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. Cliché-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.
[i] http://www.slideshare.net/NanLieopairoj/asia-pacific-digital-overview-2014
Last Accessed May 30,2014
Last Accessed May 30,2014
[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
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
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
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.
[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.
(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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