactment of R.A. 10175. However, if the uproar that met such law is any indication, it seems this was a case where the cure was worse than the disease. Protesters left and right assail the law’s vague provisions whose net effect, it is claimed, is a “chilling effect” upon the freedom of expression. In particular, some of the contentious provisions of the law are:

Sec. 4(c)(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

The law’s provision on on-line libel has met rigorous opposition. On the one hand, it is attacked for being inconsistent with the Philippines’ state obligations under the International Covenant of Civil and Political Rights (ICCPR) in light of the UN Human Rights Committee’s considered view that “criminal libel in the RPC is incompatible with freedom of expression” ^[10]. Other camps are attacking the said provision for its lack of a clear definition of the crime of libel and the persons liable so that virtually anyone and everyone can be charged with a crime “even if you just like, re-tweet or comment on an online update or blog post containing criticisms” ^[11].

Personally, I do not believe that there is anything to protect about libelous speech. The children’s rhyme “sticks and stones may hurt my bones but words will never hurt me” is not entirely true. A person’s honor and reputation so valued and painstakingly built for years can very easily be destroyed by a malicious and derogatory comment. The risk is multiplied a million-fold considering how a statement/comment can spread like wildfire with such ease and speed through the Internet. The problem, however, is that the definition of libel under the RPC, from which the definition of on-line libel is based, is so worded that it does have the effect of suppressing Constitutionally-protected speech. It does inspire the exercise of prior restraint. With most people unable to determine when their statements could be considered libelous, the law could effectively silence even legitimate grievances.

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. xxx

This provision is problematic because the law does not provide for a definition or mechanism for determining due cause. As has been pointed out in our Technology and the Law class, a law that infringes on the right to privacy, such as the above provision, should be narrowly construed but here there is nothing to construe. This provision could easily be abused, either intentionally or negligently, by law enforcement authorities. Instead of protecting people’s rights it could actually bring about more violations of such rights.

Sec. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

At first blush, the above provision seems innocuous enough. After all, it provides for prima facie determination which is not inconsistent with the due process clause in our Constitution. However, again, our discussion in our Technology and the Law class has brought to fore the problem with this provision. A prima facie evidence is “that which is standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed” ^[12]. Under the Rules of Court, a prima facie evidence that is not rebutted or controverted will be given due course. This is what makes the above provision questionable because the law failed to provide for a mechanism or procedure by which owners of computer data may present rebuttal or controverting evidence.

To summarize what I have to say about R.A. 10175 is that: it is (1) vague and (2) it violates the right to due process. It failed to define the parameters of certain important concepts and failed to lay down the procedure for the protection of our right to due process. Reading this law felt like reading a “framework” or a “draft” of a law. It appears that many of the issues it sought to address and many of its provisions have not been completely fleshed out. The law felt “unfinished”.

That being said, as to the question of whether SB 3327 is better than R.A. 10175, I answer in the affirmative. Here’s why.

Salient features of SB 3327

Sec. 33. Internet Libel, Hate Speech, Child Pornography, and Other Expression Inimical to the Public Interest

Yes, there is still a provision on Internet libel, which works for me. As I have pointed out above, I believe there should be one. However, unlike its predecessor, the provision on Internet libel under SB 3327 has more specifically defined which acts are punishable and which are not. Under Sec. 33.A.2 Malice as an essential element of internet libel, it went a step further than the definition of liber under Arts. 353 and 355 of the RPC by defining more precisely the element of malice in Internet libel. The proposed law also makes the positive identification of the subject an essential element of Internet libel (Sec. 33.A.3), which to my mind is an added safeguard against possible abuses of the provision on Internet libel. Even better, the law has enumerated the acts which would not constitute Internet libel. As it stands, this enumeration seems comprehensive enough to cover Constitutionally-protected free speech. The proposed law also establishes Truth as a defense, to wit: “Internet libel shall not lie if the content of the expression is proven to be true, or if the expression is made on the basis of published reports presumed to be true, or if the content is intended to be humorous or satirical in nature, except if the content has been adjudged as unlawful or offensive in nature in accordance with existing jurisprudence.” (Sec. 33.A.5). These provisions should assuage the fears of netizens in regard to Internet libel’s proneness to abuse.

An entirely new provision in the proposed law is that on Internet hate speech, which should be applauded. Hate speech is that which includes “communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation” ^[13]. While Internet hate speech is currently not a particularly big problem in the Philippines, the proposed provision demonstrates foresight and will serve as, hopefully, a sufficient deterrent against any such future acts.

Privacy: Defined

The proposed law has also specifically defined “Privacy”, which definition goes a step further than that guaranteed and protected by the Constitution to include “informational self-determination”. “Informational self-determination” is a person’s right to “determine what personal data is disclosed, to whom, and for what purposes it is used” ^[14]. This is an important concept that is often overlooked. There appears to be a general belief that we lose the right to the personal information we put on-line. The same is not true, of course, and we have R.A. 10173, the Writ of Habeas Data, and now this proposed law to assure the public that if their right to informational self-determination is in any way violated the law has given them ample remedies.

Also included under the right to privacy protected by this law is that of ensuring that “information is not disclosed to anyone other than the intended parties”. This is usually included in contracts as confidentiality clauses and will now, if SB 3327 is approved, be put into law and read into every contract and transaction.

Sec. 8. Right to freedom of speech and expression on the Internet

Another commendable provision of the bill is that on freedom of speech and expression. Although admittedly, the 1987 Constitution’s provision on freedom of expression should be broad enough to include speech and expression on the Internet, this provision in SB 3327 puts in place a mechanism and standard for preventing the abuse of such rights. Thus, while every person has the right to publish material on or upload information to the Internet, the State and/or person adversely affected by the exercise of such right is not without recourse. The exercise of one’s rights are not always without consequences injurious to other people’s rights; thus, we have the principle of abuse of rights found under the Civil Code. In recognition of this truth, SB 3327 empowers the State to restrict access to information on the Internet or to remove published material or uploaded information from the Internet but only under specific conditions found under Sec. 8(4)(a).

Sec. 12. Protection of Intellectual Property and SOTTOing; Sec. 20. Content Fair Use

The past year saw multiple charges of plagiarism against Sen. Tito Sotto, prompting his chief of staff, Atty. Hector A. Villacorta to come out and admit copying from a U.S.-based blog for the senator’s speech. Atty. Villacorta defended his action on the premise that a blog is public domain and, therefore, no plagiarism was committed by him. ^[15] His statement is, although downright erroneous, nevertheless, a common misconception. This is, in fact, the defense of choice of people caught lifting off material from the internet without proper attribution. To disabuse ourselves from this mistaken notion, SB 3327 has provided for a provision expressly making any content published on the Internet presumably copyrighted, except when explicitly made otherwise by the author, subject to such conditions under relevant laws. But at the same time the law provides a provision on Content Fair Use.

This is characteristic of the general direction taken by SB 3327, which is to strike a balance between freedom and regulation. Freedoms/rights can be used and abused to the injury of another. This is the argument for the passage of laws that “police” cyberspace. Yes, Internet freedom assures the growth of ideas, innovation, sharing of information but it can just as easily be used to violate copyrights, bully (hence the infamous term, cyber bullying), violate privacy. Therefore, it is beyond contest that we need to update our laws to keep it at pace with the growth of the Internet and the ICT. We need a law that responds to the new issues presented by this creature called the cyberspace. In my opinion, SB 3327 could do just that. One of the complaints about R.A. 10175 is that it dealt with a technical subject written by non-technical persons. SB 3327 does not suffer the same defect. If it succeeds in becoming a law, SB 3327 would have accomplished strides in terms of updating our laws.

Sec. 23. Repeal of the Cybercrime Law

And perhaps the most welcomed provision of this bill is the complete and explicit repeal of the much-criticized R.A. 10175.

To my mind, the filing of SB 3327 is a testament to democracy at work. Our citizens voiced out, in no uncertain terms, their denunciation of R.A. 10175 and our legislators, Sen. Miriam Defensor-Santiago in particular, responded.

However, as in any law, the proof of the pudding is in the eating. It is not entirely impossible nor unheard of that a law that looks good on paper turns out to be a monster to implement. Nevertheless, netizens, like myself, should have high hopes for this bill. Let’s just hope that it gets passed before new developments/advancements in the Internet or in ICT make it obsolete.

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Endnotes

[1] Shrinivas Kanade; Who Built the First Computer; http://www.buzzle.com/articles/who-built-the-first-computer.html

[2] Greg Poling and Liam Hanlon; Legislative overreach: The Philippine fight over internet freedom; http://www.abs-cbnnews.com/insights/10/02/12/legislative-overreach-philippine-fight-over-internet-freedom; October 2, 2012

[3] Ibid.

[4] Cybercrime Prevention Act Sponsorship speech of Senator Edgardo J. Angara; http://www.edangara.com/speeches?page=2

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] JJ Disini; Cybercrime Act: Features and issues; http://opinion.inquirer.net/38218/cybercrime-act-features-and-issues; October 6, 2012.

[10] Ina Reformina; SC gets 5th plea vs Cybercrime Act; http://www.abs-cbnnews.com/nation/09/28/12/sc-gets-5th-plea-vs-cybercrime-act

[11] Karl John C. Reyes; FB ‘likes’, shares could be grounds for libel, says Sen. Guingona; http://www.interaksyon.com/article/44173/fb-likes-shares-could-be-grounds-for-libel-says-sen–guingona; September 27, 2012.

[12] http://www.balaod.com/what-is-prima-facie-evidence/

[13] Margaret Brown-Sica and Jeffrey Beall; Electronic Journal of Academic and Special Librarianship; http://southernlibrarianship.icaap.org/content/v09n02/brown-sica_m01.html#_edn2

[14] Online Privacy: Towards Informational Self-Determination on the Internet; http://drops.dagstuhl.de/opus/volltexte/2011/3205/pdf/dagman_v001_i001_p001_11061.pdf

[15] Patricia Denise Chiu; Sotto aide takes blame but denies plagiarism, says blogs meant to be shared; http://www.gmanetwork.com/news/story/270179/news/nation/sotto-aide-takes-blame-but-denies-plagiarism-says-blogs-meant-to-be-shared; August 17, 2012

Andaya, Dennis Karl

SY 2012-2013, Second Semester

• RA 10173 “Data Privacy Act of 2012” – How does it Affect Me Personally?
• Untitled

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RA 10173 “Data Privacy Act of 2012” – How does it Affect Me Personally?

There are several definitions and descriptions of the word privacy that one may find. But for me, the best and most simple way of defining and describing privacy is through the phrase “LEAVE ME ALONE!” Privacy for me is “mind your own business!” “This is mine and mine alone.” “I will let you if I want to.”

Privacy is one of the most fundamental rights that a person has aside from life, liberty and property. But unfortunately, it also one of the rights that is most abused and not respected. People invade other people’s privacy. Simple act of going inside a bedroom that is not yours without consent is invading his/her privacy. Reading the text messages of others is also invading privacy. In short, invading privacy of others is an evolving problem which starts from simple acts and growing to more intricate ways. It even grows together with the advancement of our so called “technology”. Even crimes progress along with society. Unethical acts are also modernized together with time, such as hacking, spamming, phishing and identity theft.

In our present time, where we call it the “modern age” or “computer age”, technology is everywhere. We have computers, ipads, iphones, androids, etc. Everything is easy access now a day. Information can be accessed in a single click. Just a single click and everything you want to know will just flash on your screen. Old and young people alike are using the internet. Facebook, twitters, blogs, almost everybody are using these social networking sites which they publicize their private information and even what they do and where they are. Anybody can have access to these and may see and know what one posts.

