Republic Act 10175 – Cybercrime Prevention Act was signed into law last September 12, 2012. It is currently on hold as the Supreme Court issued a temporary restraining order (TRO) for 120 days. Oral arguments scheduled this January 15, 2013.
It is a law considered to be 11 years in the making as various groups, organizations, and personalities lobbied for its passage. It took awhile for the law to be passed as legislators and various stakeholders need to understand the magnitude of cybercrime and whether the penalty provisions indicated in the E-Commerce Law – Republic Act 8792 is sufficient or not.
At a PTV4 Forum on Anti-Cybercrime Law (video at end of this post), Department of Justice Assistant Secretary Geronimo Sy explained that laws on cybercrime are considered as the 3rd building block of legislations necessary to protect the people from crimes committed in cyberspace and use of ICT. I always look at cybercrime as something under the 2nd block or special penal laws (where I think the E-Commerce Law is in). Although it seems there is now a set of laws in place that are already in that 3rd block and increasing further (which may already include the E-Commerce Law as it is the first policy in place against hacking and online piracy). As we use and integrate ICT and Internet in our lives, perhaps it is possible that new forms of crimes can happen online and where broader or special legislation will have to be created (that provides mandate for resource allotment too). Nevertheless, that perspective, whether agreeable or not, brings the importance of having more organized groups of netizens who can interact with policy makers proactively on Internet / ICT related policies and do its share of stakeholder consultation.
From my review and understanding, the law:
1. Penalizes (section 8) seventeen types of cybercrime (Section 4). They are:
|Types of Cybercrime||Penalty|
|1. Illegal access
Unauthorized access (without right) to a computer system or application.
|Prision mayor (imprisonment of six years and 1 day up to 12 years) or a fine of at least Two hundred thousand pesos (P200,000) up to a maximum amount commensurate to the damage incurred or BOTH. ————————If committed against critical infrastructure:Reclusion temporal (imprisonment for twelve years and one day up to twenty years)ora fine of at least Five hundred thousand pesos (P500,000) up to a maximum amount commensurate to the damage incurredor BOTH|
|2. Illegal interception
Unauthorized interception of any non-public transmission of computer data to, from, or within a computer system.
|- same as above|
|3. Data Interference
Unauthorized alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, and including the introduction or transmission of viruses.Authorized action can also be covered by this provision if the action of the person went beyond agreed scope resulting to damages stated in this provision.
|- same as above|
|4. System Interference
Unauthorized hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data messages, and including the introduction or transmission of viruses.Authorized action can also be covered by this provision if the action of the person went beyond agreed scope resulting to damages stated in this provision.
|- same as above|
|5. Misuse of devices
The unauthorized use, possession, production, sale, procurement, importation, distribution, or otherwise making available, of devices, computer program designed or adapted for the purpose of committing any of the offenses stated in Republic Act 10175.Unauthorized use of computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under Republic Act 10175.
|- same as above except fine should be no more than Five hundred thousand pesos (P500,000).|
Acquisition of domain name over the Internet in bad faith to profit, mislead, destroy reputation, and deprive others from the registering the same. This includes those existing trademark at the time of registration; names of persons other than the registrant; and acquired with intellectual property interests in it.Those who get domain names of prominent brands and individuals which in turn is used to damage their reputation – can be sued under this provision.Note that freedom of expression and infringement on trademarks or names of person are usually treated separately. A party can exercise freedom of expression without necessarily violating the trademarks of a brand or names of persons.
|- same as above|
|7. Computer-related Forgery
Unauthorized input, alteration, or deletion of computer data resulting to inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; orThe act of knowingly using computer data which is the product of computer-related forgery as defined here, for the purpose of perpetuating a fraudulent or dishonest design.
|Prision mayor (imprisonment of six years and 1 day up to 12 years) or a fine of at least Two hundred thousand pesos (P200,000) up to a maximum amount commensurate to the damage incurred or BOTH.|
|8. Computer-related Fraud
Unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent.
|- same as aboveProvided, That if no damage has yet been caused, the penalty imposed shall be one (1) degree lower.|
|9. Computer-related Identity Theft
Unauthorized acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical.
|- same as above|
Willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.There is a discussion on this matter if it involves “couples” or “people in relationship” who engage in cybersex. For as long it is not done for favor or consideration, I don’t think it will be covered. However, if one party (in a couple or relationship) sues claiming to be forced to do cybersex, then it can be covered.
|Prision mayor (imprisonment of six years and 1 day up to 12 years) or a fine of at least Two hundred thousand pesos (P200,000) but not exceeding One million pesos (P1,000,000) or BOTH.|
|11. Child Pornography
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.
|Penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act 9775, if committed through a computer system.|
|12. Unsolicited Commercial Communications (SPAMMING)
The transmission of commercial communication with the use of computer system which seek to advertise sell, or offer for sale products and services are prohibited unless:
(a) There is prior affirmative consent from the recipient; or(b) The primary intent of the communication is for service and / or administrative announcements from the sender to its existing users, subscribers or customers; or(c) The following conditions are present:(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial 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 communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.
|Imprisonment of arresto mayor (1 month and one day to 6 months)
or a fine of at least Fifty thousand pesos (P50,000) but not exceeding Two hundred fifty thousand pesos (P250,000) or both.
Unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended committed through a computer system or any other similar means which may be devised in the future.Revised Penal Code Art. 355 states Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.The Cybercrime Prevention Act strengthened libel in terms of penalty provisions.The electronic counterpart of libel has been recognized since the year 2000 when the E-Commerce Law was passed. The E-Commerce Law empowered all existing laws to recognize its electronic counterpart whether commercial or not in nature.
|Penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.|
|14. 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.||Imprisonment of one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (P100,000) but not exceeding Five hundred thousand pesos (P500,000) or both.|
|15. Attempt in the commission of cybercrime Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.||- same as above|
|16. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act.||Penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.|
|Although not exactly a cybercrime, I am including this here as penalties are also imposed by the law.
17. Corporate Liability. (Section 9)
When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person, by a natural person acting either individually or as part of an organ of the juridical person, who has a leading position within, based on:(a) a power of representation of the juridical person provided the act committed falls within the scope of such authority;(b) an authority to take decisions on behalf of the juridical person. Provided, That the act committed falls within the scope of such authority; or(c) an authority to exercise control within the juridical person,It also includes commission of any of the punishable acts made possible due to the lack of supervision or control.
|For sanctioned actions, Juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Ten million pesos (P10,000,000).For neglect such as misuse of computer resources that resulted to cybercrime committed in organization physical or virtual premises or resources, juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Five million pesos (P5,000,000).Criminal liability may still apply to the natural person.|
If you are going to include all provisions in the Revised Penal Code, there can even be more than 17 types of cybercrime as a result.
2. Liability on other laws
Section 7 has been subject to interpretation such as double-jeopardy. Let’s take the case of cybersex. For example, there is a cybersex den that forced a person to do an act equivalent to “rape” and later on shown online. Rape is an offense covered under Article 335 of the Revised Penal Code. The party therefore can be sued for the crime of Cybersex under this law, Rape under Revised Penal Code, and Crimes Against Women law. Is that considered double-jeopardy? I don’t think so.
The insertion of Libel in this law is the one that is causing a lot of confusion as it is interpreted as a crime under this act and may be seen as separate under the Revised Penal Code therefore giving room to double-jeopardy. From what I gathered lately, electronic libel is the only case to be filed. The only time the case of traditional libel will be filed under the Revised Penal Code concurrently is if the act of libel also gets committed in traditional form simultaneously. Although they are both separate offenses, it can also be seen as double jeopardy as traditional libel is supposed to have recognized electronic forms with existing penalties applying to it..
(a) The Regional Trial Court designated special cybercrime courts shall have jurisdiction over any violation of the provisions of this Act including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situation in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines. (section 21)
(b) For international and trans-national cybercrime investigation and prosecution, all relevant international instruments on international cooperation in criminal maters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest extent possible for the purposes of investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal offense shall be given full force and effect. (section 21)
This gives the Philippines the ability to participate in treaties and of mutual cooperation with countries that have counterpart legislation effectively – especially – on cybercrime cases that have team members or victims residing in the Philippines.
4. Responsibilities of the Philippine National Police (PNP) and National Bureau of Investigation (NBI)
The law gave police authorities the mandate it needs to initiate investigation to process the various complaints / report it gets from citizens. There are instances of online attacks, done anonymously, where victims approach police authorities for help. They often find themselves lost in getting investigation assistance as police authorities can’t effectively initiate an investigation (only do special request) – as their legal authority to request for logs or data does not exist at all unless a case is already filed. (which in case of anonymously done – will be hard to initiate)
I truly believe in giving citizen victims, regardless of stature, the necessary investigation assistance they deserve. This law – gave our police authorities just that.
The PNP and NBI shall be responsible for the enforcement of this law. This includes:
(a) The PNP and NBI are mandated to organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act. (Section 10).
(b) The PNP and NBI are required to submit timely and regular reports including pre-operation, post operation, and investigation results and such other documents as may be required to the Department of Justice for review and monitoring. (Section 11)
(b) 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. (Section 12)
(i) 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.
