Cybercrime Prevention Act of 2012 Versus Magna Carta for Philippine Internet Freedom

Cybercrime Prevention Act of 2012 Versus Magna Carta for Philippine Internet Freedom

The first time I heard about the Cybercrime Prevention Act was when I was asked by my co-workers on my take about it. Having no time to watch the television more so to read the papers, I had no inkling of the said law so I asked a brief orientation of it, as understood by mycoworkers, being engineers without the interest of reading the entire law.

So they told me about the hot controversies… listening to one of them really convinced me that he was knowledgeable about the law, well, thanks for yahoonews. Then my initial reaction was, what’s wrong with the government restricting your online activities and write ups. Everything is being restricted by a lot of different laws.

Whats new? Every right and freedom that you got must always have boundaries. That’s what I call responsible living.

Arrogant as I am, I even felt that my co-workers didn’t really understand why there was a need to regulate blogging and other online services. Then I heard someone talking about porn movies and internet downloads.

Bingo!

So that was what it was all about! I thought that what they were actually concerned about was their being restricted to watch porn movies and to download files without permission. Remembering their noisy rants about saying goodbye to their favorite sites makes me grin like a joker.

A lot of them even changed their profile photos on facebook showing their support for  the amendment of the law. And I even told them that it was a good law then since they would have to be extra careful in entering porn sites.

The debate as argued between engineers and paralegal was actually very childish and subjective. I did not actively participate on it as I thought that the implementation of the law was as necessary as our modern system requires.

When I first read the Cybercrime Act, I did not find anything questionable in it. I even wondered why lots of issues arose in the media when the law was as ordinarily restrictive as any other law.   

 Then my professor gave the whole class an assignment on our own take in the said law. Oh my! Imagine going through all that technical nonsense again!! The idea makes me nauseous!

So here I am attempting to understand seriously the contents of the controversial Cybercrime Act.

What caught my attention first was the penalties as provided for under Section 8 of the Act. They are even higher than the penalties imposed in the E-Commerce Act which includes hacking. IT students may face imprisonment from 6 to 12 years for experimenting their cybercrime capacity.  

Imprisonment is one of the forms of rehabilitation. It involves conditions and treatment programs to change behavior generally.

One does not need such long periods to inculcate to a person the seriousness of the cybercrime he committed in order to reform him. Imagine a person being incarcerated for shouting “Magnanakaw Ka!” on twitter for a longer period than a person who inflicted slight physical injuries against another.

Another example of a stiffer penalty provided by the Act is the penalty for online libel. While the Revised Penal Code provides for the penalty of libel of not more than 4 years and two months in jail, the Act provides 1 degree higher for online libel. Honestly, I thought it was just fair, considering that the spread of an online defamation reaches around the world while a newspaper publication reaches those people within the locality.

But, wait a minute.

For someone like me who loves making rude remarks on my friends’ wall on facebook, am I already a candidate for cybercrime imprisonment award? And for someone who uses the facebook wall as her own personal diary, isn’t the law too harsh if she forgets to guard her tongue in one moment and be liable only because she loves sharing her thoughts to the world?

What do you think motivated our lawmakers to approve of a law as oppressive as the Cybercrime Act? Or if they were not motivated by any personal agenda, did they really understand what it contains?

Another thing about the Act is its provision on online libel which violates the rule against double jeopardy. Funny isn’t it? If you hated your ex-lover that much, then institute online liber case against him and make him pay twice for it. It would be just perfect!

But seriously, our Constitution shields us from a second prosecution for the same offense.  We cannot be tried again on the same or similar charges following a legitimate acquittal or conviction. And for sure, online libel is not an exception for this.

If a 19-year old teenager is convicted of such crime in a cybercrime court and was made to be confined in prison for 8 years, and another 9 years of imprisonment of the same crime by another court, the young teenager would have spent his fruitful years in prison. Do you think it is fair for him to be punished like that?

If this happens to me, I think I would commit another crime after the termination of my imprisonment so I could go back to jail for fear of adjusting to the way of life outside of prison walls. 

I think this is the time for the fault-finders to celebrate since they do not have to dig up material evidence to convict a person for cybercrime.

Section 4 (a) (3) of the same Act defines data interference as the intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document or data message, without right, including the introduction of viruses.

Let us say that a GSIS employee, in the performance of his duty, without malice or intention, introduced viruses on its central database system, resulting to the deletion of pertinent data of the entire system, will that person be liable of violation of the same section of the Act?

Looking at the elements of data interference as one of the cybercrime offenses makes you think that the person in the above example is guilty of cybercrime. Although he was performing his official duty, the fact that he introduced viruses on the database system, regardless whether or not there was malice on his part or through his reckless act, he is liable. Or you may argue that he is not, since he had the right being an authorized employee having an access on the government computer system.

