Tuesday, May 6, 2014

Blog 1: Improving Senate Bill 53

Technology and the law: Improving Senate Bill No. 53 otherwise known as The Magna Carta for Philippine Internet Freedom.

        In a country composed of thousands of islands and surrounded by bodies of water, you’d think that communication among people from different places would be difficult. That connecting and interacting with those coming from far down south or those from way up north would be impossible. However like all things, change is inevitable. Clich√©-ish as it may be, it is also true. In a span of 20 years, our society has evolved from writing written mail to sending text messages or emails. Gone are the days when pictures were needed to be developed and kept in a chest. Goodbye to the times when people actually enjoyed a meal together, rather than taking a picture of their food and be distracted by all the gadgets they have. Technology has incorporated itself in our daily lives and subtly is now viewed as a necessity for those who can and those who cannot afford it.

In a recent study, it is shown that the Philippines have 38M Internet users and an average time spent of 6.2hrs on the Internet using computers and 2.8 using mobile phones. A social media count of 34M users and an average time spent of 4hrs per day. Mobile Subscription counts of 107M subscribers as well as a mobile broadband count of 4M users.[i] Like the renaissance[ii] of old which made a huge impact in the world, the digital age is now upon us; rapidly changing, blossoming and evolving at a rate that is quickly changing the world as we know it. 

Although such rapid growth and change has provided for many benefits and positive results, such change also entails the danger of entities that would use such technology particularly the Internet to victimize others. The increased usage of the Internet gave rise to numerous criminal acts like: online scams, cyber sex, child pornography and even bullying as well as libel. However, in light of these acts that were rampantly increasing, punishment was never given as such due to the fact that our laws were not equipped to handle such acts. Even with the creation of the E-Commerce Law (RA 8792), the Data Privacy Act (RA 10173) and the Rules on Electronic Evidence (AM 01-07-01) such laws were not enough to tackle the controversies arising out of the vast world of the World Wide Web.

In consideration of the inadequacies of these laws to have a cutthroat solution on the matters at hand, RA 10175 was passed which is also known as the Cyber crime prevention Act of 2012. This law aims to define Cyber crime, provide for the prevention and protection against such as well as the procedure and penalties. Though it seems that such law was the answer to ultimately prevent Cyber crime and penalize them, that was hardly the case as RA 10175 was met with harsh criticisms since according to some it violates constitutional rights and it provides the government with much power over the Internet users. After the court ordered TRO on the implementation of RA 10175, such court held that certain provisions were unconstitutional, most noteworthy was the “collection of traffic data”[iii] where most argued was a deprivation of their right to privacy, freedom of expressions and rights against unreasonable searches.

In view of the decision of the court, Senator Miriam Defensor Santiago filed Senate Bill 53 on November 12, 2012 also known as the Magna Carta for Philippine Internet Freedom in which the senator purports to be “anti-cyber crime law 2.0” If such bill is passed, it will repeal the controversial RA 10175. In her press release, the senator stated “her bill will protect the rights and the freedom of Filipinos in cyberspace while defining and penalizing cyber crimes”.[iv] She also stated that in MCPIF, libel shall be treated as a civil liability as opposed to a criminal act. MCPIF according to her, was a product of crowdsourcing which is an online process of getting work done by tapping on people on the internet who volunteer their talent and skills. As such, the bill was formulated not only by government researchers but also among common Internet users who experience problems in the internet in their daily lives.

Senate Bill 53 is An Act Establishing A Magna Carta For Philippine Freedom, Cyber crime  Prevention and Law Enforcement, and Cyber defense and National Cyber security. As such this paper aims to recommend improvements in the bill so as to further achieve its goal of a balance between the internet freedom of the people and the ability of the government to prevent, battle and defeat all forms of cyber crime.