Technology has gone far in affecting people’s lives in this information age. Internet, nowadays, is fast becoming the alternative tool of fraudulent activities for economic and financial gain. With these, how far has our Philippine government, worked in combating the challenges of this age? Is it able to compete with its demand? ^[1]

We also have surveillance cameras and CCTV cameras in all over the places which monitors everything that we do. I have watched several foreign movies which depicts the idea that several government agencies have access to all things in the world. Generally, all things! They can access your phones. They may locate you where you are at a certain time. Who you talked to and even can follow you until the comfort room. Though these were just movies, still they are close to reality and some are really happening in the real world. Now, DO WE STILL HAVE PRIVACY AS INDIVIDUALS?

The Philippine Constitution and other laws that were promulgated protect the privacy of the people. These are also supplemented by some jurisprudence. The Philippine Constitution states in Sec. 3, Art. III of the Bill of Rights that “(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or proceeding section shall be inadmissible for any purpose in any proceeding.” The Constitution protects the right of an individual to communication and correspondence. Communication is not only limited to the old school type of communication like telephones, mails and telegrams, but with the presence of modern technology it should also apply to modern types of communications like chatting, vibers, messengers, emails, facetime, skype and alike. Espoused with these kinds of communications are the information of the owners of accounts, such as, their names, addresses, contact numbers and alike. Somehow they are the ones who publicize their personal information. Some are too careless to expose their own identity down to its minute details. Then enters the people who take advantage of these information with malicious intents.

In the case of Ople vs Torres, G.R. No. 127685. July 23, 1998, the Supreme Court stated:

“Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights:

“Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.”

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:

“Sec. 1. 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.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

x x x.

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

x x x.

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.”

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposit Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information.

x x x.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources– governments, journalists, employers, social scientists, etc. “

Indeed our highest court recognizes the fact that there is a right to privacy and very much threatened in our civilized society.

As society progresses, the needs and application of law also progresses. Several laws were enacted have as subject matter the modern technology. One of the laws enacted by our legislatures is Republic Act No. 10173 or otherwise known as “AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEM IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER PURPOSES”. It is also known as the “ DATA PRIVACY ACT OF 2012”. This law, signed by President Benigno S. Aquino III on August 15, 2012, protects the integrity and confidentiality of individual personal information in information and communication systems in the government and the private sector. The new law penalizes the unauthorized disclosure of personal information. It protects journalists and publishers, as they will not be compelled to reveal the source of a news report.

RA 10173 was patterned on standards set by Directive 95/46/EC of the European Parliament and aligned with Asia Pacific Economic Cooperation Information Privacy Framework that protect the integrity of personal data. It provides for the creation of a National Privacy Commission that will monitor and ensure compliance of the country with international standards for data protection. The commission will implement the law, receive complaints, issue cease-and-desist orders, compel entities to abide by its orders and monitor compliance, and enforce policies that balance the right of the private person to privacy.

The passage of RA 10173 is expected to boost investment in the fast-growing information technology and business process outsourcing (IT-BPO) industries. Hailing its enactment, the Business Processing Association of the Philippines said the new law brings the Philippines to international standards of privacy protection as much of IT-BPO work involves confidential personal and company information of local and foreign clients.

Excluded in the scope of RA 10173 are, among others, personal information processed for journalistic, artistic, literary or research purposes, information about government officials and other civil servants, information necessary for banks and financial institutions as part of anti-money laundering efforts, and personal data processed by central monetary authorities and law enforcement and regulatory agencies. ^[2]

How does RA 10173 affect me personally as a citizen? For me it is favorable because it tends to protect my privacy, integrity and confidentiality when it comes to personal information in information and communication systems. Though my personal data will be processed by the government still there is a security that it will be used for legal and lawful purposes. Despite all the news about our government as being corrupt, still I trust the government in ensuring the security of every citizen. I respect the true intent of the lawmakers in making laws that they make the laws for the benefit and protection of the society and is people. I will still entrust my personal data to the government if needed because I still believe in our government. If we do not believe in our government, to whom shall we believe in running this country? In the first place we are the ones who voted our leaders. I know that as a citizen of this country, they intended to protect my rights when they made this law. You may call me a hypocrite but this is reality.

By this law I also feel secured from future violations that may be happen which is covered by this law. We cannot deny the fact that there are so many people who would take advantage when it comes to the personal data of every individual. They would use these data in one way or another to gain from other people in unlawful way. Many innocent people were victimized by these people. There are people who would disclose personal information or data of other people to others just for their personal gain. People would give these data without the consent of the owner for compensation. It is not impossible that I may be a victim of this kind of act. With enactment of RA no. 10173, which penalizes the unlawful disclosure of the personal information of others, I as a citizen will be secured and protected from these people.

For economic purposes, this law would encourage investors and businessmen to engage in business in our country without fear that their information as well as their clients will be divulged without their knowledge and consent. The law also protects these persons, natural or juridical, from the unlawful disclosure of their information. This would promote free trade in our country. When this happens, I would still benefit from the economic boost of our country as a citizen. Our economy would grow and would develop our trade internationally.

By virtue of necessity, as stated earlier, privacy is one of the most threatened rights of people. This law is one of the solutions of the government in protecting the abuses and evasion to the privacy of its citizens. This is the shield of the people from those people who would unlawfully evade their privacy, take their personal information or data and disclose them to people without the consent and knowledge of the owner, whatever his/her intent maybe. This law would be the volt of the personal data of every citizen that they may keep these information from the reach of others and keep it within the walls of their life and may only be disclosed upon their.

As to its beneficiality, all the citizens would benefit from the law. Not only the journalists, media, press, businessmen, investors, etc., but all the citizens because each and every citizen has his/her own personal life, privacy, and personal information or data to protect, from the youngest person in the planet up to the oldest.

As to the practicability of the law, in our modern times right now, where most individual is so vulnerable in the sense that his personal can be accessed easily through the internet, and almost everybody is using the internet, it is but practical that there should be a law that would protect the people from these intruders.

Every life should be basically private. It is only the works of man that some lives loose their sense of privacy. Just like the public officials whose life is imbued with public interest. But still, public figures as they are, there should be part of their lives that should be treated with privacy. Everything has limitations. One should always respect the privacy of others. Respect generates respect. If you want others to respect your privacy, you should also respect others’ privacy. this is the Golden Rule “DO UNTO OTHERS, WHAT YOU WANT OTHERS DO UNTO YOU.”

The personal identity and information of an individual is part and parcel of his privacy. Thus, no one is allowed to intrude to this sacred right. Sacred as it is, it should always be protected and respected. The government should provide laws that would protect these rights. Even though there are laws that protect the rights of the people, yet still it is first and foremost the obligation of every individual to protect his own rights. One should not be careless in the discharge of his own personal information. Each should be responsible enough for his own security.

MAY GOD BLESS US ALL!

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Endnotes

^[1] Katlyn Anne C. Aguilar, KEEPING ONE’S PERSONALITY AND HUMANITY IN THE ELECTRONIC AND CYBER AGE, UST LAW REVIEW, VOL. LIV

^[2] http://ph.news.yahoo.com/data-privacy-act-2012-102336873.html, (last accessed December 5, 2012)

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Untitled

Technology of man has evolved so rapid through the lapse of time. Long before, our forefathers used stones as their tools. Then came fire which was used in different ways like cooking, heating and alike. Through the years the technology of mankind has evolved. Man has discovered the use of metals, plastics, papers, wood and many others. Before man lived in caves, then man learned to build houses by the use of wood and leaves. Thousand of years had passed and we can now see high rise buildings condominiums and different kinds of structures which depicts beautiful and intricate architecture. Communication also has evolved much. From time people use ravens or birds to send their message to the time man has used telegraphs. And now, we can send messages in an instant without waiting for a long time for our message to reach its destination. Life of man has become easier and comfortable. The world offers all kinds of comfort through our modern technology. This simple means that man does not settle for less at he always wants more. The intelligence of man has brought us this far in all aspects especially in terms of technology.
Now come the age of computers and internet. Everything is instant. Messages reach their destinations in just one click. Information can be acquired in just one click. One can see his/her loved ones even miles away or on the other side of the world without necessarily going to such place, just in one click. In the internet, everything can be done just in one click. We have now several social networking site which gives us the opportunity to meet people in different people not just in one’s place but also from different parts of the world. In the business world, everything is already computerized for purposes. Now bulk of files and documents may be avoided by the use of computers. Business transactions can now be made through the use of computer and internet. And one can also have his own business as long as he has a computer and internet connection. Also, education will not be left behind in the evolution of technology. Some students do not already use books and other school materials in school because of modern technology. In just a single “IPAD” or a “TAB” a student or teacher can have all his/her books and reading materials. This can be acquired through the internet. People need not go to huge libraries and carry towers of books to do their research. In just one click in the internet you can already have the information that you want. If you do not know something and you don’t want to ask others for fear of being embarrassed of being called an ignorant, Filipinos has this expression “I.M.G.” which means “I-google Mo Gago”, and boom, you will be informed. In other words, the everyday life of mankind as espoused to the use of INTERNET!

Because of this evolution and now the age of internet, many people have taken advantage of the use of internet in different ways. Some in a good way, but still others in a way that would offend other people and worse in a way which violates the rights of others. Along with the evolution of technology, laws should also evolve to cater the needs and exigencies of time. That is why nations all over the world made their own laws governing the use of internet. Laws that would create the rights of the internet users or what they call now the “netizens” and also to protect these rights from violations of those people who would tend to violate these rights of others.

Here in the Philippines, our lawmakers made several laws that create rights of internet users and penalties for violations of these rights. We have, Republic Act No. 8792 or the Electronic Commerce Law, the Rules on Electronic Evidence, Republic Act No. 10173 “An Act Protecting Individual Personal Information In Information and Communications Systems In The Government And The Private Sector, Creating For This Purpose A National Privacy Commission And For Other Purposes”, and the most controversial Republic Act 10175 “An Act Defining Cybercrime, Providing For The Prevention, Investigation, Suppression And The Imposition of Penalties Therefore And For Other Purposes” also popularly known as the “CYBERCRIME CRIME PREVENTION ACT OF 2012” or “CYBERCRIME LAW”.

The Cybercrime law was recently promulgated by our legislature with the intention of protecting certain rights in the world of internet. But this was made in to law despite all criticisms it had. As early as it was yet a bill many people and several groups criticized this law. It was said that several of its provisions was a violation of the constitution and hence unconstitutional. That is way some people had protested to its passage and it was under a Temporary Restraining Order. This law is still confidential and highly debatable.

Many people and even some of the lawmakers do not like the provisions contained in the Cybercrime Law. That is why Senator Miriam Defensor-Santiago has drafted the Bill No. 3327 also known as “MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM (MCPIF)”. This bill is intended to replace the controversial Cybercrime Law. This law is intended for the same purpose, to create the rights of the internet users, to protect these rights and to punish those acts which violate these rights. But the question is “if Bill No. 3327 will be enacted as a law, is it a better law compared to the Cybercrime Law? Which of the two is better that would serve to protect the interest of the internet users?”

