Thursday, December 27, 2012

RA 10175 and the Magna Carta for Philippine Internet Freedom



An Act Defining Cybercrime, Providing for the Prevention , Investigation, Suppression and Imposition of Penalties Therefore And For Other Purposes [ Republic Act 10175]; as against
An Act Establishing a Magna Carta for Philippines Internet Freedom, Cybercrime Prevention & Law Enforcement, Cyberdefenses & National Cybersecurity [SBN 3327]

First, it must be clarified that, before I continue on with my blog, I am inclined  to dwell on neither side. My view is from a standpoint where people see it in black and white, unclouded by personal desires. Just plain and simple knowledge of the use of the internet.

I have read a running commentary on the Anti-Cybercrime Law, and they are not pointless to be ignored. Some articulate of their fight for their online rights before they may even be peddled, regulated, and scheduled away.  It must be understood that the exercise of power in our physical world is rather a dangerous act as it entails more of what we can do rather than what we cannot do.
I have always believed that freedom comes with great responsibility. We are to be held accountable for what we say in print as well as online without really being suppressed of our so-called freedom. The barrier clouding our mentality to ever psych out the need to demarcate liberty from self-rule has to be deleted. In other countries such as China, “self-discipline” on the use of the internet is being rewarded, although it blocks content very directly, so does Iran; Russia does not directly block websites, as they simply introduce order to place the weight on the internet site themselves. However, not all regulations are applicable to all kinds of people. Those of what Russia, China and Iran implement may not be useful to our kind of people. But the common denominator of the aforementioned countries and the Philippines is that citizens ó government. It takes two to tango. We must admit, we tend to abuse the little power that we are granted, therefore, a little help from our government to tame us a bit will not hurt. I love freedom much as anyone else here on earth! So I must not be misquoted for saying that we need “a little help from the government.”

The internet, for all its good purpose, should help the good guys rather than the bad guys. But, for some reason or another, the bad guys tend to monopolize such good use and convert it to their glory, the ratiocination for the effectuation of the now questionable RA 10175 and its maybe replacement SBN 3327. It is somehow forgotten that the legitimate purpose of technology is to better our continuance here on earth and not to maneuver or enthrall us human beings. The government and technology work for the people and not the other way around.

 It can be regarded that we are such in a sullen state because we cannot school ourselves that we need to be reproved by some law or laws. Discipline emanates from the person within and not from the castigation our government saddle upon our people.

What motivate people to do things? Perhaps, the urge to let their feelings flow through; the moment of emptiness that they so want to be filled with just anything. There is nothing wrong about going through any of these, in fact, these blogs, twitter or any social media effects, are one of the great geniuses of our time – where people come together, comment about anything; there is expansion of brilliant ideas; there is collective intelligence so to speak. The best part of all these is, it is for free! The positive side of blogging is that we have the citizen journalism where there is no need for formal training to be one. However, again, if there is positive side, there is always the dark side. Some say, it is very easy to fall in love with the internet. Really? When I heard this, I could hardly fathom if there is indeed any depth into that statement. Another is, the paradox of collective intelligence. The more ties we construct, the thornier it gets, the harder it is to be individualistic. Oh yeah!

President Noynoy Aquino III signed the Anti Cybercrime Law or RA 10175 on the 12th of September 2012, however, the Supreme Court discharged a Temporary Restraining Order for 120 days from the 9th of October to grant our Congress an opportunity to come about a substitute step.
RA 10175 sought to scourge cybercrime offenses such as spamming, identity theft, online pornography, hacking, online libel and other similar offenses committed through the use of the internet. This law has been reviewed, ridiculed and was given a chance but its objectives were not cogent enough in terms of freedom of expression, and of speech. People who are adept to the ins and outs of the internet enunciate their mettlesome sentiment about the provisions of this law.
In this law, the Department of Justice and not the court who investigates and castigates bad elements; collection of traffic data without   warrant or court order is another flaw of this law. The other problem that this law presents is the Take down clause which is not well defined as there is a take down of computer data alone and taking down of a blog is another thing. The Department of Justice must secure a court order before the take down takes effect unless there is a clear and present danger that there could be no more waiting another second. The legal field employs the terminology “clear and present danger” as a standard to allow for the constitutional right of freedom of speech and expression be curbed. Tsk! Tsk!
This law that avow to protect us Filipinos against those who do us injustice though the internet is also threatening to march away our constitutional rights of freedom of speech and of expression. Tsk! Tsk!