Universal Access as mentioned in section 5(a)[v] in my opinion needs to be improved the most in this bill. The main essence of said bill is the internet freedom of every Filipino citizen, however even if the government tries to protect such right by defining cybercrime and laying out guidelines to deal with that, it wont mean a thing if a citizen is not online or is able to access it regularly. Therefore, what the government needs to accomplish in line with the main essence of the bill is to make the country Internet ready. This can be done by setting up nationwide free wi-fi in which other countries are doing right now[vi] or by making major cities as primary hotspots for rural areas and expand hot spot zones for barangay halls and city halls in the provinces and by adding up the hotspot of rural and urban areas, the country will somehow be blanketed with free wifi giving life to the term universal access. Basically by giving universal access to the country a new market will eventually develop which is the online market wherein it should be easier to market and advertise products owned by businessmen whether belonging to large companies or be it a small town business. Provided however, regarding small town businesses that they are well educated in handling the online world as it is really easy to get scammed and tricked into selling and shipping with getting nothing in return.

In relation to Section 5, subparagraph (b)[vii] and (e)[viii] needs to be improved as well. Subsection (b) pertains to the limitation or suspension of a person’s right to unrestricted access, problem with this is that there should be certain standards as to the imposition of the limitation or suspension as such reliance to the discretion of the cyber crime court may seem hazy without certain standards present. Subsection (e) on the other hand also need standards to determine what is a reasonable ground to restrict access to the internet in line with what is actual or legal threats.

Another point of concern regarding the bill is the need to spread corporate knowledge about the proper use of the Internet. Therefore it should be mandated that educational institutions should provide for courses that would establish the do’s and don’ts when it comes to using the internet including but not limited to proper etiquette, overview of what are cyber crimes as well as being responsible in handling personal data and information so as to prevent being victimized. It does not take a genius to figure out that most users in the internet are probably in the teen years to early adulthood and are therefore more susceptible to being victimized online. Because the internet is a vast and free world it really is hard to rely solely on the protection provided for by law, therefore internet users should be well informed in the manner to better safeguard themselves and shield them from any these online criminals.

Sec.9 (b)[ix] concerns me since it allows a person to employ any means to protect his data or network. There should be at least a non-exclusive list as to what are the allowable means for such protection of data and network. Having the right to employ means is just too vague a phrase to leave it at that.

Also Sec.10 (d) and (e)[x] needs to be revised as well, Subsection (d) tackles the presumption that the parents or the guardians of a minor also agree to the terms and conditions of an end user license agreement. This provision fails to take into account that not all minors are supervised 24/7 by a parent or a guardian. With the numerous number of internet computer shops and the availability of connectivity via a mobile phone or handheld device, it is impossible to monitor a minor 24/7 and as such this provision needs to be revised. The same sentiment goes to subsection (e), with the internet becoming readily accessible it is impossible to monitor a minor and witness all the movements he makes. Therefore to presume that any intellectual infringement made by the minor was with the knowledge of the parent or guardian is not right. Therefore it should be revised and improved as to when a parent or guardian is liable for the acts done by a minor without their consent or supervision.

Section 13[xi] of senate bill 53 provides for the transparency and disseminating information regarding the government as it is the right of every Filipino citizen to know what the government is doing, what has been done, and what are the future plans. Although in light of recent controversies bombarding government officials like the pdaf scam and the nondisclosure of assets that may have put public opinion not in their favor, going for transparency to win back the trust of the public is towards the right direction. However as stated earlier it wont be easy. First of we go back to the issue that not every one is educated enough to use the computer. That is the number one roadblock in trying to make the country an Internet friendly country.  Even if the government provides for websites in which information are to be kept not all can see such information. Majority of the population wont be able to see much less read whatever it is posted on the site. Second, how safe is the government websites that disseminates such information. Its not too long that the government websites were being attacked and hacked, so question now is how safe is the information posted there. Third, what are the practicable and economical limits that information can be made public by the government. I think that criteria or standard or nonexclusive list will suffice in providing the public what to expect and not to expect. Lastly is the computer the only medium in which to disseminate information. Will the government fund for digital billboards to provide information to the local tricycle driver or will he need to go to a local computer store to look and find out about the government.