WHICH OF THE TWO IS BETTER? If a person would be given a chance to choose between two vitamins, one that contains vitamin C only and the other that contains vitamins from A to Zinc which is more complete he would most probably choose the latter because in just one vitamin it contains all the vitamins and nutrients that his body needs. Why settle for less if you can have more? Following this line of thinking, I would say with all conviction that Bill No. 3327 or the MCPIF being introduced by Senator Miriam Santiago will be a better law compared to the Cybercrime Law. Generally, it is a more comprehensive compared to the cybercrime law. It expressly states in its provisions the rights and freedom in the use of internet and the rights and privileges guaranteed by the 1987 Constitution, especially the Bill of Rights, and those rights and privileges provided by the treaties and conventions which are made applicable in the Philippines. It also states the punishable acts with more clarity as compared to those stated in the cybercrime law which brings ambiguity in its definitions. Together with punishable acts are the penalties which are more appropriate.

Primarily, the cybercrime law was protested because of its being overbreadth and void for vagueness hence it is unconstitutional. It is overbreadth and void for vagueness because it tends to punish certain cyberacts or internet act as punishable which in truth and in fact it should not be punishable. Laws should not be so broad enough to bring confusion to mind of the people and it also should not be vague so that it could be easily understood by the lay people. This is what happened in the cybercrime law. It brought confusion to the mind of the people as to what are the specific acts that are punishable under the law. Beause it gave an impression to the people that almost all the internet activities may be punished. The MCPIF does not suffer this kind of problem for it is clearer.

Another reason for its being unconstitutional its violation of the right of the people to privacy because the authority can intrude to the privacy of the people without even the observance of the right of the people to due process. The cybercrime law does not provide for the procedural right of the people to due notice and hearing before the authority can intrude to the right of privacy of the people. While the MCPIF provides protection to the right of the internet users to their privacy.

In connection with the statements made in the previous paragraph, another reason for its being unconstitutional is its violation to the right of the users to due process of the law which is expressly guaranteed by the 1987 Constitutional. This violation is not committed in the MCPIF.

The cybercrime law also violates the right against illegal searches and seizures for allowing real-time collection of traffic data in the absence of a valid warrant. This is not allowed in MCPIF. The MCPIF specifically provides for the due process in collection of the said data through by providing strict guidelines for any collection of any data owned by private internet users. It also provides that a search a warrant should be secured first before they can collect data. It also obliges the authority to notify the internet user before the authority can seize anything. The right to seize by the authority is also not without limitation. The authority can only seize data and not physical properties of the internet users. In observance of the people’s right to privacy the MCPIF mandates the authority to secure the collected and seized data that no other may obtain it without authority. These data, though already seized, must be protected from those people who would like to have them to be used against the owner of the data. It is still their private data and should not be used other than those purposes intended and allowed by the law.

One of the freedoms that is most exercised in the cyberworld is the freedom of expression and of speech. That is why it is also well protected by MCPIF. But this protection is not without exception. The MCPIF also punishes libel committed trough the internet. This is to protect the Filipino people from the libelous statements against them committed in the internet by those who abuse their right of speech and expression. Comprehensive as it is, MCPIF does not define “libel” in an overbreadth and vague manner which the cybercrime law. The cybercrime law was very much suffered criticizisms because of the overbreadth and vagueness of its provisions with regard “libel”. It is so general that it will cover as much as I would which on the first place it would supposed to be covered and it also vague for one may not readily know if his or her act would fall under such offense.

The right against double jeopardy is also violated because the cybercrime law allows the prosecution of a single offense or act against the provisions of the Revised Penal Code and also other special laws. This is not allowed under the MCPIF.

One of the problems not only of the Philippines but also the whole world is terrorism. Terrorists have also evolved and grow together with technology. Terrorists has also plotted they terrorist attacks not only by the use of bombs, guns and other explosive devices but also through the internet. In other words, terrorism has already penetrated in the cyberworld. Terrorists have used the internet to do terrorism. That is why the internet must be fortified from the evil that is brought by terrorism. Because of this the MCPIF ensures that the Philippines have available defenses that would the country from the possible attacks of the terrorists and also other people or state through cyber technology. This is ensured by the MCPIF in its provisions.

Indeed the MCPIF is better compared to the Cybercrime Law. I would strongly agree with the author of Bill No. 3372 that the Cybercrime Law must be repealed. It would be great redundancy in the law if both laws will be upheld. MCPIF covers everything essential that the cybercrime law that covers and more is offered by the former.

Many petty crimes have been committed through the internet. One of which is cyber bullying. Like what happened to the lady in the famous “AMALAYER VIDEO” the girl was deeply scrutinized when she yielded on the lady guard in the train station. Many questions could be raised in such circumstance. Those people who saw the video has made different comments some where in favor of her but mostly are against what she did. the video became a short time sensation in the country. It was even shown on the national television in different stations. Because of the criticisms made by other people, the lady was deeply embarrassed. She is indeed a victim of cyber bullying. The question now is “is the person who uploaded the video in the internet liable for the embarrassment brought to the lady in the video?”. This is just one of the circumstances that should be addressed by the government. Petty things indeed these are but still the rights of the people are at stake here.

Prostitution is already committed through the internet. There are so many sites that offers pornography and live video streaming of people, male and female alike, that are immoral and obscene. Even the children are exploited in this kind of crime. Many cybersex dens have been apprehended already. This should already be stopped.
Every person is very much vulnerable in the cyberworld. There is no person that could prevent other people from making untoward acts in the internet world. So enters the laws that are promulgated to protect the people.

The government through its lawmaking bodies are the ones who are empowered to create the laws the would protect its people. But laws should not be shallow and made half-hazard way. Every law shall be well thought of by the lawmakers for rights of the people are at stake. Rights of the people should be well protected and punishments should also be clearly stated without ambiguity. These punishments should be clear enough because it is of no good to punish a person who does an act does not know that what he or she does is punishable by law.

It is also an elementary rule in law making that it should be in consonance with the highest law of the land the Constitution and should never go against it. Any law that goes against the constitution should never be allowed. The people are weak enough to defend their rights on their own that is why there are laws made that protect these people from any mischievous acts done against them. These acts can now be very much committed through the internet. There must be a substantive law that would protect the people in the internet world. A law that would best protect and serve the interest of the internet users and the whole nation. And in my own opinion Republic Act.10175 is not the proper law. The cybercrime law does not well protect the interest of the internet users. There are so many loopholes and insufficiencies in the said law. There are so many violations against the Constitution that made me to think that it was not drafted with scrutiny. The lawmakers maybe drafted it in a fast and urgent manner just to say that the Philippines have a law governing the cyberworld.

On the other hand, I strongly believe that the Bill No. 3327 also known as “MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM should be made into law repeal Republic Act No. 10175 because for me this bill if made a law will best protect the interest of the people and the nation in the world of internet. This bill does not only cover the criminal and civil aspect of the law but also it covers other areas like the intellectual property law. This would be, if not the best but a better guidelines for internet users in the present and also in the future. The internet is so vulnerable to different kinds of crimes and offenses.

The Philippines is one of the countries that has the most number of internet users especially when it comes to social networking sites like facebook, twitter, multiply and the like. This is already the truth that could not be denied and prevented. The government should deal with this and protect these millions of internet users in the Philippines through the passage the Bill No. 3327 also known as “MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM.”

Aton, Jonelyn Jan

SY 2012-2013, Second Semester

• Tech & the Law: Republic Act No. 10173 – Data Privacy Act of 2012
• Tech and the Law: Republic Act No. 10175 vs Senate Bill No. 3327

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Tech & the Law: Republic Act No. 10173 – Data Privacy Act of 2012

When I first read the lengthy provisions of Republic Act No. 10173 or otherwise known as the Data Privacy Act of 2012, I honestly could not make any comment about it. Not that I find it very impressive, but because I was lost with the words and terminologies used in that law. All that I could understand while reading the new law is that it is a consolidation of the bills of both the Senate and the House of Representatives which was finally passed last June 6, 2012, and eventually, approved by the president of the Philippines on August 15, 2012.

I could not clearly appreciate what this law, more so its framers, desire to convey to the public, who will be subjected to such law, not until I read it over and over again, and searched, browsed, and read the explanations and justifications of the public officials involved in the creation of such law. Only then that I was enlightened of the functions, objectives and purposes of this law; that it shall be for the benefit of every individual and of the country as well.

After reading what the framers and supporters had to say about this new law, I started to have some random thoughts and realization about it — how will this new law affect the government, the private entities, the individuals, and myself as well; was it really necessary for the country and its citizen to have this kind of law; if it is, then why is the legislative department created this law only now when there are private entities and a few government agencies which has been, for quite some time now, using Information and Communications System in processing personal information of their data subject; how will the government implement this new law; how soon can the government implement this new law; will the government be able to apply this new law equally to everyone; and so on and so forth.

As projected, one of the purposes of its creation is to protect the personal information of every person, whether natural or juridical, against any unauthorized release or publication. In line with such purpose, a National Privacy Commission shall be created with the mandate of monitoring the implementation of this new law, and that any violators shall be penalized accordingly. And unlike the other recently approved law by the president, Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act, this law has no existing official opposition having no Temporary Restraining Order, which would mean that it can take effect after fifteen (15) days of its publication in at least two (2) national newspapers of general circulation, as provided in its “Section 45. Effectivity Clause” of the said Act (http://www.gov.ph/2012/08/15/republic-act-no-10173/).

“SEC. 44. Repealing Clause. – The provision of Section 7 of Republic Act No. 9372, otherwise known as the “Human Security Act of 2007″, is hereby amended. Except as otherwise expressly provided in this Act, all other laws, decrees, executive orders, proclamations and administrative regulations or parts thereof inconsistent herewith are hereby repealed or modified accordingly.

SEC. 45. Effectivity Clause. – This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation.”

This new law, as embodied in its “Section 44. Repealing Clause” from the same source mentioned above, is also intended to repeal or amend Section 7 of Republic Act No. 9372, otherwise known as the “Human Security Act of 2007”, an act which is established to secure the country and to protect its citizens from any terrorism. It would denote that the surveillance of suspected terrorists, and interception and recording of communications of such suspects, shall no longer be allowed, whether with or without approval or order of the law enforcement officials.

Here, I think that the intention of Republic Act No. 9372 to prevent terrorism and/or to capture any suspected terrorists will be impeded if not halted because the government and the law enforcement officials’ means to carry out their functions in fighting against any possible terrorist attacks will be restricted. But at some point, this amendment to Section 7 of Republic Act No. 9372 will be beneficial to most citizens who are certainly innocent but are being considered suspected terrorists because they will be able to exercise their right to privacy, a right which is mandated in “Section 3, Article 3: Bill of Rights, of the 1987 Philippine Constitution (http://www.lawphil.net/consti/cons1987.html)”.

“Section 3 –

1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

Further, based on the statement of Department of Science and Technology-Information and Communications Technology Office Executive Director Louis Casambre in an August 28, 2012 article in the official website of the Philippine Information Agency (http://www.pia.gov.ph/news/index.php?article=1781346143986), the new data privacy law is intended to bolster the growing Information Technology-Business Process Outsourcing (IT-BPO) industry in the country. The new law would appear to, by some means, promote the idea of “Information to Empower Filipinos”. The President and CEO of Business Process Association of the Philippines, Benedict Hernandez, also had to say that this new law will “bring the Philippines to international standards of privacy protection”.

Additionally, according to the supporters of this new statute, it is intended to make the Philippines in line and in compliant with the international data security standards, which would establish measures that will protect and preserve the integrity, security and confidentiality of personal data collected by government and private entities in their operations. In a press release published by the Senate of the Philippines last August 23, 2012 in its official website (http://www.senate.gov.ph/press_release/2012/0823_angara2.asp), a “statement of the passage of data privacy act” elucidated that the passing of this new law is necessary for the country and its citizens “to become a functioning knowledge-based, ICT-driven economy”. Further, according to the Senate, all enterprises, whether public or private, shall be mandated to safeguard the confidentiality and integrity of personal information collected in the course of their operations. Not only that this new law will boost confidence of potential investors in the country’s growing Information Technology and Business Process Outsourcing industry, but the trust of the ordinary citizens as well in the e-governance initiatives.