On the Libel clause, it imposes a higher penalty which amended the Revised Penal Code because of the harmful nature of the internet if on the hands of a debauched internet user. One statement that is considered libelous and is posted, it becomes obtainable forthwith to everyone without obstruction and charge. A complainant who is libeled need be advanced as the new agency will not be capable of monitoring all the tweets, blogs or shout-outs in all networking sites. The good thing about this law, as they claim, is that when the person who commits cybercrime is outside the Philippines, he can still be held answerable since the person libeled may still file a case against its oppressor – and can still be arrested so long as there is a warrant against that person.  As skeptical as I am, I wonder if this will be implemented as smoothly as it portrays to be easy.

 Why it is a summon to all internet users to overrun too much use of the net in order to project selfish desires. Amen to that!

Here comes the SBN 3327.     
One of the lady senators filed a bill crafting a Magna Carta for Philippine Internet Freedom that would take a crack supplanting the recently enacted but very controversial RA10175. It was argued that RA 10175 was unconstitutional because of its over breadth and vagueness to the effect of making some internet undertaking punishable. The bill filed seems to be more extensive providing not just disallowed acts and stern chastisement but more importantly, it assures the rights and protection of our netizens. This bill promises castigating internet libel and hate speech while it engenders freedom of speech and expression on the internet. On this proposal, the lady senator vouches for citizen’s rights against illegal search and seizure through letting the warrantless real-time collection of traffic data. It also warrants due process by catering meticulous guidelines for any data collection including the securing of warrants, obligating notification and limiting seizure to data while excluding the physical property. This bill likewise commands government agencies to procure security for the data they collect from netizens to ensure their rights to privacy. Also, there is no provision for ”take down clause” (which has raised a lot of questions in RA10175), instead, it provides for court proceedings in cases where websites or networks are to be taken down. There is also a provision wherein it prohibits censorship of content without first securing a court order. Said bill bars double jeopardy. On the Cybercrime law, it does not provide blockade for double jeopardy through prosecution of offenses committed against its provisions as well as those against the Revised Penal Code, Special Laws, considering the offenses are from a single act.
This bill grooms the propounded Department of Information and Communications Technology, law enforcement agencies, as well as the military with provisions for taking care of cybercrimes. It ensures that the country has suitable defenses against cyber-attacks by terrorists, violent non-state actors and rogue or enemy nations. The Philippine National Police and the National Bureau of Investigation are likewise directed to antagonize cyber-terrorism. There is a spadework for exploiting ICT for national development by assuring that government agencies hold fast with realities and advances in information technology like the copyright and consumer welfare laws.

SBN 3327 not only aspires to pitch into the protection of but also the institution of the rights of the internet users in our country. It is worthwhile noting that this bill claims to be escorted by the proficient, qualified knowledge in the IT and legal expertise. This bill is the first to be created through “crowdsourcing.” It says that in its drafting, a group of IT Specialist, software designers, bloggers, academics, engineers, human rights advocates, and lawyers were involved. They also claim that such draft was formulated through discussions in an open facebook group, email, google hangout teleconferences and twitter. It somehow pacifies the fear growing inside of me that my utilization of the internet will not land me into detention or be inflicted of hefty fines for simply letting out my sentiments unto the government, some public officials or some circumstances that are likely to happen to vocal people like me. Its quest is to implant a sensible, fact -oriented and stable environment that defends Philippine nationals against cybercrimes and cyber-attacks. It pursues to benefit netizens as they meet threats and challenges of piloting cyberspace.

For journalists, this could be favorable because it does away with imprisonment for libel through the internet as there only arise civil liability. Moreover, malice is not a presumption in internet libel  in comparison with that punishable under the Revised Penal Code wherein such is presumed with every defamatory  imputation if no good intention and justifiable motive is shown. As may have been raised by critical thinkers – a reporter being sued under both the Revised Penal Code and the Magna Carta if his article  in print is also posted on the net and end up with two separate crimes. But it seems that SBN 3327 has foreseen this possibility of indicting a blogger with two charges in a single act. One of the lawyers behind Magna Carta said, that no journalist who has disputatious article published online and on a print is at risk of separate indictment.

