IS THE MAGNA CARTA FOR INTERNET FREEDOM BETTER THAN THE CYBERCRIME ACT?
Republic Act
No. 10175 or “Cybercrime Prevention Act of 2012″ is a controversial law
that made thousands of Filipinos mad. The law was created to protect the
citizens from things that are happening in the cyber world. Some
computer-related crimes like hacking, child pornography, and even online libel
are viral in the internet. The law has a good purpose that will help the
victims of such crimes. Since there are no implemented laws that can punish the
people from cybercrimes, the government needs to do something. That is the
reason why they created the law. Even though it has a good intention, there are
still things that made the Filipinos mad. And that is, violating the freedom of
speech. It is very important to the Filipino citizens to express their feelings
and opinions. It is also under our constitution. Privacy is also vital to the
citizens. Of course, nobody wants to invade their privacy. In RA 10175,
provision on collection of data is connotes immediately a violation where in
fact it lacks proper information and understanding.
Senator Miriam Defensor Santiago
has consistently pursuing the Senate Bill No. 3327 also known as the Magna
Carta for Philippine Internet Freedom, Cybercrime Prevention and Law
Enforcement, Cyber defense and National Cyber security. There has been an
urgency and need to create of another law which will really protect the rights
and freedom of Filipinos in cyberspace and defining and penalizing cybercrimes,
after all software designers, IT specialists,
academics, bloggers, engineers, lawyers, and human rights advocates already
approached her office with a draft of the MCPIF. It is stated that freedom of
speech is important and a right of each Filipino that must not be deprived. The
general purpose of which she has said in one of the articles of the senate
website, “‘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.”[1]
In the same manner, in the long
run it would be beneficial for the country and to its users because according
to statistics, the global offshore services market is growing at a healthy
albeit slower pace, and will more than double by 2016. Companies now regard outsourcing far more as
a means to reduce costs for business operations. Overall, the outlook for
Asia/Pacific's BPO market remains positive with the Philippines aiming for 10%
of the total BPO market or about US$25 billion.[2]
The bill also
stated that the internet must be an open network, so it means that everyone can
access the internet and only the private network can restrict or limit the
interaction in the internet. It has a lot of other statements such as Promotion
of network neutrality, Promotion of universal access to the Internet, Right to
privileged access to devices, Right to freedom of speech and expression on the
Internet, Protection of the freedom to innovate and create without permission,
Right to privacy data, and Right to security data are among others. In
conclusion, it stated that we can do anything in the cyber world but if the
State thinks that it is against the law, then that’s the time that someone will
be punished.
Senate Bill No.
3327 differs from Republic Act No. 10175 on the following provisions:
1) Issues on Libel. – Libel in RA
No. 10175 as indicated in Section 4(4), Section 6 and Section 8 are penalized
under the Revised Penal Code although it provides for a one degree higher
penalty where in SB 3327, libel is clearly defined in Section 33 specifically
classified as Internet libel where it treats such as a civil liability rather
than a criminal act as stated in Chapter 8 (Penalties) of said bill. Civil liability is better on one side because
it brings to the bottom line of whether the offended person will be compensated
for the damage/s done on his part, on the other hand, leaving behind the
criminal liability would be detrimental on the long run since it would not
benefit the general public in instilling the discipline so as to avoid the same
happening again. I think it would be
better if there would be a combination of both the criminal and civil aspect so
as to benefit not only the general public but also the offended person as well.
2) Right against Illegal Searches and Seizures. - As provided in the 1987 Constitution,
Article III Section 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.’[3]
RA 10175 allows the
warrantless real-time collection of traffic data as provided in Section 12 of
said act. This is with due cause and with certain limitations. I would not agree that this violates the
Constitution because the latter provides for the general rule however,
exceptions are allowed in certain situations provided they are specifically
stated so as not to violate such right. 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. Moreover, before obtaining the court
warrant there would still be a need of showing basis for such approval and
grant, hence, there is certain guideline which cannot be attributed to
violating the right against illegal search and seizure. On the other hand, the MCPIF, provides for
specific guidelines as seen in Section 28 of said bill in illegal and arbitrary
seizure as well as other provisions on obtaining or collection any data or
information privacy and security of data, protection of intellectual property,
notification and providing stricter penalties to further protect the data.
3) Issues on Right to privacy. In the MCPIF, the role of government agencies and law
enforcement agencies are ascertained and are given responsibility in its
implementation as provided in Chapter IX of said law. Furthermore, section 27 provides for
violation of data security like hacking, cracking, phishing and violating
another act – Data Privacy Act. On the
other hand, the criticism on the ‘takedown’ clause has been misunderstood in
the sense that Section 19 of RA 10175 starts with the phrase, ‘When a computer
data is prima facie found to be in violation of the provisions of this Act…’[4]
which shows that intrusion to privacy is not the main target but rather the
protection of data and all other persons and things affected. When we speak of ‘prima facie’, it is without
a doubt and found to be with basis and supported with evidence that such person
has violated this Act, hence, leaves the DOJ no choice but to issue an order to
restrict or block access to such computer data.
Never will it occur when such accusations be found to be baseless and
unfounded, only then will it lead to violation to right of privacy. The opinion on
this Section which is without due process of law is weak in the sense that it
entails a strong proof to really show that such violate said due process of law
and no reasonable grounds to accuse and/or arrest depending on the gravity of
the situation. In the same way, what
MCPIF is adding to this issue specifically having court proceedings in cases
where websites or networks are to be taken down and necessary court orders are
supportive of RA 10175 in order also to ensure that the respective agencies
would not abuse the authority given to them but to use it for the purpose/s it
has been assigned thereto.