Recently, it is evident that the IT and BPO industry the country is growing, a proof that foreign corporations have become more interested in investing the country. As a result, the IT and BPO industry now plays an important role in the country’s economy at it serves as a job and income generator as it opened opportunities to many Filipinos. As our country caters to the demand of IT and BPO industry, it is, I think, better if we have laws existing to protect the security and confidentiality of the information being processed by the IT and BPO companies. Having worked in a documentation center of a certain BPO company, I was able to see and experienced firsthand how rigid the security policies are of the company, and how they value the confidentiality of any information regarding their industry in order to protect the clients, the employees, and the company itself. The approval of Republic Act No. 10173 should be a good effort on the part of the government to implement laws that would assist in continuously developing the country into having high quality services that are in line and in compliance with the international standards of privacy protection. In this way, more and more investors will be interested in investing in the country because they will be confident that the security of their businesses will be protected from any violation.

I also observed that in Section 5 of Republic Act No. 10173 (http://www.gov.ph/2012/08/15/republic-act-no-10173/), it continues to afford protection to journalists and their sources. That they shall not be compelled to reveal their sources for whatever news-report or information they disseminated to the public, with the exception of course, that the court or the Congress may demand them to disclose their sources should the interest and general welfare of the public is concern.

“SEC. 5. Protection Afforded to Journalists and Their Sources. – Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.”

This is a worthy protection for the journalists because they will be able to freely exercise their freedom of speech without being anxious of their safety and security, provided, that they publish the correct information to the general public. However, journalists should still keep in their minds that they have to be responsible to the information they divulge to the public because it would reflect their professional values, and that the protection they receive from the law is not an absolute one, as they can still be subjected to legal complaints from the subjects of their publications and reports.

Initially, how will this new law affect the government, its efficiency in serving the public, is it beneficial to the public and how will it affect me. I can see that, if not all, at least some of the government agencies I had experienced dealing with like the Land Transportation Office, the Social Security System, the National Bureau of Investigation, the Home Development Mutual Fund (Pag-ibig), the Philippine Health Insurance Corporation (Philhealth), the National Statistics Office, the Department of Foreign Affairs, and the Bureau of Internal Revenue, are now embracing the power of technology because from paper-based databases and documents, they are now capable of serving the public using online communications and they now have centralized online database, which means, although they are from different locations, they will be able to search any information and would get the same results, even if the information would come from such other location. At some point, I think it is beneficial both on the part of the citizens and the government and its employees.

On the part of the government and its employees, they no longer have to deal with loads of files and papers, and manually searching each and every paper in order to serve each and every client’s requests and demands. They only need to search in their central database and in just one click; they would get the result – better and faster service to the citizens. And on the part of the citizens, like myself, I will be able to appreciate our government more because of their better services. I would no longer need to fall in line for ten hours just to get my NBI clearance; I no longer have to go to the NBI main office to get a clearance, which is too far from my home, because they now have satellite offices in different locations, to better serve the public; I no longer have to go to the DFA thrice just to have a passport or renew it because I can now apply for a passport online and just go there for the appearance date; I no longer need to go back to the LTO office where I first applied for my license because I can now renew my license in any of their satellite offices. These are some of my experiences where I can say that there was an improvement in the services of some of the government agencies because of having a better information and communications system, and filing system in storing and processing the personal information of their data subjects.

However, not because the government is starting to adjust to apply the modern technology, it would mean that everything will be easy and very efficient. Of course, there will be, at some point, difficulties and challenges that will be experienced in applying the modern technology. The government may have a better information and communications system, and filing system by storing and processing the personal information of their data subjects in a central database where they can uniformly look at it regardless of their location, however, we should be reminded that the government may still be not using the kind of technology with the best quality.

There would be times when you are in a certain satellite office of a government agency, falling in line to get a clearance or a license, thinking that since the government is now more efficient, you are expecting and anticipating that in an hour or two you will complete the necessary procedures and have your license or clearance, but while waiting for the clearance or license, they would announce that you and the others need to go back some other time because there was a system failure and/or their system turned offline, therefore, they can no longer process your personal information in their database, and they will not be able to print the license or the clearance. Further, when you ask if it is possible to just go to another satellite office since you urgently need the clearance or license, to your disappointment, they will say that the system error and/or system offline is being experienced not just by their office but by all satellite offices of that certain government agency. And to your further disappointment, they cannot give you an exact date when you should come back because they themselves do not know as well when their system or server will be fixed because it would all depend on how fast or how slow their service provider can fix or troubleshoot the system error.

The scenario above is a reality because I have experienced it before. Now that I am thinking back on what happened, I realized that although our government is giving an effort to modernize their filing system by having a central electronic database, difficulties and challenges will still come on the way. Moreover, I was also thinking that, since the government has a service provider for the systems they use for their central electronic database, does it mean that the personal information they get from each citizen and stored in such database can also be seen by such service provider? I cannot exactly discern whether the personnel of the service providers of the government can actually see and/or access the personal information of the data subjects stored in the database, but one thing is for sure, we do not know precisely how secure our personal information is in the database of the government.

Person/s in bad faith can bribe the service provider personnel or the government employee to access the database and assist them to give some personal information about certain data subject/s and/or hackers who are also in bad faith can hack the database of the government and make a mess with the personal information stored in their databases. Both instances are most likely probable to happen because we have to admit that we live in a country with numerous corrupt people, whether in the government or just a civilian with an access in the government. Also, we should remember that recently, when the other law, the Cybercrime Prevention Act, was approved, certain group of hackers tried to hack some government websites to show their opposition to the new law. If these people were able to do that, then it could mean that anyone who is an expert in hacking websites can do that as well, especially if there is an equivalent reasonable price, in just obtaining some confidential and personal information of certain data subject/s.

With that, I can say that we must appreciate the efforts of our government to modernize their filing system, and information and communications system by having a central electronic database where they can uniformly store the personal information of their data subjects. However, we, citizens, being the data subjects, must also be aware that entrusting our personal information to the government may have consequences whether favorable to us or not.

Nevertheless, with the enactment of Republic Act No. 10173, we should, I think, feel more secure that our personal information will not be tampered neither will it be disclosed without our consent or without any legal purpose for its disclosure, and that we will have the right to know what personal information pertaining to us is being processed because under the said law, provisions pertaining to the principle of data privacy, the rights of the data subject, the security of personal information, the accountability of personal information controllers, and the responsibility of heads of government agencies were provided. More so, penalties for any violation of the Act and/or unauthorized processing and accessing, and improper disposal of personal information were afforded to protect the data subjects from any substantial violation of their right to privacy, a right specifically provided under our Bill of Rights in the Constitution. This effort, as I believe, shall as well be construed as a support in competent detection, investigation, apprehension and prosecution of crimes which involves the internet and the cyber world. An initiative on the part of the government to resolve the increasing crimes against natural and juridical persons in terms of identity theft, hacking, spamming, spread of virus, phishing, among others.

This new law shall also be applicable to private entities, except of course, those specifically mentioned in the provisions. I wonder then, if this should also be practiced by banking institutions, especially those with credit card services. More than three years ago, a few weeks after availing the credit card services of a certain bank in our country, I received a call from a certain “company” offering me a health card membership wherein the payment to such membership, which is more than Three Thousand Pesos, will just be credited to my credit card account, and to my surprise, this person I am talking to knows my credit card account number. When I asked him how come he knows my credit card account number, he says that they have access and can see the database of credit card companies, and from there they choose individuals who will be offered of their products and services. And since I already have my own health care provider, which is more credible and known to the public, I declined their offer.

I thought, after that conversation, I will no longer receive any more offers but I guess, I thought wrong because for another few weeks, I received another call, this time from a different “company”. And once again, the sales person claimed that he got my information from the database of the credit card company where I have an account, and that they have access to the database of all credit card companies. He offered me a membership card wherein according him, will give me big discounts to different establishments, including those high-end establishments. The offer was somewhat tempting but of course, I was reminded of the previous offer I received, hence, I strongly declined his offer. He was so persistent that he even suggested that the membership fee in the amount of more than Eighteen Thousand Pesos can be paid in an installment basis for six months using my credit card account. He even said that he will be the one to transact with the credit card company. I kept on declining him and insisting that there are more important expenses I should consider before giving in to his offer. Because huge amount of money is already involved, I immediately called the credit card company and confronted them about the experiences I had involving my credit card account. I asked them how come these people or “companies” knew my information – my credit card number, my company address, my contact number. I could remember that these credit card personnel would keep on telling their clients during the negotiation and convincing stage that their personal information will be kept confidential. To my dismay, they only answered that apparently, they do not know how those people or “companies” knew about my personal information because it is not their practice to disclose their clients’ information without the client/s’ consent.

I do not exactly know if this new law shall apply to them or if they will be covered by the proper and legal procedure of disclosing the personal information of their clients but I am hoping that they are so citizens like myself who avails the services of the credit card companies will be protected from any unauthorized disclosure of my personal information. At that time, I was not aware yet of any statute which could protect me from such incident so I just let it passed by. However, at present, should this happen again, I think, I can be more vigilant and would be able to have the courage to confront and would make a complaint against the credit card company that would disclose my personal information to others without obtaining any authorization or consent from me.

I am just hoping that the framers of this new law and those who will implement it will be able to create its implementing rules as soon as possible, and that the planned National Privacy Commission will be effective enough to strictly enforce the provisions of this new law, and would be able to properly and legally detect, apprehend, investigate, and prosecute any violators. And of course, that the constitutional right to privacy of every individual will not be put at risk because of the implementation of this new law. That even if the government and the private entities will be given the right to gather personal information of their data subjects, they will still respect the privacy of the data subjects by not disclosing their personal information without obtaining the consent or authority of the data subjects or without any legal purpose to do so.

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TECH and the LAW: Republic Act No. 10175 vs Senate Bill No. 3327

The Recently Proposed “Magna Carta for Philippine Internet Freedom” (Senate Bill No. 3327)
VS
The Recently Approved “Cybercrime Prevention Act of 2012” (Republic Act No. 10175)

Towards the last quarter of the year 2012, the Philippines was confronted with yet another controversial issue involving the Legislative Department (both the Senate of the Philippines and the House of Representatives), and the President of the Philippines himself, with the passage of one of the most disputed recent bills, Republic Act No. 10175 ^[1], otherwise known as the Cybercrime Prevention Act of 2012 (aside from the Reproductive Health Bill of course, which are now both approved and turned into laws), which was approved by the President last September 12, 2012.

While the said Act was still a Bill in both the Congress and the Senate, a lot of Filipinos, may it be groups or organizations of internet users such as the netizens and bloggers, the members of the media, human rights groups, and even concerned individuals, have already expressed their dissents and oppositions to the potential implementation of what they believe to be an impending unjust and unconstitutional law which will likely violate numerous rights and freedom guaranteed under the Bill of Rights in our 1987 Philippine Constitution, such as the Freedom of Expression and Speech, Freedom of the Press, Right to Privacy, Equal Protection, Right to Due Process, among others. However, no opposition could stop both the Senate and Congress in passing the Bill because it was able to reach the President for his approval.

