Supreme Court Decision on the Cybercrime Act of 2012

This is a searchable text version of a Supreme Court press briefing, addressing the Court’s ruling on the Cybercrime Act of 2012, published 18 February 2014, and originally published by Philippine public news site Interaksyon.com.


Press Briefing – 18 February 2014

The Supreme Court En Banc, today, acted on the following matters, among others, on its Agenda:

G.R. NO. 203335 (Jose Jesus M. Disini Jr., et al., petitioners, v. The Secretary Of Justice, et al., respondents) I G.R. NO. 203329 (Louis Biraogo, petitioner, v. National Bureau of Investigation, et al., Respondents) I G.R. NO. 203306 (Alab Ng Mamamahayag [ALAMl, petitioner, v. The Office Of The President, at al., respondents) I G.R. NO. 203359 (Senator Teofisto Dl. Guingona III, petitioner, v. The Executive Secretary, et al., respondents) I G.R. NO. 203378 (Alexander Adonis, et al., petitioners, v. The Executive Secretary, et al., respondents) I G.R. NO. 203391 (Hon. Raymond v. Palatino, Et Al., petitioners, V. Hon. Paquito N. Ochoa Jr., et al., respondents) I G.R. NO. 203407 (Bagong Alyansang Makabayan Secretary General Renato M. Reyes Jr., et al., petitioners, v. Benigno Simeon C. Aquino III, et al., respondents) I G.R. NO. 203440 (Melecio S. Sta. Maria, et al., petitioners, v. Hon. Paquito Ochoa Jr., et al., respondents) I G.R. NO. 203453 (National Union of Journalists in the Philippines (NUJP), et al., petitioners, v. The Executive Secretary, et al., respondents) I G.R. NO. 203454 (Paul Cornelius T. Castillo, et al., petitioners, v. The Honorable Secretary of Justice, et al., respondents) IG.R. NO. 203469 (Anthony Ian M. Cruz, et al., petitioners, v. His Excellency Benigno S. Aquino III, et al., respondents) I G.R. NO. 203501 (Philippine Bar Association, Inc. (PBA), petitioner, v. His Excellency Benigno S. Aquino III, et al., respondents) I G.R. NO. 203509 (Bayan Muna Representative Nery Colmenares Jr., petitioner, v. The Executive Secretary, et al., respondents) I G.R. NO. 203515 (National Press Club of the Philippines, Inc., petitioner, v. Office of the President, et al., respondents) I G.R. NO. 203518 (Philippine Internet Freedom Alliance, et al., petitioners, v. The Executive Secretary, et al., respondents) I

The Court PARTIALLY GRANTED the reliefs sought in the 15 consolidated petitions challenging the constitutionality of Republic Act No. 10175 (The Cybercrime Protection Act of 2012).

The Court, through Associate Justice Roberto A. Abad (Velasco and Perlas-Bernabe, JJ., no part), declared as UNCONSTITUTIONAL sections 4(c)(3)1, 12 and 193 of Republic Act No. 10175 (The Cybercrime Law) to be UNCONSTITUTIONAL. Section 4(c)(3) penalizes the posting of unsolicited commercial communications, section 12 authorizes the collection ‘or recording of traffic data in real-time while section 19 authorizes the Department of Justice to restrict or block access to suspected computer data.

The Court also ruled on the constitutionality of online libel when it further declared that section 4(c)(4), which penalizes online libel,4 is NOT UNCONSTITUTIONAL with respect to the original author of the post but UNCONSTITUTIONAL only where it penalizes those who simply receive the post or react to it.

It also declared that section 55, which penalizes anyone who aids or abets the commission of cybercrimes and anyone who attempts the. commission of cybercrimes, is NOT UNCONSTITUTIONAL in relation to the commission of the following cyber-offenses: (a) Illegal Access under §4(a)(1); (b) Illegal Interception under §4(a)(2); (c) Data Interference under §4(a)(3); (d) System Interference under §4(a)(4); (e) Misuse of Devices under §4(a)(5); (D Cyber squatting under §4(a)(6); (g) Computer-related fraud under §4(b)(1); (h) Computer-related identity theft under §4(b)(3); and (i) Cybersex under §4(c)(1), but UNCONSTITUTIONAL only in relation to the offenses punished by: [1] Child pornography under §4(c)(2); Unsolicited commercial communications under §4(c)(3);and online libel under §4(c)(4).