On account of libel, it treats such only as a civil liability rather than a criminal act, as can be gleaned from my view, this is a step forward in the instigation to de-criminalize libel. However, it is not congruent with the libel punishable under the Revised Penal Code. This will become subject to questions later on as what should have been done first is to harmonize the two laws.

This bill, as the proponent sees fit, is anchored on rights, governance, development, and security upon which, qualms will arise, for sure!

Despite all the fears any netizen is facing with the enactment of the RA 10175 and the possible enactment of the Magna Carta, Philippine cyberspace is still unregulated and the need for one is calling louder. Yes, there are more priorities that our lawmakers should attend to, but this may become one of them if not given publicity right now. 

In a country with more than  thirty million internet users, how can cybercrime law be enforced in the Philippines? The enacted law and the proposed law are good push to resist cybercrimes, but, there is an exigency to take up any ambiguity or omission in a text through which its intent may be evaded. There are internet crimes which are vaguely covered or not at all, and this dilemma, for all we know, will not only create bigger problems that an amendment or repeal or imposition of another law may be needed, AGAIN!

Bloggers are beholden to what they say, comment, post, publish or whatever a social media user does. Yes, these SMU are not journalists as they are not trained as one, but when they nab the poncho of publicizing, they should be regarded and be burdened of the duty and responsibility of a journalist. They cannot excuse themselves simply because they are not licensed journalist thus leaving them unaccountable for the mess they created. Bloggers who are not in favor of being regulated by any outside law aside from their clout to their own morality, ascertain that even absent of any defining rules, a devious blogger may still be castigated by the community of bloggers through their comments online. But of course, there is no certainty as to the reprimand that an errant blogger is to be subject to if without any clear law that all social media users should abide. I see no reason to be uncomfortable about bloggers being regulated.  

As what the government claims, the information and communications technology and the internet are drivers of economic growth, thus the country is all the more in need of a really adequate, competent and efficacious cyberlaw that will put to reality such a claim.  Safeguarding our nation against cyber-attacks has become one of the nation’s topmost priority. To effectuate this objective,  trained operations team must  ardently protect against internal and external threats. And for those consummated attacks on our cyberspace, our defense must be adequate of kicking off follow-on attacks on internal networkers. Knowledge of actual attacks that have conciliated systems engenders the cardinal armature on which to erect sufficient defenses because our government agencies tasked to supervise such condition are not unlimited in budget, and the only sensible way to conform with these requisites is to entrench a baseline of information security device and controls that may be monitored without ceasing through automated mechanisms. It shall be understood that cyber attacks milk on the vulnerable areas in a project or program to procure entrée to other enterprise facility. The government agencies will surely continue to explore interconnectivity across agencies to improve its support upon its netizens and own operations. Defenses should center on addressing the most prevalent damaging attacks transpiring nowadays as well as those that likely to occur in the future. The government agencies assigned with this job must warrant congruous controls to effectively negative any attack. In short, a multiplicity of explicit technical activities must be assumed to bring forth a more consistent defense.

Another inconsistency I have encountered is on the government’s assumption of internet security when and well in fact, it cannot even secure its websites. Cyberspace has become the soapbox of the best and the unpleasant whatever that any person can think of. It should have a been a place at an opportune time to exchange ideas and artistic expressions if not for the cyberbullies that make it such an unhealthy environment to even bother visit.

I must admit that although I support a competent, efficient and unbiased cybercrime law, I am scared of what is laid before us after any of the two (RA 10175 and the Magna Carta) is in implementation. Until they are tested, I will not breathe in relief yet, if, after I have published and told the truth online, I won’t be damned. Most of the social media users are the young people and I bet they are not cognizant about the cybercrime laws so much so about its implications. These juveniles could be charged of libel even before they would even know its meaning.

As I have earlier stated, I do not promote the law and the bill. Until it is on testing ground, and has not in any way infringed my bill of rights granted by the constitution, then I will take side and succumb to whichever has preserved my freedom of speech and expression through the internet.

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