Under Section 31 ^[2], the Act shall take effect fifteen (15) days after its publication in the Official Gazette or two (2) newspapers of general circulation, and having been published on September 18, 2012, the Act had become effective since October 3, 2012, and the government agencies assigned to formulate the necessary “Implementing Rules and Regulations” ^[3] should have been starting their drafts since they were given only ninety (90) days from approval to accomplish their task in order to effectively implement the Act. However, because of the adamant oppositions of the individuals and groups of people mentioned above, a total of fifteen (15) petitions for temporary restraining order against the implementation of the Act were filed before the Supreme Court, which made the high court, as an exercise of their power of judicial review, instantly respond to on October 9, 2012, almost just a month after its approval and a few days after its effectivity, by unanimously voting to issue the 120-day Temporary Restraining Order ^[4], which shall be effective immediately, not only of those refuted provisions of the Act, but the entire Act itself, with the condition that there will be an Oral Argument on the matters and issues raised in the petitions on January 15, 2013, less than a month before the estimated expiration of the order.

And just before the year 2012 came to an end, we have witnessed the action and response of Senator Miriam Defensor Santiago to the controversies surrounding the halted Cybercrime Prevention Act. The said Senator on November 12, 2012, filed before the Senate of the Philippines’ Fifteenth (15th) Congress her “version 2.0” of the Cybercrime law, the Senate Bill No. 3327, otherwise known as the Magna Carta for Philippine Internet Freedom ^[5]. According to Senator Santiago in the last part of her “Explanatory Note”, she envisions that her Senate Bill will ensure that everyone will be benefited and be able to overcome any cyber challenges ^[6]. A day after the Bill was introduced, it had already been read on First Reading and referred to the Committees on Science and Technology; Constitutional Amendments, Revisions of Codes and Laws; Ways and Means and Finance.

We now welcome the year 2013 with yet new matters to discuss about – the upcoming Oral Arguments before the Supreme Court between the supporters of the Cybercrime Prevention Act and the petitioners of the temporary restraining order, to determine the constitutionality of the provisions of the Act and the Act itself, and whether or not it shall be just to continue the implementation of such contested law. But of course, assuming that this controversial law be declared constitutional and its temporary restraining order be lifted, and be effectively implemented, the lifespan of its implementation and enforcement will still depend on the strength of the introduced Senate Bill of Senator Santiago, another matter which seems to be worthy of our concerns and time.

Should the said Bill be able to surpass all the stages in the passage of a bill both at the Senate and House of Representatives, and would reach the President for approval, and eventually, be approved by the President, and be effectively implemented without any opposition, then that moment, as they say, would be the end of the Cybercrime Prevention Act. On the other hand, should the Bill be unsuccessful, and the Act would be declared constitutional, then said Act will be continuously implemented and enforced.

Why such Senate Bill would dictate the length of enforcement of the Cybercrime Law, considering that the latter has just been approved and its temporary restraining order may be lifted anytime soon? It is because, as previously mentioned, the passage of the Bill is with the intention of repealing the provisions that would be declared unconstitutional or the Act itself, embodied in Section 65 ^[7], which is an action on the part of Senator Santiago, in her most legislative judgment and knowledge, to settle any and all controversies that were very apparent in the Act – a prospective solution and response to the continuous complaints and criticisms against the Act.

Which then between the Cybercrime Prevention Act of 2012 and the Magna Carta for Philippine Internet Freedom is the more just and constitutional statute? Which between the two would be more beneficial to everyone? Which is more in compliance with the guaranteed equal protection by the Philippine Constitution? Which is more aligned with the Freedom of Expression promised by the Bill of Rights in the Philippines Constitution? Which would harmonize the perception of the government and its law enforcement agencies, the information and communications industries, and the internet users?

I am not entirely opposed to the Cybercrime law because I know that I am not doing anything to cause me any trouble under the said law. In fact, I thought it was a nice idea to come up with a law which is aligned with our now modern world, and which answers to all the abuses and offenses committed in the cyberspace, which in reality is very adamant. However, after reading the Act and incorporating the assertions of its critics, I could not help but think whether the legislators have really deliberated on the contents of the Act, and why does it gives me an impression that they did not even mind organizing it in a reasonable and rational manner. Some provisions seem to be misplaced and were not stated profoundly. It appears as if it was rushed to be created and be put into law. Some provisions were also contradictory to each other. And the worse is the excessive penalties provided in the Act. I remember a lot of the critics of the Act are asserting that the reason why the Act appears disorganized and why the penalties are excessive is because of the controversy to which Senator Vicente Sotto III got involved into. He was accused of plagiarizing a blog post and a speech, and was “cyber bullied” as he claimed it because too many comments and criticisms against him were posted on different social networking sites. And as the critics of the Act alleged, to prevent people, in the future, from doing the same thing to government officials and other individuals as well, certain provisions were inserted in the Act, such as the provision on libel. The purpose could be to avoid the government officials and the agencies as well from being “bashed” on the networking sites.

By reading section 2 of the Act ^[8], or its “Declaration of Policy”, I observed that it was very much concentrated on the State’s recognition on the role and importance of the information and communications industries, to achieve fast and reliable international cooperation, and to adopt sufficient powers to implement the Act at both the domestic and international levels. I thought then that it could be the reason why it gave the impression of taking the constitutional rights for granted. The Act appears to be a protection more on the part of the information and communications industries, and undervaluing the protection of the rights of many individuals, thereby not promoting the equal protection principle under the Constitution.

On the other hand, on the “Declaration of Policy” in section 2 of the Senate Bill ^[9], I have viewed that it is much longer because it seems to convey an intention to guarantee recognition and protection of the rights and privileges not only of the information and communications industries, but the people as well and that of the State and the government, all together. On one part, the State affirms its cooperation with other nations and international bodies in promoting laws and regulations against abuse of the internet, information and communications technology. On another part, the State as well affirms its commitment to the people on the full respect for human, civil and political rights by recognizing the development and flourishing of “information society” where the people are protected in freely exercising their rights in creating, accessing, utilizing and sharing information and knowledge. Further, the policy also declares the right of the State and the government to develop plans, measures and mechanism to prevent information and communications technologies being used as weapons of mass destruction, with the intention of protecting the Filipino people, providing security for information and communication industries, and consistent with the national interests. In here, we can see that definitely, there is an effort to gratify not only the information and communications industries but the people the well. This declaration of policy now intends to elucidate that the Bill is intended to apply the equal protection guaranteed by our Constitution.

With the declaration of policy alone, we can immediately perceive the difference between the Act and the Bill. We can suppose that the Bill, should it be approved, is more worthy of implementation because it will be a better law compared to the Act. That the Bill is more cognizant on the promotion and protection of the rights of all, whether it be the internet and technology users or the information and communications industries, or the national interest which the State and the government has to look out for as well.

Further, with the comparison of the provisions on definition of terms of both the Act and the Bill, we can notice that in the former, the terms defined are only those of the technical matters, somewhat alike to the Data Privacy Act of 2012. The kinds of cybercrimes punishable under the Act were not even defined, they were just enumerated in other provisions, hence, by just reading the preliminary provisions of the Act, a person will not immediately, in a nutshell, get a glimpse of what the Act is really all about. Unlike with the Senate Bill, with its lengthy provision on the definition of terms, from the definition of technical terms to the definition of the different cybercrimes and to the definitions of any other terms you will encounter in the entire Bill, by just reading them, you will get the idea of what the Bill want to promote and protect.

In addition, we can observe that right after the preliminary provisions of the Act, it instantly shifts to the punishable acts by enumerating all the kinds of acts and omissions which can be classified as cybercrimes. As compared to the Bill (which is ought to be a Magna Carta, or a charter or document that constitutes the fundamental guarantee of rights and privileges of all those subject to such, and in this instance, the information and communications industries and users), right after the definition of terms, the internet rights and freedoms of everyone are emphasized and explained in a separate chapter. The Bill is intended to promote and protect the internet as an open network, that there shall be network neutrality and universal access to the internet, right to privacy and security of data, and that there shall be right to freedom of speech and expression on the internet, which can be considered as an assurance to the critics of the Act that the freedom of speech and expression which worries them that might be violated, is now explicitly recognized and stated in the proposed Magna Carta for Internet Freedom.

On the issues of excessive penalties, as prescribed by the Cybercrime Act, a person who can be found guilty of any of the cybercrimes in the Act can be punished with an imprisonment of arresto mayor or prision mayor or reclusional temporal. Further, such person can also be fined from Fifty Thousand Pesos (Php 50,000.00) to One Million Pesos (Php 1,000,000.00). There are even penalties imposed which shall be one (1) degree higher than that of provided under the Revised Penal Code for all crimes defined and penalized by the Code, which committed with the use of information and communications technologies. These kinds of graver penalties would seem to project an impression that cybercrimes are more severe than the crimes defined under the Code. While under the proposed Magna Carta, the provisions of the Revised Penal Code shall now apply suppletorily to the provision of the Bill, whenever applicable. The Bill was drafted with penalties that cannot be considered as excessive unlike with the existing Act.

One of the most opposed penalties is that of the cybercrime of libel. Libel and its penalty is already defined under the Code ^[10] and its penalty is only an imprisonment of prision correctional or a fine ranging from 200 to 6,000 pesos, and it can be committed by means of writing and other similar means. “The other similar means” should therefore connote that by means of information and communications technology such as the networking sites, libel already falls under the Code. But the Act provides another definition for libel, it made distinct the use of computer system and that it shall be penalized with one degree higher than that of the Code. This I do not think is fair because libel, whether written or printed or in radio or in computer system, should all be treated as the same and should be penalized as the same. The means committing libel may be different but the intent is all the same, to cause a dishonor or discredit against a natural or juridical person. I remember during the first few days after the Act was approved, it has been a topic of many programs, whether on TV or AM radio or FM radio. Once on my way to the office, a radio caller in the FM station I’m listening to said that if he has an enemy whom he wants to do revenge, instead of saying bad things about his enemy on social networking sites, he would rather beat up that person, causing physical injuries. This is his view of the implementation of the Act, that saying malicious things about his enemy through social networking sites would penalize him more than beating up his enemy. If this would be the thinking of many people towards the Act, then it would mean that the Act can possibly encourage people to attack their enemies physically than to bash them on the social networking sites.

Further, because of the criminal liability of libel under the Act, people will be definitely be terrified to say anything against any government agencies and officials. No one can possibly freely exercise their right to express, in good faith, their comments, protests, dissatisfactions against our government or foreign government or any commercial establishments and their products. Everyone can be restricted to do such because doing otherwise can put them in jail or be fined with a large amount of penalty.

It was also provided in the Act that any prosecution shall be without prejudice to any liability for violation of any provision of the Code ^[11]. With this kind of provision, it sounded like a promotion of double jeopardy, which our Constitutional specifically prohibits. Because of the insertion of such provision, a person accused and/or penalized of committing offenses under the Revised Penal Code may still be accused and/or penalized of committing offenses under the Act, even if such offense is committed from one and the same act. A conviction or acquittal from an offense under the RPC will not bar the filing of a new complaint, this time under the Act. And it appears to be a violation of our guaranteed right against double jeopardy. And the Act can be used by others abusively for their own convenience; to keep on pressing the other party whom they think committed an offence against them.

But with the possible implementation of the Magna Carta, people no longer need to worry whether they will be put to jail for a long time just because they expressed what they want to say, done in good faith and just for the sake of letting others know what they have experienced. With the Magna Carta, libel is clearly defined as to what constitutes a crime and what are exempted. Hence, people will be more aware whether they will be violating a law or not. In addition, libel committed using computer systems, does not of itself produces a criminal liability, but instead, only a civil liability, wherefore, the criminal liability under the Revised Penal Code and the criminal liability under the Cybercrime Act is no longer possible because of the Magna Carta. Hence, there can be no double jeopardy.