With the creation of the Department of information and Communications Technology, under sec 15[xii], one of the purposes of such is the endeavor of providing for a universal access and high-speed connectivity for reasonable costs. However the market for the internet service providers in our country are dominated by large companies like globe, smart, sky cable, pldt and the like. How can the DITC balance high-speed connectivity with reasonable costs when large companies dominate the market. Will giving off incentives help in achieving their goal or will the country continue to be one of the slowest internet providers in the world. In improving this bill, there must be a guideline as to how to balance the profit earned by the large companies but also have them provide for a faster connectivity.  On a side note, regarding LTE companies and the services they render, will the DITC help in disseminating information such as the hidden charges coming from those large companies.

The formation of the Department of Information and Communications Technology is also accompanied by the creation of the cyber crime court[xiii] that shall be composed of judges with an academic or professional background in the realm of ICT. As such the same shall ensure that decisions on the matter are held and acted upon with the knowledge and experience judges equipped to handle such problems arising out of ICT.

The Magna Carta amended the Public Telecommunications policy of the Philippines; now under the bill end users have been empowered through the bill by allowing such end users the option to choose their own internet connection with any telecommunications company without violating their contracts. But to further improve the bill, it must mandate that service providers should provide for the services in which they advertise. What happens usually is that clients of these service providers are locked up for a period of time and can only switch different service providers after the lapse of such locked up period. In these locked up period however, most of the time the service received by the clients are not up to par as what they were led to believe in the first place. Therefore the bill should help these consumers by providing a policy that such service providers should deliver upon what they advertise. Included in this is that information they give out must be accurate and true and must not be misleading to the consumers. The bill should also provide for a relief for the consumers when such service provider fails to live up to what they led the former to believe. In doing so a harmonious interaction between the consumers and the service providers may be had and a balance between consumer rights and service providers’ profits shall exist.

Another point of emphasis that this bill provides is the fact that it repeals the Cyber crime Prevention Act of 2012 or RA 10175 due to the court rendering that some provisions contained in it are considered unconstitutional therefore this Magna Carta aims to regulate the use of the internet without violating the rights of the citizens in the process. Because the changing world moving forward to fast due to the development of these technological advances that are being produced, our laws should also be improved to cope with these changing times. Not only is the Magna Carta needed to be revised to incorporate the changing world, so should our other laws. We are heading in a future where technology is a apart of our daily lives, if our laws are not properly equipped to handle with that then chaos and disorder will surely follow. For example, a revision of the Revised Penal Code should be in order to accommodate the penalties and sanctions appropriate in our time now. In our world today, most if not all syndicates are resorting to the use of ITC to commit crimes since the law on cyber crime is a young academic area wherein even the most powerful nations in the world are struggling to contain. For us to combat these fast growing times, it is not enough that we define what cyber crime is, bring about measures as how to contain it or create an agency namely the DITC to help in bringing about an age of Digital growth in our country or create the cyber crime courts as the primary grievance mechanism. We also need to update our penal sanctions and penalties to incorporate the modern times we have now. In time labor laws should also be able to incorporate ITC since there are workers who are now using the internet as a source of work to survive.