4)
Issues on
Double Jeopardy. Double jeopardy
is defined as “A second
prosecution for the same offense after acquittal or conviction or multiple
punishments for same offense. The evil sought to be avoided by prohibiting
double jeopardy is double trial and double conviction, not necessarily double
punishment.”[5]
MCPIF
provides for respective penalties in Chapter VIII of said act, Applicability of
the Revised Penal Code, Penalties For Specific Violations of The Magna Carta
for Philippine Internet Freedom, Penalties for Violations of the Magna Carta for
Philippine Internet Freedom Affecting Critical Networks and
Infrastructure, Penalties for Other
Violations of The Magna Carta for Philippine Internet freedom, Penalties for
Violations of The Magna Carta for Philippine Internet Freedom Committed by a
Public Official or Employee and Liability Under the Data Privacy Act, the Intellectual
Property Code, the Optical Media Act, the Anti-Child Pornography Act of2009,
the Revised Penal Code, and Other Laws. As
said by Senator Santiago, SB 3327 prohibits double jeopardy while 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. I would not agree with this opinion where in
fact as provided in Section 5 of SB 3327, “Nomenclature notwithstanding, the
provisions of Book I of the Revised Penal Code shall apply suppletorily to the
provisions of this Act, whenever applicable. The provisions of special laws
shall apply as provided for by this Act”.
This shows that the said bill may also lead to double jeopardy where in fact
does not. In the same way that RA 10175
does not automatically result to double jeopardy.
5) Competent Authorities. RA 10175
provides in Sections 24, 25 and 26 the creation of a Cybercrime Investigation
and Coordinating Center (CICC) for policy coordination among concerned agencies
and for the formulation and enforcement of the national cybersecurity plan
while in S.B. No 3327 a proposed Department of Information and Communications
Technology (DICT) is introduced , the creation of which is currently pending
before Congress which the MCPIF prepares the proposed DICT, law enforcement
agencies, and the military with provisions for handling cybercrimes. Examples
of which are provided in Section 47 of the bill provides amendments to the AFP
Modernization Act and Section 48, on mandating the Philippine National Police
and the National Bureau of Investigation to combat cyberterrorism. On this part, there is no conflict but rather
RA 10175 is further developed by SB 3327 in order to ensure protection against
cybercrimes and the like. If both laws
are reconciled, it would gear towards growth and responsibility to the
authorities as well as ensure protection on the users. After all, more manpower working for the same
purpose would lead to faster and efficient results which would lead to the country’s
growth.
6) ICT for national development. SB 3327 provides for areas of improvement and
opportunities for development in the field of Information Computer Technology
through constant updating and upgrading of
advances in information technology, such as those involving consumer
welfare and copyright laws. In this way,
there will always be an opportunity to know and gain a deeper understanding on
the different areas of the ICT in order to know how to handle and attend to the
issues and concerns of the general public.
7) Crowdsourcing. Crowdsourcing is an online process of getting work done by tapping
people on the Internet who volunteer their talent and skills. If this will be passed, this concept shall be
introduced to different department and agencies. One of those has already started which is the
Philhealth system. The Philippine Health
Insurance Corporation (PhilHealth) launches the first of its ‘Crowdsourcing for
Health’ initiatives using GoogleMaps which encourages the online crowd to help
map all health facilities in the Philippines.[6] In this way, it would be easier and more
convenient for the public to locate the health facilities and to be able to
maximize the assistance and services offered by Philhealth.
In summary, there are certain differences between
Republic Act No. 10175
and Senate Bill No. 3347 which are on issues on libel, right against illegal searches
and seizures, issues on right to privacy, issues on double jeopardy, competent
authorities, Information Computer Technology for national development, crowd sourcing. In
my opinion, the Senate Bill proposed by Senator Miriam Defensor Santiago is
better and an improved law regarding cyber crime because the bill is generally balanced
and an improved version of the RA 10175.
It provides specific details on each section giving no opportunity for the
agencies assigned to the enforcement and implementation to take advantage of
their position and authority given to them.
Moreover, the Senate Bill introduces new concepts which are still
related with cybercrime and in the long run would benefit the general
public. It values the rights of the
citizens and protects the citizens from being a victim of cyber crime. However, the laws and other concepts
introduced by RA 10175 should not be cast aside but rather should also be taken
and incorporated with the new Senate Bill in order that the in the end, the
citizens will be well informed of the realities on cybercrime, would understand
their rights and obligations, would participate and be involved with the development
and would support and obey the authorities implementing such and finally, to
contribute to the economic growth and the future of information technology in
the country.
[1] November 30, 2012 .Magna Carta for Internet Freedom to
Replace Anti-Cybercrime Law. http://www.senate.gov.ph/press_release/2012/1130_santiago1.asp
[3] http://www.chanrobles.com/article3.htm
[4] http://www.senate.gov.ph/lisdata/1446312119!.pdf
[5] http://legal-dictionary.thefreedictionary.com/double+jeopardy
[6]14 March 2012. PhilHealth introduces 'Crowdsourcing for Health'
Initiatives. http://www.pia.gov.ph/news/index.php?article=1781331709149