At one point, although the Act tries to promote due process of law by stating that court orders are needed before doing any action against those who are suspected of violating the Act, it has however, a provision which is deemed to be a violation of the right to due process because under its Section 19, the Department of Justice can issue an order to restrict or block access to a computer data which is deemed to be “prima facie” found to be in violation of the provisions of the Act. It means that a computer data can be blocked or restricted just by its appearance, if the DOJ assumes that it is violative of the Act, without even first investigating whether or not it indeed violates the Act. But with the Magna Carta, Senator Santiago assures that no provision similar to that of the Act shall appear in the Magna Carta because its provisions guarantee due process by obtaining first court proceedings and orders before any network or computer data will be restricted or blocked. Any action against suspected violators of the Magna Carta will always have a day in court.

Another good proposal under the Magna Carta is the creation of a separate government agency which will be taking stewardship of the information and communications sector of our country. The Magna Carta proposes that a Department of Information and Communications Technology shall be the government agency to oversee any and all developments and implementations in relation to information and communications. In which case, this sector will be taken cared of first hand by the officials who will be assigned to the responsibilities, with the help of course of other government agencies who were also given supporting responsibilities to implement the Magna Carta. Unlike with the Cybercrime Act, no proposal of a separate government agency was ever mentioned, instead, different major responsibilities to implement the Act is lodged to different government agencies.

To conclude, I would like to share what a professor in one of my subjects once told our class. He said that laws are created with the ends of attaining justice. He continued by asking us – if that is the purpose, then does that mean that all laws are just? He even mentioned the halted Cybercrime Protection Act and the newly approved Reproductive Health Bill as examples of laws being asserted to be unjust and unconstitutional. He further asks – if there are laws created to be unjust, does that mean that not all laws are just, and therefore, the purpose of attaining justice cannot be achieved? As my professor continued his discussion in class, he clarified that all laws are presumed to be just. Benefit of the doubt on the part of our legislators should be presumed when they framed the laws, having the intention of attaining justice. The justness or unjustness will be determined when the laws are already enforced and implemented. Its interpretation will depend on the perception of those implementing it and those on whom it is being implemented to. Some laws may seem unjust but if properly interpreted and implemented, they may prove otherwise. On the other hand, some laws may also appear to be just but if not properly interpreted and implemented, will as well prove otherwise.

As a realization, our laws are indeed supposed to be just and constitutional; otherwise, it would violate the rights guaranteed to us by our Constitution. Certainly, the rights, even if guaranteed by the Constitution, are not absolute as there can be justifiable and valid reasons to prevent us from exercising such. In those exceptional instances, we definitely would acknowledge such and will not assert any violation of our rights. To give benefit of the doubt to the framers of our laws, such laws, upon their passage, shall be presumed just and with the intention to promote and attain justice. And their constitutionality and justness can be questioned once they have been implemented.

Having said so, by giving benefit of the doubt to the framers of the Cybercrime Prevention Act, the Act can be said to have been correctly approved by the Legislative Department and the President. But since its constitutionality is now subject for deliberation by the Supreme Court, let us leave it up to them to properly exercise their power. Should it be declared constitutional by the high court, let us just hope that it will not be abused, and will be implemented with the intention of attaining justice. But of course, should the Senate Bill of Senator Santiago be approved, we hope that it shall repeal all that are deem unconstitutional on the Cybercrime Act, and it shall as well not be abused, and instead, be properly implemented to attain justice, which above all, is the reason for creating laws.

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Endnotes

[1] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175 – “An Act Defining Cybercrime, Providing For the Prevention, Investigation, Suppression and The Imposition Of Penalties Therefor And For Other Purposes”. This Act which is a consolidation of Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively; and Approved by the President of the Philippines on September 12, 2012.

[2] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter VIII – Final Provisions, SEC. 31. Effectivity. — This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation.

[3] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter VIII – Final Provisions, SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.

[4] http://sc.judiciary.gov.ph/jurisprudence/2012/october2012/203299.pdf. Supreme Court of the Philippines, En Banc Decision on the fifteen (15) petitions for Temporary Restraining Order against Republic Act No. 10175:

“WHEREAS, the Supreme Court, on October 9, 2012, adopted a resolution…

xxx xxx xxx

(a) CONSOLIDATE the petitions;

(b) REQUIRE the respondents and the Office the Solicitor General to COMMENT on the petitions within ten (10) days from notice hereof;

(c) SET the cases for ORAL ARGUMENTS on January 15, 2013, Tuesday, at 2:00 p.m. at the New Session Hall, New Supreme Court Building, Padre Faura St., Ermita, Manila; and

(d) ISSUE a TEMPORARY RESTHAINING ORDER, effective immediately and for a period of one hundred twenty (120) days, enjoining the respondents from implementing and/or enforcing Republic Act No. 10175 (Cybercrime Prevention Act of 2012).

NOW, THEREFORE, effective immediately and for a period of one hundred twenty (120) days, You, Respondents, your agents, representatives, or persons acting in your place or stead, are hereby ENJOINED from implementing and/or enforcing Republic Act No. 10175 (Cybercrime Prevention Act of 2012).

GIVEN by the Supreme Court of the Philippines, this 9th day of October 2012.”

[5] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327 – “An Act Establishing A Magna Carta For Philippine Internet Freedom, Cybercrime Prevention And Law Enforcement, Cyberdefense And National Cybersecurity”. This Bill was passed by Senator Miriam Defensor Santiago on November 12, 2012; and is still pending in the Committee.

[6] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327, Page 3, Explanatory Note, Senate Bill No. 3327, Introduced by Senator Miriam Defensor Santiago – “The Magna Carta for Philippine Internet Freedom is envisioned to ensure that the Philippines and its individual citizens are able to meet the challenges posed by ICT and cyberspace, able to wield it and benefit from it in charting a better future. The urgency of this legislation cannot be gainsaid, and we trust that the legislators will see the wisdom of this law.”

[7] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327, Chapter XVII, Section 65. Repealing clause – Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistent with, the provisions of this Act is hereby repealed, modified, or amended accordingly.

[8] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter I, Section 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

[9] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327, Part 1. Preliminary Provisions, Chapter 1. General Provisions, Section 2. Declaration of Policy. –

1. The State reaffirms its recognition of the vital role of communication and information in nation-building, as stated in Article II, Section 24, of the Constitution.

2. The State affirms that all the rights, guarantees, and privileges provided by the 1987 Constitution, especially the rights guaranteed by Article III, and the rights, guarantees and privileges provided by treaties and conventions to which the Philippines is a signatory and general principles of international law, shall apply to the Filipino people in their use, development, innovation, and invention of information and communications technology (ICT) and the Internet.

3. The State affirms its commitment to the people and to all nations that, in the crafting of laws and regulations governing the use of the Internet and of information and communications technology, these shall be subject to Article I, II, III, and IV of the Constitution.

4 Recognizing that art, beauty, and culture can be created on devices, on networks, and on the Internet, the State shall pursue a policy that promotes the Internet and information and communications technology, and the innovation therein and thereof, as instruments of life, liberty, and the pursuit of happiness.

5. Recognizing that the growth of the Internet and information and communications technologies both depend on and contribute to the growth of the economy, advances in science and technology, and the development of human capital, and encourage democratic discourse and nation-building, the State reaffirms its commitments to education, to science and technology, to labor, and to private enterprise. Further, the State recognizes that development, invention, and innovation for the Internet and for information and communications technology are pursuits of both the public and the private sector, and can be local, national, international, and transnational in effort. Therefore, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to encourage development, invention, and innovation through and for the Internet and for information and communications technology, in cooperation with other nations and international bodies.

6. Recognizing that the growth of the Internet and information and communications technologies affect peace and order and the enforcement of law within the national territory and across other nations, the State reaffirms its policy of cooperation and amity with all nations, and its adoption of generally accepted principles of international law as part of the law of the land, in the pursuit of peace and order and in the enforcement of law.

7. Recognizing that the Internet has the potential to become a theater of war, and that information and communications technologies can be developed into weapons of mass destruction, the State reaffirms its renunciation of war as an instrument of national policy. Therefore, consistent with the national interest, the State shall pursue a policy of “no first use” of cyberweapons against foreign nations and shall pursue a policy of cyberdefense, and shall endeavor to develop plans, policies, programs, measures, and mechanisms to provide security for Internet and information and communications technology infrastructure for and in the defense of the Filipino people.

8. Recognizing that the growth of the Internet and information and communications technologies have increased the scope and potential for participative governance, transparency, and accountability in government, the State reaffirms its policy of full public disclosure of all its transactions involving public interest, subject to such reasonable conditions as prescribed by law. Therefore, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms using the Internet and information and communications technology in the implementation of its policy of full public disclosure and in prescribing reasonable conditions therefor.

9. Recognizing that the growth of the Internet and information and communications technologies are vital to the development and flourishing of an “information society,” where anyone can create, access, utilize and share information and knowledge, and thus enable individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, the State reaffirms its commitment to the full respect for human, civil, and political rights and the dignity of every human person, and shall guarantee the same in the crafting of slaws and regulations governing the use of the Internet and of information and communications technology.

[10] http://www.chanrobles.com/revisedpenalcodeofthephilippinesbook2.htm#.UO4q2-Tqklo. Act No. 3815 – The Revised Penal Code of the Philippines, Book Two – Crimes and Penalties, Title 13 – Crimes against Honor, Chapter 1 – Libel, Section 1 – Definitions, forms, and punishment of this crime, Article 355. Libel means by writings or similar means. — 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 correccional 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.

[11] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter 2 – Punishable Acts, Section 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

Cruz, Elizabeth Joie

SY 2012-2013, Second Semester

• AMALAYER and Data Protection Act
• The Story Never Ends: Cybercrime Prevention Act 2.0

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AMALAYER and Data Protection Act

I. Taking Random Videos

We are in a generation where next latest model of android phone is received with such publicity as the US election. Tablets and android phone makes the world even smaller than what it is already. Now you can not just check information and updates in your facebook account when you are chilling at home – you can do so even when you are in the public transportation, at the mall or even at work. Sharing details of everyday life has become a part of daily routine for many. It gives the feeling of being connected with the people you care about. It defies the barrier between friends and relatives who are busy living their own life yet wanted to know what’s going on within their circles.

The positive impact of social networking and the technology that attaches to it need not be essayed. For real friends and relatives, it is the next best thing to going out and having coffee. Nowadays, the personal connection is not the only benefit of it, it has become a platform. For people who have important and not so important thing to say, this has become a very important venue. This is where the story begins. As social networking has been amplified by the ever dynamic market of tablets and smart phones, sharing of information has become even more indiscriminate. You see a funny sign, you take a picture of it and upload it in your account for the whole world to see.It is as easy as point, shoot and upload.

How many of us had seen the video of funny kid being bitten by his baby brother? How many of us shared a photo because it was just too cute or too funny? Making someone’s day by sharing these videos or photos seems to be so easy. We can’t get enough of it.

With the advent of high quality built in video camera in our mobile phones, some people felt the need to share information to the public in an instant. It has been good for most part. News programs are even capitalizing on it by making a segment wherein ordinary citizens can send their very own videos or photos of what has been going on around their area. If not for TV, some felt that sharing “compelling” videos is their ticket to internet fame. This has some cost. When making someone’s day by sharing heart-warming videos can be done in seconds, so is ruining the life of some people who were indiscriminately put in the public eye to be ostracized by the imbalance public opinion.

A. Vigilance or intruding someone’s privacy?

So the question is, when is sharing your personally captured video an act of vigilance and when is it an intrusion of privacy?