This is actually confusing. When the law states “without right”, does it refer to having authority on the access of the system or on the introduction of viruses? Although this sounds ridiculous, but, maybe, there is such a thing as the right to introduce viruses for the purpose of crashing the system for public security.

I asked my co-worker who manages the entire network in the office if it is possible for an IT personnel to purposely infect a computer system with viruses as instructed by his superior.  And he answered no. If the purpose is to destroy the database then deletion or other similar method should be applied except infection of virus. This is because introduction of virus to a system is an act of violation of their professional ethics.

I was really glad to hear this. But still, the law should have been cleared about this.   

Asking around my friends to see their primary concern on the Act was very helpful. I realized that most of them were doubtful about the government’s ability to investigate cybercrimes in order to determine the real perpetrators. I agree with them.

Take for an example an unauthorized use of your account in a computer café.  After logging in and out of your yahoomail, another user was able to access into your account and used it to commit any of the crimes against the Act, then a complaint was filed against you, and your only defense was that you had no knowledge of such act, do you think that the person who committed it could be identified?

 If there is anything good that we could get from this law, it is to make us extra careful in allowing others to use our computer or other electronic device.

We could start being cautious with our comments when we are posting them online. We could stop installing unlicensed applications and downloading pornographic movies. Yes, this is really good.

But is it really good?

 The Act in its entirety lacks limitations. The definitions of offenses are stated but in general terms and without borders. The powers granted to the authorities are broad that they could be abused.

On the Restricting or Blocking Access to Computer Data provided under section 17 of the Act requires only a prima facie finding of a violation of the provisions of the Act for the DOJ to issue an order to block or restrict access to the computer data.

For a law that punishes crimes twice as high as under the Revised Penal Code and only requiring a prima facie evidence is against public policy and welfare. It is arbitrary and oppressive. It should not be considered as a valid law.

It is like having martial law implemented in online transactions.

If you make a mistake of installing an unlicensed application, or make libelous statement against someone, or trade with Amazon, or engage in online gambling and your enemy catches you doing any of these things, the DOJ may authorize the internet service providers to block such contents if it sees a prima facie violation of any provision of the Act.

For me the hardest part is, not being able to download my favorite Japanese animes and mangas!! Those characters I have been following through for like 15 years will be gone forever. Goodbye Naruto.

But the biggest issue that arises in the implementation of this Act is the government’s attempt to restrain our freedom of expression. Our Constitution assures us of our right to express ourselves. It is the most basic freedom being protected by the State in recognition of our being part of it. Such freedom shall not be suppressed unless such speech will bring about a clear and present danger of evil.

Where is this constitutional guaranty when the DOJ could immediately block the speech if found to be offensive or libelous without trial and hearing? If the government itself prevents us from enjoying our rights, where shall we go for protection?

Then a heroine comes along in the person of Senator Mirriam Defensor-Santiago. I am not saying that I see her with idolizing eyes, but for the purpose of defeating the unconstitutional provisions of the Act, I now salute her with gratitude.

An anti-cybercrime law version 2.0 bill has been filed by Senator Santiago re to replace the controversial Cybercrime Prevention Act.

What is so genius about this bill is the fact that it decriminalizes libel as opposed to the provision under the Cybercrime Prevention Act.It safeguards the rights and freedoms guaranteed by our Constitution.

The said bill treats libel as a civil liability rather THAN A CRIINAL ACT. So one will only be liable to the damage or injury that he has caused to the injured party by his derogatory statement. One does not have to worry of being imprisoned by calling her husband’s mistress “KERIDA” out of fury and post it on any social network’s wall.

Our freedom of expression, privacy and due process and right against illegal searches and seizures are recognized and protected in this bill. It also provides proceedings for taking down websites or networks and prohibits censorship of contents without court order.

The bill is like a work of a genius. Every contentious provisions of the Anti-Cybercrime Law is corrected here.

It also attempts to eliminate the provision relating to double jeopardy and proposes to create another organization for the enforcement of laws governing Information and Communications Technology.

Although I am not sure if creating another office called the Department of Information and Communications Technology is a good idea since it will require a big amount of government fund and besides, there is already the National Privacy Commission created under RA 10173 otherwise known as the Data Privacy Act of 2012 and other government agencies which may work together for the successful implementation of anti-cybercrime law.

Issues on vagueness and generality of the Anti Cybercrime Law have only been resolved here. The bill tries to limit and specifically define cybercrime offenses.

It also covers provisions to ensure the country’s protection against cyber attack by terrorists and other enemy of the states.

Child pornography, child abuse, human trafficking, hacking, piracy and copyright infringement are still considered as criminal acts.

Strict guidelines for securing of warrants, notifications and seizures of date are likewise provided in the bill.

I am so glad lots of people reacted negatively after the approval of the Anti-Cybercrime Act. Otherwise, countless people will suffer the consequence.