The Court also ruled that section 7,6 on prosecution under the Revised Penal Code as well as RA 10175, is UNCONSTITUTIONAL as far as it authorizes the prosecution of an offender under both section 4(c)(4) (online libel) and Article 3537 of the Revised Penal Code (libel), and also where it pertains to section §4(c)(2)8 (child pornography) for being in violation of the prohibition against double jeopardy.9

 


Footnotes

1 SEC. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxx

(c) Content-related Offenses:

xxx

(3) Unsolicited Commercial Communications. – The transrllissioll of cOlllmercial electronic witll the use of computer system which seek to advertise, sell, or offer for sale products and communication services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or’ administrative announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic comlllunication contains a simple, valid, and reliable way for the recipient to reject. receipt of furtller comlllercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic comlllunication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

2 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 comlllunication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

Ali 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: (I) 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.

3 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 001 shall issue all order to restrict or block access to such computer data.

4 SEC. 4. Cybercrime Offenses. Th~ following acts constitule the offense of cybcrcrime punishable under this Act:

(4) Libel. – The unlawful or prohibited acts of libel as defined in Article 353 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

5 SEC. 5. Other Offenses. – The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission ofCybercrime. – Any person who willfully attempts to commit any of tile offenses enumerated in this Act shall be held liable.

6 SECTION 7.Liability Under Other Laws. – A prosecution undcr this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

7 ARTICLE 353. Definition of Libel. – A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circulllstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

8 Child Pornography. – The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

9 On this matter, the Court noted that online libel is admittedly not a new crime but one already punished under Art. 353; section 4(c)(4) merely establishes the use of a computer as another “means of publication.” For this reason, charging the offender under both laws would he a violation of the guarantee against double jeopardy under Article III, section 21 of the 1987 Constitution.

Why a Philippine telco’s speed cap is a bad idea

Update (7 Feb 2014, 1424H): Since posting this entry, friends and other users of Globe Telecoms broadband services have chimed in.  It occurs to me that folks at Globe and NTC need to verify the claims I (and other subscribers) have made.  To speed things along – i.e. for referencing agent call logs, subscription history – details of my old Globe account include:

  • Subscriber: Antonio Victor Andrada Hilario
  • Account Number: 61523358
  • Subscription: Tattoo Unli w/o voice, plan 999.  Terminated February 2014 after 36 consecutive billing periods.

The telecoms sector needs competition.  To the board of Globe Telecoms:  You can do better than this.  Resolve the issue.


I write web applications for a living.  In the course of a good day, I’m able to put in about five or six solid hours of thinking about some set of features of the program, some behavior of the sites my team and I are building, and writing software to implement those features and behaviors.  It’s labor which amounts to something roughly six to twelve paragraphs of a master’s thesis every day – and it is, suprisingly, just as tiring.  Writing software has that kind of rigor to it:  The ideas you’re assembling need to come together cleanly – expressing your design intent, cleanly, to other people who’ll read (and elaborate upon) what you’ve crafted, while also able to compel machines of beautiful etched silicon to do things fit for machines to do.  Such as making money.

While I’m sat here with furrowed brow, after the occasional meeting or terse Skype exchange, the work that ensues among members of our team is divided up into tranches of almost purely solitary endeavor. Probably close to half of that time is actually spent reading rather than writing code:  Reading nearby lines of code I or others have written, following short runs of imperative thought (if this, and this, then do that; otherwise, something else [unless this and this]…).  Reading online reference books for details of some arcane technique, or to suss out the side effects of some instruction.  The other half of the time is punctuated by a silent “aha…”, followed by a flurry of keystrokes which set down the next paragraphs in the program.  Another four or five keystrokes, to ask the machine to test your lines, and ask it “here – what do you think?”  We get a kick from those little “aha!” moments, which come in pairs:  The first aha comes when a concept, an algorithm becomes clear to your mind, and the second (often accompanied by a smile) when the computer responds to that algorithm the way you want.  Reading isn’t appreciated as being a core activity of writing code.