Perhaps distinction of the content of the video is essential and who is taking the video is another matter. For this discussion, I will limit the content as those that covers daily life of ordinary citizen and the person taking it to be a third person from its subject matter.

Countless times we have proved how technology helps us move on from the effects of national disaster. There are those who are willing to give updates as to the current situation of their area, some try to mobilize relief operations by calling out netizens to participate, some try to share videos and photos that will lift up the wounded spirit of our people.

Close Circuit Television (CCTV) had been a part of security measures of many establishments and even private buildings. It has been instrumental in catching criminals and preventing crime before it even happens.

A lot of people feel empowered by taking videos and sharing it to the public. They feel that they are doing the public a service and no doubt that they do in some worthy instances. But sensitivity is another issue. Everyone can take videos and share it to the public, but who will police the content? Has the boundary of privacy been crossed?

B. Right to Privacy

Technology has shoot up pretty fast and our sense of responsibility could not catch up. The truth is, the things we fight about in physical world are same matter as it is in cyberworld, only the latter is amplified 3x more. A video which is an internal joke to you and your friends may be shared by someone who think it is offensive and could stir up long threads of comments and criticism somewhere in cyberspace. Things get out of hand easily. Indeed, there is a much needed call to define the responsibility of the one possessing video and photos they took involving another persons.

Things get nasty online . There was an MMDA officer mauled by a motorist, a law-student-now-a-lawyer who unwittingly tried to pass a flooded street, and most recently, a young lady shouting at a lady guard. These online sensations received a wide range of criticisms from the public. Although their situation varies, it is difficult not to think whether these people deserved the amount of toungue-lashing they had received. Offline, aren’t we given some opportunity to settle our disputes alone?

II. AMALAYER’s situation

The situation of Paula Jamie Salvosa, the “berating lady” caught on tape at an LRT station, is quite special. There is no public officer in the video unlike the Carabuena incident nor there was a TV News interview where the “berating lady” fully participated in.

The video involves all private citizens just doing their same routine. It is not new to many people to hear their neighbours fight once in a while, and a prudent person would not go inside their house and interject. Point is, the matter between the lady guard and the “berating lady” is not really unusual, what is unusual is what people will do when they see situation like that. A lot of people may say that she is pretty much like Mr. Carabuena. The two are very different. The latter have a public officer involve and a clear act of crime is committed – he assaulted an officer. The lady guard should have known by now that passengers of LRT are customers, and customers may get angry when they feel like they are not treated well. This is not to condone the action of the young lady. With her education, she could have acted accordingly. She could have been the bigger person and settle the issue in a civilized manner, after all the lady guard was there primarily to do her job and not just to piss her off.

Very importantly, the person who uploaded this video is not related to Paula Jamie Salvosa, to the lady guard nor involve in the situation. This is where the imbalance of technology and sense of responsibility is demonstrated. While technology nowadays allows us to pretty much capture videos and photos we want, nothing gives us a right to use it to the detriment of others. The uploader of the video had done such damage to the “berating lady” by making her life unbearable as she receives tongue-lashing from everyone. I truly wonder whether Gregory Paulo Llamoso seriously think he has the right to “expose” the video to the public. Whatever happened to “mind your own business”?

III. RA 10173 Data Privacy Act

Paula Jamie Salvosa has learned her lesson the hard way. It is now our turn to learn .

The right to informational privacy has two aspects:

1) The right of an individual not to have private information about himself disclosed; and

2) The right of an individual to live freely without surveillance and intrusion ^[1]

Data Privacy Act is rooted to our right to privacy. Simply put, it meant the right to be left alone. Section 2 of RA 10173 provides:

SEC. 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.

Interestingly , this law was passed months apart from Cybercrime Act, which is now under TRO of the Supreme Court. What is so special about RA 10173 is that it vest rights to “data subject” and that it is not under any TRO. Chapter IV of the law provides:

RIGHTS OF THE DATA SUBJECT

SEC. 16. Rights of the Data Subject. – The data subject is entitled to:

(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

(b) Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity:

(1) Description of the personal information to be entered into the system;

(2) Purposes for which they are being or are to be processed;

(3) Scope and method of the personal information processing;

(4) The recipients or classes of recipients to whom they are or may be disclosed;

(5) Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;

(6) The identity and contact details of the personal information controller or its representative;

(7) The period for which the information will be stored; and

(8) The existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.

Any information supplied or declaration made to the data subject on these matters shall not be amended without prior notification of data subject: Provided, That the notification under subsection (b) shall not apply should the personal information be needed pursuant to asubpoena or when the collection and processing are for obvious purposes, including when it is necessary for the performance of or in relation to a contract or service or when necessary or desirable in the context of an employer-employee relationship, between the collector and the data subject, or when the information is being collected and processed as a result of legal obligation;

(c) Reasonable access to, upon demand, the following:

(1) Contents of his or her personal information that were processed;

(2) Sources from which personal information were obtained;

(3) Names and addresses of recipients of the personal information;

(4) Manner by which such data were processed;

(5) Reasons for the disclosure of the personal information to recipients;

(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;

(7) Date when his or her personal information concerning the data subject were last accessed and modified; and

(8) The designation, or name or identity and address of the personal information controller;

(d) Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless the request is vexatious or otherwise unreasonable. If the personal information have been corrected, the personal information controller shall ensure the accessibility of both the new and the retracted information and the simultaneous receipt of the new and the retracted information by recipients thereof: Provided, That the third parties who have previously received such processed personal information shall he informed of its inaccuracy and its rectification upon reasonable request of the data subject;

(e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

“Data subject” refers to an individual whose personal information is processed. “Personal information” refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.

“Personal information controller” refers to a person or organization who controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf. The term excludes:

(1) A person or organization who performs such functions as instructed by another person or organization; and

(2) An individual who collects, holds, processes or uses personal information in connection with the individual’s personal, family or household affairs.

I feel that there are many other laws that can be used to make the uploader of the video responsible to this mess. Atty.Mel Santa Maria in his article mentioned that :

If there is abuse, he or she can be held accountable for the injury to the one embarrassed. This is what we call in law the ABUSE OF RIGHT DOCTRINE. This precept is embodied in Article 19 of the Civil Code providing that “every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith”.

Also Article 26 relevantly provides that “every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” by not, among others, “intriguing to cause another to be alienated from his friends” or “disturbing the private life or family relations of another.” ^[2]

It is however interesting to note that RA 10173 actually defines and specify the rights of the data subject,a milestone in giving teeth to the protection of right of privacy. Clearly, when someone’s right to privacy has been violated, this law may provide definition and clarification as to the amount of responsibility and rights inlvolve among among parties.

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Endnotes

^[1] p. 29-30, Oscar Franklin Tan, ARTICULATING THE COMPLETE PHILIPPINE RIGHT TO PRIVACY IN CONSTITUTIONAL AND CIVIL LAW:A TRIBUTE TO CHIEF JUSTICE FERNANDO AND JUSTICE CARPIO, 2008.

^[2] http://www.interaksyon.com/article/48145/mel-sta–maria–amalayer-girl-may-have-overstepped-but-so-did-person-who-posted-the-video

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The Story Never Ends: Cybercrime Prevention Act 2.0

On 15 January 2013, an oral argument in the Supreme Court is scheduled to tackle the constitutionality of Republic Act No. 10175, also known as Cybercrime Prevention Act of 2012. Fifteen (15) petitions were filed against the said law which led the Supreme Court to issue a 120 days Temporary Restraining Order.

Said law was enormously criticized by netizens and media sectors. It even triggered hackers in shutting down of government websites as a sign of their protest – which was later claimed by “Anonymous Philippines.”

Some of the provision of the said law was alleged to be violative of the constitutional right of freedom of expression, privacy and due process. The most contentious provision is Section 4, which defines and enumerates the “Cybercrime Offenses,” particularly the Libel (Section 4 [c] [4]). The law provides that:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

As a law student and person familiar with some development in technology, a huge implication can be seen with this encompassing provision, if not at all vague to be considered void. The provision talks about committing libel through computer system, ^[1] a scenario wherein even a person who “share”, “retweet” or any acts which constitute reposting works that represent shared opinion in the internet regarding public issues can be considered a cybercrime offense of libel. Therefore, restricts, without any qualification, the freedom of expression of every netizens or individual using computer. This can be said to be a clear violation of our freedom of speech, which defined by Wendell Philips as “at once the instrument and guaranty and the bright consummate flower of all liberty.” Freedom of speech includes free of expression which embraces a number of cognate rights all aimed at insuring the free and effective communication of ideas from mind to mind. ^[2]

At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. ^[3]

As an individual “particle of sovereignty,” every citizen has a right to offer his views and suggestions in the discussion of the common problems of the community or nation. This is not only a right but a duty. ^[4] But with the given provision of law, devoid of regards to the constitutional right of the people, ultimately offend the constitution.

It can be noted that the trend now is to decriminalize libel and as evidence, Supreme Court headed then by Justice Reynato S. Puno even issue an Administrative Circular No. 08-2008 giving the guidelines in imposing penalty to libel. The circular, in summary, encourage judges to impose civil penalty as much as possible and refrain from imposing imprisonment which is also not addressed in the Cybercrime Prevention Acts of 2012.

The law becomes more alarming, especially for those maintaining blogs and websites, when it gives the Department of Justice an excessive power to restrict or block access to any computer data if they find it, prima facie, in violation of the law. This certainly is not only violative of the right of the netizens to due process and against unreasonable searches and seizure but also to their right to privacy under the Civil Code of the Philippines. ^[5] Section 19 of the Cybercrime Prevention Acts of 2012 provides that:

Section 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

The above quoted provision is too pervasive. It may be wisely applied to cybercrime offenses such as child pornography etc., but definitely not to all libel cases especially when it can be used in arbitrary way as it could block all computer data which criticize or express redress against the government. It is easy to see that the defect of this law may result to an evil greater than what we can imagine. The movie of “Identity Theft” and “Eagle Eye” are more illustrative of the same.

Fortunately enough, Senator Miriam Defensor-Santiago proposed another bill amending the Cybercrime Prevention Act 2012. The bill, Senate Bill No. 3327, whilst recognizing the urgent need to prevent computer-related crimes like child pornography and the necessity of expanding the applicability of the law in the world of Information and Communication Technology, also protects and upholds the Constitutional Rights of the people. The bill clearly gives guidelines and rules on how to deal with the cybercrime offense without violating the Constitutional rights of the people. For instance is the Part 2 of the bill which enumerates and define the Internet Rights and Freedoms. One of the interesting parts of the bill is the provision under Section 8, Chapter III, Part 2 which provides for the Right to Freedom of Speech and Expression in the Internet. Subsection 4 of said Section 8 provides that:

No person shall be compelled to restrict access to information on the internet or to remove published material or uploaded information from the internet except upon Order following a special proceeding for the purpose xxx

The proposed is far more conscionable than the Cybercrime Prevention Act of 2012 which is in my opinion is passed prematurely without studying other facet of law and its effects.

The bill even deals with one of the most serious issues in cybercrime which is Cyberwarfare and National Defense. Even the explanatory note of the bill gives the very reason why Information and Communication Technology must be given serious attention as this contribute to the development and improvement of our economy.

The bill also recognized and considered the International Treaties which the Philippines are bound to respect in good faith.

The Bill of Senator Santiago seems to cover everything essential (at least on paper), that is by not contravening constitutional provisions and being at par with our international obligation in securing information communication technology. The bigger challenge is how we are going to put the law into action. Though it is an entirely separate issue, focus should be put on the consequences and implications of our laws which are created with “best intentions”. As my realization, our law-makers should be aware of the implication of every law that they craft and should disregard their personal motive. More importantly, ample time in studying the subject matter of a law should be a standard procedure so that a bill will not be passed prematurely.