Included in the repealed cybercime law of 2012 is a provision related to “cyber-squatting”[xiv] as mentioned in the Magna Carta, however the question that needs to be asked is whether the government may intervene on the issue of such “cyber-squatting” when such activity is solely within the regulatory power of a private entity. The one responsible for monitoring whether its clients are indeed acting within the purview of the law of what cyber-squatting is the Internet Corporation for Assigned Name and Numbers (ICANN). In Senate Bill 53, the provisions on cyber-squatting was altered in a way that said act would be subject to both the IPC and other relevant laws as well as the policies of the ICANN.[xv] Therefore it is important to include in the cybercrime court’s jurisdiction that should any question regarding the legality of the ICANN

Section 50 (a)[xvi] provides for ICT enabled prostitution however the definition is unclear to me. The legal definition of prostitution is the act of offering one’s self for hire to engage in sexual relations[xvii]. However in the Bill it states that provided the services shall be performed by one or more unwilling third-party adults under threat or duress. The way I see it, if the third-party which is the woman is willing to offer sexual relations in exchange for monetary value then under the definition of what the Bill states such is not tantamount to ICT enabled prostitution. Also if such third party is unwilling adults but not under threat or duress then is it still ICT prostitution add to that the circumstance that such 3rd party adult is willing but is being pressured anyway to do it will that be ICT enables prostitution. The definition of what an ICT enabled prostitution needs to be is too vague. It is limited to the fact that such 3rd party is unwilling and must be under duress or threatened. Let us not forget that there are some out there who looks at prostitution as the only way they can earn a living. Some are actually willing to provide sexual relations and offer themselves for monetary value. It is up to the Law to protect the honor of these 3rd party adults whether they like or not but the law must first establish what is an ICT enabled prostitution to be able to protect these 3rd party adults.

Section 50 (b) tackles the subject of what is to be considered as an internet hate speech. However reading the provision, the term “call” as specified in subparagraph (ii) must be properly addressed to qualify what it truly means. Subparagraph (ii)[xviii] provides the need for a “call” before an illegal act for an internet hate speech will be punishable. The problem lies now if whether or not such “call” needs to be expressed for it to be within the parameters of what is violative of an internet hate speech. If there was no express calling for illegal acts but in some way others were “called” to commit such acts is that punishable as internet hate speech. There are many ways to “ call” and it can be interpreted in many different forms. Therefore to improve the bill the term “call” must be specified as to mean what exactly.

In relation to what was stated earlier, not all are ready for the world dominated by ICT. However if we wish to transcend from this generation to the next, we must be able to provide ourselves the safeguards that we need to protect us from these cyber crimes as early as now. That is why I think it is important that this bill set out the standards or at least mandate a policy that every law enforcement agency whether the PNP of the AFP or the Air force or the Navy are able to provide assistance in preventing cyber crime. That is why there is a need to incorporate cyber defense in the training of our armed forces as well as local security agencies. It would be beneficial for us if all of our capable officers are equipped to handle complex situations such as a cyber attack, cyber espionage, cyber terrorism and the like. It is the same as learning basic survival aid, such simple matter like the CPR can save a life maybe a few tap on the keyboard here and there can save a city or a province or even a company from the threat a cyber attack.

In conclusion, the aim, purpose and objective of SB 53 is heading in the right direction. However, in order to achieve such goals, a strict implementation of the law is required as well as discipline not only from the citizens but to those who are implementing the law. More often than not, it is those who have the power that actually find the loop holes in the law and use that circumvent what is right and wrong. This Bill is the answer to the problems of every citizen who uses the Internet as well as those who are still slowly being familiar with it. The Bill tackles almost everything if not everything but for a few minor changes needed. This bill serves as a starting point that the country is indeed ready for a more advanced technological stage. Hopefully the passing of this bill will not stop there, it is up to the government to implement it and to interpret as such when problems arise.

[ii] Renaissance : a period of new growth (http://www.merriam-webster.com/dictionary/renaissance) Last Accessed May 30, 2014

[iii] 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.