(ii) All other data to be collected or seized or disclosed will require a court warrant. The court warrant 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 herein above has been committed, or is being committed, 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 or, or to the prevention of any such crimes, and (3) that there are no other means readily available for obtaining such evidence.
(c) May order a one-time extension of another six (6) months on computer data requested for preservation. Provided, That once computer data preserved, transmitted or stored by service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. (Section 13)
(d) Carry out search and seizure warrants on computer data. (section 15) Once done, turn-over custody in a sealed manner to courts within 48 hours (section 16) unless extension for no more than 30 days was given by the courts (section 15).
(e) Upon expiration of time required to preserve data, police authorities shall immediately and completely destroy the computer data subject of a preservation and examination. (section 17)
5. Responsibility of service providers (SP)
Service provider refers any public or private entity that provides to users of its service the ability to communicate by means of a computer system, and processes or stores computer data on behalf of such communication service or users of such service. (Section 3(n).
(a) SPs are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. (section 12)
(b) SP upon receipt of a court warrant from police authorities to disclose or submit subscriber’s information, traffic data or relevant data in its possession or control shall comply within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation. (section 14)
(b) The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum of six (6) months period from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.(Section 13)
(c) Once computer data preserved, transmitted or stored by service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. (Section 13)
(d) Upon expiration of time required to preserve data, SP shall immediately and completely destroy the computer data subject of a preservation and examination. (section 17)
(e) Failure to comply with the provisions of Chapter IV specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correccional in its maximum period or a fine of One hundred thousand pesos (P100,000) or both for each and every non-compliance with an order issued by law enforcement authorities.
I think service providers participation in the implementing rules and regulation creation will be important. They need to agree with the process on how data will be requested and the response time needed for law enforcement to take action – especially when performing a surveillance crackdown where real-time traffic data (communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities) is important.
This is especially true for scammers targeting victims through mobile phones all happening in a span of hours only or attacks online. Law enforcement needs to act fast on that and service providers should be proactive in resolving it rather than just be contented in issuing warnings – reminding consumers to spot and ignore scams, asking people to file request or complaint to block numbers at NTC, and how to protect personal online account.
In all other details beyond traffic logs, a court order is already required. (Section 12 of Cybercrime Prevention Act of 2012)
I think at the end of the day, it is either the Service Provider offers a cooperative win-win solution so that law enforcement can be effective in dealing with cybercrime or be told to give its full cooperation.
Service Provider protection insofar as liability is concern is already covered under the E-Commerce Law.
6. Responsibility of individuals
(a) Individuals upon receipt of a court warrant being required to disclose or submit subscriber’s information, traffic data or relevant data in his possession or control shall comply within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.
(b) Failure to comply with the provisions of Chapter IV specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correccional in its maximum period or a fine of One hundred thousand pesos (P100,000) or both for each and every non-compliance with an order issued by law enforcement authorities.
7. Inadmissible evidence
(a) Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal. (section 18)
8. Access limitation
(b) When a computer data is prima facie found to be in violation of the provisions of the Cybercrime Prevention Act, the DOJ shall issue an order to restrict or block access to such computer data. (section 19)
Note that prima facie is a higher form of evidence as it meets “burden of proof” requirement at the first sight. This can include a sex scandal being shown online where violation against our pornography laws are clear.
Prima facie is different from “probable cause” as this refers to suspicion requiring further investigation.
9. Cybercrime new authorities
(a) Office of Cybercrime within the DOJ designated as the central authority in all matters relating to international mutual assistance and extradition. (section 23)
(b) Cybercrime Investigation and Coordinating Center (CICC) an inter-agency body to be created under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan. (section 24)
CICC will be headed by the Executive Director of the Information and Communications Technology Office under the Department of Science and Technology as Chairperson with the Director of the NBI as Vice Chairperson; the Chief of the PNP, Head of the DOJ Office of Cybercrime; and one (1) representative from the private sector and academe, as members. (section 25)
The CICC is the cybercrime czar tasked to ensure this law is effectively implemented. (section 26)
Although the law specifically stated a fifty million pesos (P50,000,000) annual budget, the determination as where it would go or allotted to, I assume shall be to the CICC.
DEBATE / DISPUTE on the Cybercrime Prevention Act.
In my discussion with lawyers, journalist, bloggers, among others, concerns were raised on how the law can be in violation of the Constitution and other laws. This includes:
1. Discrimination against online crime.
In crimes committed online, the law gives higher penalty compared to its offline counterpart. This is seen as violation of principles within the E-Commerce Law where both offline and online evidence is given equal weight. In its implementing rules and regulations, it also indicated not to give special benefit or penalty to electronic transactions just because it is committed online.