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Endnotes

[1] A complete, working computer. Computer system will include the computer along with any software and peripheral devices that are necessary to make the computer function. (http://www.webopedia.com/TERM/C/computer_system.html)

[2] Isagani A. Cruz, Constitutional Law, 2007 Edition. p. 200

[3] Gonzales vs. Commission on Election, 27 SCRA 835.

[4] Isagani A. Cruz, Constitutional Law, 2007 Edition. p. 201

[5] By analogy under Article 26 of the Civil Code of the Philippines.

Maray, Vanessa Fe

SY 2012-2013, Second Semester

• How does Republic Act 10173 impacts or affects my life intimately?
• Is Magna Carta for Philippine Internet Freedom better than Cybercrime Prevention Act of 2012?

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How does Republic Act 10173 impacts or affects my life intimately?

This is the first time that I created a blog and I do not know how and where to start given a topic of how Republic Act 10173 affects my intimate life.

Republic Act 10173 or otherwise known as Data Privacy act of 2012 is an act protecting individual personal information in Information and Communication System in the Government and Private Sector, creating for this purpose a National Privacy Commission and for other purposes. Data Privacy Act of 2012 has been approved by President Aquino on August 15, 2012.

Section 2 of Republic Act 10173 provides:

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

It is the policy of the State to protect our right of privacy of communication from unauthorized access of our private information or from hackers that want to harm us.

With the advent of technology, many social networking sites are surfacing catering services for the general public without fees. Registering online with these social networking sites may put a person’s privacy to an open book for netizens to look.

Facebook as one of the largest online social networking sites helped me to reconnect with distant relatives, old friends, classmates, and teachers in elementary and high school, keeps me updated to the activities of my friends, co-workers as well as meeting new friends online. I also send messages to one of my relatives working abroad through Facebook. With this social networking site I found a trusted online shop where I buy merchandises and/or pre-order items imported from Korea and Japan.

Last August, my raffle stub got picked in the leading Philippine clothing brand, Bench for “SiHae event”. SiHae is the combination of names of Choi Siwon and Lee Donghae who are members of the largest 13-member group in Korea, Super Junior. With the unending requests of fans Bench welcomed these two idols in their family and they became Bench endorser for the clothing line. At the event, my number was drawn and I am one of the few to have a group picture taken with these two idols. After the taking of the picture Siwon shake my hands. I went to Donghae and he hugged me. When I go down the stage, I went to my friends screaming who were so happy for me and my friends immediately hugged me. When I checked my Facebook account I received many friend requests. These friend requests keep on increasing for almost a week I guess. I then edited Facebook privacy settings from “public” to “private.” I used to accept friend requests as long as I see that we have many common friends even if I do not personally know him or her. I learned a lesson from other people’s mistakes and would not accept friend requests from individuals who I do not know or meet personally.

Facebook has many online users and this social networking could be used as a tool to harm others. I have read news about Facebook where a teenager was raped by the man she met on Facebook. The man is physically disabled and he dupe 13-year old girl and her parents that he was 13-year old boy in wheelchair but in fact he is already 28-years old. He further stated that his medication made him overweight and prematurely aged him. The victim’s father stated “Facebook is known as a benign and fun tool to share jokes on, but you do not know who is hiding behind the people unless you know them.” I agree that sometimes people used the identity of another person making you believe that it is him but in fact he is not. You can only be sure if you really know the person. There have been many posers or fake accounts. Using other people’s identity and putting in some private information of that stolen identity is a common tool to lure the victims. Sometimes we tend to believe that it was really someone that we know because of some information being posted on Facebook.

Section 3(g) and (l) of Republic Act 10173 provide:

SEC. 3. Definition of Terms. – Whenever used in this Act, the following terms shall have the respective meanings hereafter set forth:

(g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.

(l) Sensitive personal information refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.

I always include my personal information when buying items online as it was needed so the seller could determine that it was really me.

Twitter an online social networking service and microblogging service that enables its users to send and read text-based messages also helped me to communicate with my friends. This social networking site also gives the “followers” updated information like in twitter account of PAG-ASA where they informed netizens of the status of the typhoon.

The use of mobile phones also made communications easier. Communication would not be a hindrance for people to communicate even though they are miles apart.

With the invention of these mobile phones I stay connected with my family and friends. I used to send my mother SMS of where I am at, where I am going, if I am already on my way home, and if I got home early and she is still outside. I believe this lessened her worries about me.

Years ago I received a call from someone telling me that the university where I graduated has recommended me and she offered me a work. I nicely told the person on the other line that I am currently working. She then told me that I can work for them part-time. I asked for the job description she is offering but she told me that I should visit their office to know. She gave me the details, where the office is located, and the date and time. When the call ended I became curious and immediately went online and searched for the name of the office and I learned that it is like a scam. How did she know my name? How did she get my number? How did she know where I graduated? These questions were answered when I searched online and found my name with the school where I graduated. How about my mobile number? I remember that I typed my number in Facebook so I deleted my number there. I have been using my mobile number since college it could also be that someone gave my number to her. Maybe I am just overreacting. In the end I did not bother to go that place.

Section 25 of Republic Act 10173 provides:

SEC. 25. Unauthorized Processing of Personal Information and Sensitive Personal Information.

(a) The unauthorized processing of personal information shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

(b) The unauthorized processing of personal sensitive information shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

Section 26 of Republic Act 10173 provides:

SEC. 26. Accessing Personal Information and Sensitive Personal Information Due to Negligence.

(a) Accessing personal information due to negligence shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

(b) Accessing sensitive personal information due to negligence shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

Penalties for the unauthorized processing of personal information deserves more than the minimum penalty.

It is best that Republic Act 10173 has been approved to protect us but even if there is Republic Act 10173 to penalized those who processed personal information and sensitive personal information without authorization and to those individuals who access personal information and sensitive personal information due to negligence we should still be very careful in giving our personal information as this could put us in more harm than not.

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Is Magna Carta for Philippine Internet Freedom better than Cybercrime Prevention Act of 2012?

Information and technology has become part of our daily lives. We use mobile phones to send an SMS message or call someone directly, use Automatic Teller Machines (ATM) at the bank, use computers to surf the internet, send e-mails, and connect with friends, families, or even relatives abroad through social networking sites. ^[1] Nowadays, banking transactions can be made online. In the industry, production has increased as it is not totally dependent to manual labor. With e-commerce, the distribution, buying, selling, and servicing of products are done electronically.^[2]

Technology has benefits but also gives a negative impact. Due to modern technology, people do not interact personally with one another as often as they used to. Newspaper companies, music and movie industries have been affected by information and technology. ^[3] The American newspaper industry suffered irreversible revenue drops in advertising and print which lead to some newspaper industry to close their business. Filipino newspaper industries are adapting and some have gone digital already.^[4] Some people would buy music online for free or at a minimal cost instead of going to music stores and buying CDs. ^[5]

Republic Act 10175

The Cybercrime Prevention Act of 2012 (Republic Act 10175) was passed into law in response to hacking, cracking, identity theft, spamming, cybersex, and pornography. Republic Act 10175 has been passed as a law with the inserted controversial provision of online libel. Senator Tito Sotto proudly owned up to the fact that he was responsible for inserting the libel clause into the law. Senator Chiz Escudero called the insertion a “mistake” and has said that he’ll move to have the law repealed. ^[6] Senate President Juan Ponce Enrile stated that he will leave it to the Supreme Court to ultimately decide on its constitutionality. ^[7]

Numerous petitions were filed against Republic Act 10175 claiming certain provisions as unconstitutional and violative of the citizen’s fundamental and basic rights.

The Supreme Court issued a temporary restraining order stopping the implementation of Republic Act 10175 for 120 days.

Senate Bill 3327

Senator Miriam Defensor Santiago proposed a law entitled Magna Carta for Philippine Internet Freedom (Senate Bill 3327). Senate Bill 3327 is to replace the controversial anti-cybercrime law, Republic Act 10175.

According to Senator Santiago, a group of software designers, IT specialists, academics, bloggers, engineers, lawyers, human rights advocates were involved in the drafting of the Magna Carta and formulated the draft bill through discussions in an open Facebook group, email, Google Hangout teleconferences, and social media channels like Twitter.

Is the Senate Bill 3327 better than Republic Act 10175?

Senator Santiago said that Republic Act 10175 violates the right to privacy and the constitutional guarantee against illegal search and seizure through allowing the warrantless real-time collection. The Senate Bill 3327 on the other hand guarantees the right against illegal searches and seizures.

“The Senate Bill 3327 ensures due process by providing strict guidelines for any collection of any data, including the securing of warrants, obligating notification, and limiting seizure to data and excluding physical property,” Senator Santiago said.

Senator Santiago said that the Senate Bill 3327 mandates government agencies to provide security for the data they collect from citizens to ensure their right to privacy. The dangerous ‘takedown’ clause of Republic Act 10175, where the government may have a website or network blocked or restricted without due process of law, is absent in the Senate Bill 3327.

“The Senate Bill 3327 specifically provides for court proceedings in cases where websites or networks are to be taken down and prohibits censorship of content without a court order,” Senator Santiago said.

The Senate Bill 3327 also prohibits double jeopardy. Republic Act 10175 allows double jeopardy through prosecution of offenses committed against its provisions and prosecution of offenses committed against the Revised Penal Code and special laws, even though the offenses are from a single act. ^[8]

Conclusion

Republic Act 10175 is too broad and certain provisions are violative of our constitutional rights such as right to freedom of speech, right to privacy, right to reasonable searches and seizures, and the most controversial “online libel” which is vague. Netizens can be liable just by the act of clicking the “like” button on Facebook or retweeting posts on Twitter. Republic Act 10175 is unconstitutional.

The Senate Bill 3327 proposed by Senator Santiago is better than Republic Act 10175. The drafting of the Senate Bill through crowdsourcing is a nice one as netizens have contributed and because they are the ones to be greatly affected. If the Senate Bill 3327 the one to replace the Cybercrime Act of 2012 and be passed as a law, the netizens would be protected and at the same time the wrongdoers punished.

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Endnotes

[1] “Information and Communications Technology – Really Useful” (http://www.rug.ie/uploads/xstandard/PAGE%2069-82%20ICT.pdf)

[2] “ICT in everyday life” (http://smklangkawi.edu.my/blogict/?p=12)

[3] “The Negative Effects Of Advancing Technology On Society” (http://www.articleonlinedirectory.com/128143/the-negative-effects-of-advancing-technology-on-society.html)

[4] “Philippine Newspapers: Transitioning Pioneers Of Philippine Media” (http://www.top-destination-choice-the-philippines.com/philippine-newspapers.html)

[5] The Music Industry’s New Internet Problem – Businessweek (http://www.businessweek.com/stories/2009-03-06/the-music-industrys-new-internet-problembusinessweek-business-news-stock-market-and-financial-advice)

[6] “Digital Martial Law: 10 scary things about the Cybercrime Prevention Act of 2012” (http://www.gmanetwork.com/news/story/276434/scitech/socialmedia/digital-martial-law-10-scary-things-about-the-cybercrime-prevention-act-of-2012)

[7] Enrile: Where was Miriam when Cybercrime law was passed? (http://www.rappler.com/nation/13774-jpe-where-was-miriam-when-cybercrime-law-was-passed)

[8] “Santiago proposes Magna Carta for Internet | Inquirer Technology” (http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet)