Cyber ‘Big Brother’

By Atty. Joe Nathan P. Tenefrancia / On firm ground

IT is undeniable that the Internet has become an indispensable part of our daily life. Similar to the “cell-phone wave” which hit our society some 15 to 20 years back, the use of the Internet continues to spread among the populace like wildfire, especially among the younger ones, and is practically here to stay. It’s amusing how people, when going to places, look for “hot spots” as if they have not logged on the Internet for days. When searching for restaurants, movie schedules, or any type of information, the Internet would always be the primary source.

Thus, it was almost expected that when Republic Act (RA) 10175, otherwise known as the Cybercrime Prevention Act of 2012 was approved on September 12, 2012, public clamor and scorn immediately ensued. What subsequently followed was the filing of no less than 15 petitions with the Supreme Court assailing the constitutionality of RA 10175 and enjoining its implementation. Notably, one of the petitions filed was that of the Philippine Bar Association, the oldest voluntary organization of lawyers in the country, which traces its roots to the Colegio de Abogados de Filipinas organized on April 8, 1891.

Judging from the negative reaction of the public on RA 10175, as well as the plethora of petitions filed against it, the most controversial and contested provision of the law is the provision on “cyber libel.” Emphatically, Section 12 of RA 10175 is, likewise, a potentially “lethal” provision, if not more. Section 12 provides that law-enforcement agencies, with due cause, shall be authorized to collect or record by technical or electronic means “traffic data” in real time. Traffic data is defined as data that pertains to a communication’s origin, destination, route, time, date, size, duration or type of underlying service, but not content, or identities. Section 12, likewise, provides that all other data to be collected or seized, such as content data, shall require a court warrant.

Section 12 was among the provisions singled out by the Philippine Bar Association as unconstitutional in its petition for allegedly infringing upon the constitutional right of the people to privacy and their right against unlawful searches and seizures.  Section 3 of our Constitution provides that: “The privacy of communication and correspondence shall be inviolable except upon lawful order of the Court, or when public safety or order requires otherwise as prescribed by law.” On the other hand, Section 2 guarantees the people “the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and that no search warrant shall be issued except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce.”

Conversely, Section 12 of RA 10175 attempts to circumvent the foregoing constitutional safeguards by breaking down the communication process into three parts: (1) identity of the parties to the communication; (2) content of the communication; and (3) transmission of the communication, and then limiting the requirement of judicial intervention as to identity and content of communication only. This cannot be done. Clearly, the entire communication process is constitutionally protected, not just the identity of the parties or content of the message. Verily, when an individual intends to keep his communications and transaction private, the entire information should be entitled to constitutional protection.

The Philippine Bar Association in its petition alleges that the law- enforcement agencies are given unbridled power to monitor, track and record where “netizens,” the coined term for citizens using the Internet, communicate, “including but not limited to which sites they visit, which computer systems they communicate with, how often they do it—all without the netizens knowing it.” Worse, Section 12 mandates Internet service providers to cooperate and assist law-enforcement agencies in the collection or recording of the data. Considering that no judicial intervention is required for these law-enforcement agencies to monitor and seize data—this is indeed a classic case of Big Brother spying on the hapless netizens.

The only supposed consolation is that information on the identity of the user and content of the electronic message is not collected—yet. However, this is merely a ruse to assuage the well-grounded fears of the public. In fact, nothing would prevent the law enforcement officers from using the traffic data obtained in order to secure a search and/or arrest warrant from the courts. Thus, there is a danger of proliferation of “fishing expeditions” brought about by the law.

Indeed, the recent issuance by the Supreme Court of a temporary restraining order against RA 10175 “is a timely and welcome move,” not only for netizens, but also for the people in general. Hopefully, the time given is sufficient for the legislators to rectify the law’s defects.

Atty. Joe Nathan P. Tenefrancia is a senior partner of CVCLAW Villaraza Cruz Marcelo & Angangco Law Offices (web site: www.cvclaw.com) where he is both the co-head of the Litigation Department, as well as head of the Telecommunications and Information Communications Technology Department. His field of expertise includes civil and criminal litigation, arbitration and alternative dispute resolution, corporate litigation and rehabilitation, administrative law, election law, mining and natural resources and telecommunications and information technology. He likewise has extensive experience in government service, having previously been assigned to key positions in the government.

Disclaimer:

This article has been prepared for information purposes only and should not be treated as legal advice.