[iv]press release - "After the RH Law: Magna Carta For internet Freedom"  http://www.senate.gov.ph/press_release/2013/0703_santiago1.asp 
        Last Accessed May 30, 2014
  Kevin Lagunda - " Group Pushes for Alternative Law"  http://www.sunstar.com.ph/cebu/local-news/2013/09/19/group-pushes-alternative-law-304083  
         Last Accessed May 30, 2014

[v] sec.5 (a) the state shall, within its jurisdiction protect and promote universal access to the internet

[vi]Skift Rafat Ali - "Taiwan Offers Free Wi-fi to all foreign tourists"  http://travel.cnn.com/taiwan-offers-free-wi-fi-all-foreign-tourists-251146  
         Last Accessed May 30, 2014

[vii] sec.5 (b) a person’s right to unrestricted access to the internet may, upon discretion of the appropriate cybercrime court whose jurisdiction is defined in this act, be suspended as an accessory penalty upon final conviction ….

[viii] Sec.5 (e) No person or entities offering internet access for free, for a fee, or as an extra offering separate from the services already being offered, including but not limited to any hotel, restaurant, commercial establishment, school, religious group, organization, or association, shall restrict access to the internet or any other public communications network from within its private network, or limit the content that may be accessed by its employees, student, members, or guests, without a reasonable related to the protection of the person or entity from actual or legal threats, the privacy of others…

[ix] sec.9 (b) any person shall the right to employ means, whether physical, electronic, or behavioral, to protect the security of his data and networks over which the person has ownership.

[x] Sec.10 (d) notwithstanding existing provisions of law, it shall be presumed that the parents or guardians of a minor shall have the provided agreement and shall be bound to the terms of an end user license.
              (e) notwithstanding existing provisions of law, it shall be presumed that any infringement of intellectual property rights by a minor was done with the knowledge and consent of his parents or guardians.

[xi] Section 13 : transparency in governance and freedom of information…

[xii] sec.15 (d) ensure universal access and high-speed connectivity at fair and reasonable costs

[xiii] Section 66. Cybercrime courts. –
(a) Designation of Cybercrime Courts and Promulgation of Procedural Rules. – The Supreme Court shall designate the court or courts, manned by judges of competence, integrity, probity and independence in the practice of law, and competent in matters related to the Internet and information and communications technology, that will hear and resolve cases brought under this Act and shall promulgate the rules of pleading, practice and procedure to govern the proceedings brought under this Act.
(b) Qualifications of the Presiding Judges of cybercrime courts. – No person shall be appointed a Presiding Judge of the Cybercrime Court unless he:
(i) is a natural-born citizen of the Philippines;
(ii) is at least thirty-five (35) years of age;
(iii) has been engaged in the practice of law in the Philippines for at least ten (10) years, or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite; and,
(iv) has an academic or professional background in information and communications technology, computer science, or engineering; or has proven a high degree of competence in the use of the Internet and information and communications technology.
Court personnel of the Cybercrime Court shall undergo training and must have the experience and demonstrated ability in dealing with cybercrime cases and other cases related to the Internet and information and communications technology.
[xiv] . 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

 (6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.

[xv] Section 48. Infringement of Intellectual Property Rights.
(c) Cybersquatting. – Subject to the Intellectual Property Code of the Philippines and other relevant laws, and the Uniform Domain Name Dispute Resolution Policy of the Internet Corporation for Assigned Names and Numbers (ICANN) or any policy of ICANN or successor-in-interest superseding it, it shall be unlawful for any person to register or otherwise acquire, in bad faith to profit or to damage, a domain name that is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; or
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name

[xvi] Sec.50 (a) ICT enabled prostitution – it shall be unlawful for any person who by means of a device, equipment, or physical plant connected to the internet or to telecommunications networks, or in connivance with a 3rd party with access to the same shall use the internet or telecommunications networks for the purpose of enabling the exchange of money or consideration for services of a sexual or lascivious nature, or facilitating the performance of such services; provided, the services shall be performed by one or more unwilling 3rd party adults under threat or duress

[xviii] Section 52. Internet Libel, Hate Speech, Child Pornography, and Other Expression Inimical to the Public Interest. –
 (ii) Malice as an essential element of internet libel. – Internet libel shall not lie if malice or intent to injure is not present.

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