2. Did the Cybercrime Law criminalized online libel? Will it result to double jeopardy?
Some see the Cybercrime Law as enabling criminalization of online libel. I think that is not correct.
Libel being a criminal offense was defined under the Revised Penal Code.
The E-Commerce Law empowered all existing laws to recognize its electronic counterpart. It recognized both commercial and non-commercial in form. This made electronic documents (text message, email, web pages, blog post, etc) admissible as evidence in court (and can’t be denied legal admissibility just because it is electronic form and have the same primary evidence weight). Existing penalties under the laws where offense fall in shall apply. That is why filing of libel cases committed electronically became possible in the past years (and there were cases filed, some won, some lost, and some are ongoing).
Libel is already a criminal offense under the Revised Penal Code as is. Then it got extended to its electronic form since 2000 (with the recognition of its electronic form provided by the E-Commerce Law) with existing penalties applying to it. With the Cybercrime Law, it increased the penalty further if committed with the use of ICT.
According to Atty. Geronimo Sy (Department of Justice), during the PTV4 Forum on Anti-Cybercrime Law, a complaint on electronic libel will only have one (1) case to be filed. The maximum penalty for electronic libel is 8 years.
Hitting the “Like” button on Facebook does not make you commit the act of libel. In this ANC interview, Senator Ed Angara clarified that posting a comment where you get to share your thoughts is covered under “protected expression”.
The amount of penalty is still to be set by the DOJ as there is usually no automatic degree scaling in special penal laws. If a person who got accused of committing electronic libel also did the same in traditional (offline) form, then the case of libel under the Revised Penal Code will also be filed.
The mention of libel in the Cybercrime Law is the most contested provision in the law. The additional penalties is seen to curtail freedom of expression. Most of the petitions against the Cybercrime Law focused on this provision and awaiting Supreme Court decision.
Numerous legislators are already expressing interest as well in amending the Cybercrime Law and Revised Penal Code.
3. Real time data access
I appreciate the need for real-time access to data, such as cellular traffic data, especially in tracking scammers and any critical incident as it happens (such as kidnapping and other in-progress crimes) where immediate access is important.
However, the mining of this data for surveillance can be seen as subject abuse. Furthermore, if no intervention such as a judge approval, comes first before getting access where need can be justified.
Although I think this will slow down the process if anything needs court approval first. But other parties believe that this is a must requirement. I hope the Supreme Court or Department of Justice will be able to clarify this one.
4. Blocking of sites
The Department of Justice is empowered by the law to block access to computer data if they are seen as prima facie evidence that violates this law.
For anonymously set-up attack sites, I think this power is important and useful especially when the identity of attacker is not known and there is no one to sue. When the contents of an anonymous attack sites gravely violates existing laws such as Revised Penal Code provisions on treason, sedition, national security, violation of individuals with special health conditions data privacy (such as those with HIV / AIDS), among others.
For libel cases, it will require a complainant to file a case and check if there is prima facie evidence that would merit blocking of the site. Personally, in cases like libel, I think this is only valid for anonymously set-up attack sites where the victim has no clear attacker to sue.
Other parties sees this as dangerous as DOJ will have jurisdiction over what content is valid online without going through proper court dispute process and give time for parties to respond.
Filing a petition to review at the Supreme Court
To resolve the confusion, I supported the bid to file a petition at the Supreme Court seeking to nullify sections 4 (c)(4), 6, 7, 12, 19 of Cybercrime Prevention Act of 2012. If nullified, it will be fair to everyone concerned. If the law is upheld as is, it shall end all arguments and we can just focus on the implementation.
Come January 15, 2013, the deliberation between the Office of the Solicitor General (OSG) and petitioners shall commence. Here is the response given by the OSG:
If the Cybercrime Law gets upheld by the Supreme Court, here are my personal notes on the development of its implementing rules and regulations:
1. Ensure that procedures for police assistance and securing court orders will be fair regardless whether complainants can afford a lawyer or not to assist them.
2. Make the process for real time data access efficient so that text and online scams culprits can be made accountable soon while ensuring that the data collected won’t be abused.
3. DOJ powers on blocking computer data will be used fairly on situations where it warrants it. Clear process can be set up for individuals or groups seeking for it.
There have been lobbying moves to strike down the whole Cybercrime Prevention Act (Republic Act 10175). I hope it will not come to that as the law had greater purposes and intentions that can be helpful in protecting the interest of our netizens and country online.
Will update this document further (to be continued)