Then there’s the listening.  Hearing is the other sensory input that you engage at work – often to simply provide an ambient that allows you to jump between aha moments, but equally to keep in touch with things you’d otherwise miss when keeping ten-hour work days.  Listen to the first three stories on BBC World Service news with the first cup of coffee for the day.  Find the audiobook of Nassim Taleb’s Antifragile, let it run in the background while you review a test run.  Pull up Episode 109 of Markus Völter’s Software Engineering Radio podcast (eBay’s Architecture Principles) while you’re thinking about how to partition your database across your Taiwan and US-based servers.  Or get your code reading Zen together with Episode 148 (Software Archaeology) before beginning to translate a piece of Flash code to PHP.  A typical day’s listening – say, about 200 to 300 megabytes of audio taken off the Internet – gives you a window to the world’s news and knowledge, while your mind and hands work to create value.  And none of the insipid noise that passes for news and music from commercial broadcast radio in Mandaluyong City. Vhong Navarro: kailangan ba’ng i-memorize `yan?  Fuck that.

Or fuck me.  The Globe speed cap changes the course of my working day, as I have to make sure that I can continue to reach my company’s servers after I’ve taken in my reading and listening for the day.  Here’s how it works out:

Globe Telecoms offered the Tattoo Unli contract package sometime around 2011, affording practically unlimited, daily data access, at speeds of up to 2 megabits per second, at a cost of a thousand pesos a month.  Not too shabby.  You’d typically get anywhere between 80 to 180 kilobytes per second, from anywhere in Metro Manila.  Now this changed my web development game entirely: After seven years working in my domain, I could actually telecommute to work; I could log in to my company’s  server in Arizona, or in Taiwan, or Makati City, and send keystrokes to the remote (typically Linux or IIS) server as though I were there, at practically any time of day.  Skype became usable from anywhere in Metro Manila, where previously it wasn’t, despite a [pricey] Sierra Wireless data card only my NGO employer office could afford.  At my level of competence, I can be trusted to perform good work even away from the physical office, and this technology makes that possibility real.

The cap is simple to implement.  Once a subscriber’s total traffic – bytes from their laptop to the nearest tower, and bytes from the tower to their laptop – hits a preset limit, they then ramp down the speed to something like 8-12 kilobytes per second.  The effect is pretty jarring.  Roughly five hours into the working day, you hit the F5 button to reload the web page you’ve been working on, for the nth time that afternoon.  (Remember, that seriously metal laptop has already downloaded the day’s podcasts, and fetched updates to Firefox and other programs on it.)  You wait several seconds.  A helpful SMS message pops up on your screen, echoed from your modem:  “…Hello. Your data usage for today has reached 1GB…”   Thereafter a keystroke sent down the wire seems to take two to five seconds to appear on your console.  A simple Google search for, say

selenium webdriver andwait example

takes 40 seconds to load.  Skype chat barely works; and even attempting a Skype call is impossible. The employee has apparently dropped off the Net.

The employee then calls Globe Telecoms, and encounters a straight run of awkward, plain disinformation:

  • He is told that this data cap is mandated by the NTC.  Telcos asked NTC to include this in administrative memoranda back in 2011, and had NTC not rejected the proposal, this would have given Globe Telecoms and PLDT-Smart the means to impose caps. This would help them to expand their customer base, by enabling them to take on more customers at a reduced level of service.  It makes absolutely no sense that the National Telecommunications Commission would impose a restriction on commerce this way, and not have consumers fight back.   (A word of advice to you at Globe Telecoms:  Fire whoever they were who devised the call center agents’ script, effectively making these workers lie for you.)
  • He asks after options to avoid the speed cap, prompting the agent about their Platinum 3799 plans, and is told that all contract plans are subject to the same “fair usage policy” and, at one point, that the high end plans offering unlimited data are subject to a 1G cap as well.  He calls up the Platinum sales people hopefully, anyway, to ask after availability and terms of the Platinum 3799 contract, and is cheerfully told that “unlimited data” means just that, and some further gibberish about consumable credits toward data transfer, voice, and text. There is no way to know what price is reasonable to pay, to obtain a usable level of service.  You get a spiel about add-ons, consumables, a two-year contract with fines for early termination (which, in hindsight, elicits a “well, what the fuck was that for?”) by the customer.

globe-platinum“Unlimited” means what, exactly?

The employee, understanding that bandwidth needs to be distributed equitably, is still left with this single, powerful impression:  This telco needs many, many more customers (who will be using mainly low-bandwidth, interactive services such as Facebook, e-mail, and the occasional movie), and that you’re not part of our business plan. And fuck you.

So the first impulse you get is to keep chill, it isn’t personal, you just need to economize bandwidth use.  Fine – okay, so which podcasts go first?  I guess I could do with just Global News.  Maybe two or three of The Today Programme.  Oh – and stop sharing the link with housemates, certainly.  Okay, that’s doable.  Let’s see.  Schedule updates for after 5pm, when the bulk of the day’s work can be done offline.

You squeeze through, with some relief.  You’re able to push your code changes for a handful of features to the company server, and work on the remaining code that’s still on your screen, signing off Skype (which, at this point, is only usable for text messages anyway).  And you realize that by the end of the workday, the link is equally useless for Google search on “arduino.cc treo new projects” as it was for looking up “gmp_powm gmp_mult”.  Never mind Facebook.  Fuck this.  I really miss seeing my friends’ postings for about two minutes, and then let rise the irritation at this rate cap, this apparently completely artificial scarcity – of bandwidth.

Well, a pity, that.  Globe Telecoms seemed to be the only reasonable competition against the much larger PLDT-Smart-Sun (Sun, is it?) conglomerate.  Good pricing, good service.  The problem with this approach to expanding their customer base – that is, slitting the throats of customers who’ve been used to “promo” levels of service – is that a cursory search on the Web shows it is not government that’s mandating service level cuts.  They are a service provider who intend to provide “good enough” service if all you need from an Internet service is just your social media app, email, and a movie now and then.

They are prepared to use my government’s administrative edicts to grow their business.  Goddamn this, Globe Telecoms paint NTC as the originator of this data cap and expect me to just take that as fact.

They are not interested in finding out what you need, or providing what you need at a reasonable price – and have nothing to offer customers who do not rate a five-digit monthly contract price, beyond these cutesy, canned “plans” that revolve around selling gadgets instead of levels of service.  Rather than use their infrastructure to poll customers, they allowed certain of their customers to send spam messages offering ‘collateral free loan’ from some dinky lender with names that just reek  ‘extortionate interest rates here.’

The Globe speed / data volume caps, clearly intended to allow them to grow their customer base, are being described by their personnel as “mandated by government” – and are a bad idea on at least two counts:  First, the justification for the cap is a lie, specifically that they have no choice in the matter, and that it is State that mandates it.  This is only true because the industry – basically they, and their “competition” – have lobbied for this!  And it is a bad idea because it intends to get Filipinos used to a generally low level of Internet accessibility rather than force them to improve the quality of services they offer now and into the future.  Finally, it diminishes their credibility as an alternative to the well-entrenched PLDT.

I refuse to reward this kind of behavior.  I terminated my data contract with them yesterday – and life goes on.  Another telco next door offered a 4G dongle at what seems like a good price, the connection through which I’ve uploaded my final rant on this matter.  The rep spelled out the terms of access – yes, they do also restrict service speed once you reach a limit, but no, she was not aware that government mandated this.  Back to another coding day – and, goddamnit, I’m going to feel the lack of a night’s sleep for sure, for getting this irritation out of my system.