FREDERICK BASE

CONSTITUTIONAL LAW REVIEW

ATTY. VICTOR L. TULALIAN
(Professor)
Base, Frederick E.
(Student)
AN OVERVIEW ON THE UNCONSTITUTIONALITY OF
CYBERCRIME LAW
In a new legislation recently signed into law by the countrys president, the
Philippines has outlawed cybersex and online sex video chat (you might know
them as "cam girls") as part of a comprehensive new anticybercrime and libel
law!
"he #ybercrime Prevention $ct of %&'% defines cybersex as "the willful
engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a
computer system, for favor or consideration!"
"he law also makes "illegal access," "illegal interception of data,"
"cybers(uatting," and spam illegal) online libel is part of the new law as well!
*hether +ilipino authorities are going to be trolling cam sites or setting up
sting operations remains unclear!
,aw enforcement agencies also faced various roadblocks when investigating
cybercrime incidents! -ven during emergency situations, service providers
were reluctant to cooperate with law enforcement officers, citing the need to
protect subscriber privacy!
"heoretically, search warrants would have addressed that problem but they
were difficult to procure and involved a lengthy process that would have given
cybercrime offenders enough time to delete precious data and cover their
tracks!
In crossborder cybercrime incidents, law enforcement efforts were even more
challenging since foreign governments were not e(uipped to respond (uickly
to re(uests for assistance and no international framework was in place to
address crossborder investigations and prosecution!
"o be sure, no one in government was asleep at the wheel! "he Philippine
.ational Police (P.P) and the .ational /ureau of Investigation (./I), blessed
with foreignfunded training in computer forensics and cybercrime
investigation techni(ues, proceeded to organi0e and staff their cybercrime
units! "hese were the two agencies that were very active in cybercrime
investigation since the passage of the -#$!
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1eanwhile, in the realm of international cooperation, the 2epartment of
3ustice (243) officially endorsed the Philippines accession to the #ouncil of
-uropes #onvention on #ybercrime, also known as the /udapest
#onvention!
"he treaty was fast becoming the vehicle to harmoni0e cybercrime definitions
and promoted international cooperation in cybercrime enforcement and
investigation! $fter all, the /udapest #onvention was signed by many
countries in -urope and even counted non-5 countries such as the 5nited
6tates, #anada, 3apan, #hina and 6outh $frica as among its memberstates!
It was against this backdrop that various cybercrime bills were deliberated
upon, in both houses of #ongress! -arlier attempts to enact the law failed and
it would take #ongress more than '& years to pass the #ybercrime $ct!
"he salient features of the $ct include internationally consistent definitions for
certain cybercrimes, nuanced liability for perpetrators of cybercrimes,
increased penalties, greater authority granted to law enforcement authorities,
expansive 7urisdictional authority to prosecute cybercrimes, provisions for
international cybercrime coordination efforts and greater ability to combat
cybercrimes!
Indeed, many of the cybercrimes defined under the $ct hewed closely to the
/udapest #onvention and it borrowed heavily from the conventions definition
of illegal access and interception, data and system interference, misuse of
devices, computerrelated forgery and computerrelated fraud!
5nder the -#$, cybercrimes can be prosecuted only if the offense was
consummated! 5nsuccessful intrusions or hacking incidents were not
punishable! +rom a law enforcement standpoint, this means no arrest can
occur until the harm or in7ury is actually inflicted upon the victims! 1ere
attempts were not punishable! $lso, only the principal perpetrator was sub7ect
to criminal penalties!
"hese were addressed under the $ct, where attempted cybercrimes are now
punished and those who aid and abet the commission of cybercrimes are also
made liable! "his more nuanced approach to liability translates to greater
flexibility in law enforcement and prosecution since cybercrimes can be
stopped while being committed, though not yet consummated!
"he $ct also increased the penalties from those imposed under the -#$!
+rom the standard threeyear prison term under the -#$, the $ct increased
the penalty to a period from six to '% years for a lot of cybercimes! "his
ensured that any person convicted under the $ct would surely face
imprisonment since the option to apply for probation would no longer be
available!
In direct response to the difficulties faced by law enforcement agencies in
investigating cybercrime incidents, the $ct gave greater authority to the P.P
and ./I to engage in warrantless realtime collection of anonymi0ed traffic
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data as well as the explicit authority to secure warrants for the interception of
all types of electronic communication!
"o prevent the destruction of precious evidence housed in various service
providers like cell phone companies and broadband providers, the $ct
re(uires the preservation of data for a minimum of six months! "his gives law
enforcement authorities the ability to investigate past cybercrime incidents as
well as lead time to get pertinent court orders to access such data!
"he $ct further specifies the means and manner by which law enforcement
authorities should conduct computerrelated searches and sei0ures of data,
their custody, preservation and destruction!
6ince many cybercrimes are transnational in character, #ongress vested in
courts an expanded 7urisdiction over the commission of cybercrimes! "he pre
war 8evised Penal #ode took a more conservative stance and as a rule, the
law was not applicable to acts committed outside the physical boundaries of
the republic!
In contrast, the application of the $ct was expanded beyond the Philippines so
long as the perpetrator was a +ilipino, or the effects of the cybercrime were
felt within the country! In addition, the law applied if any of the elements were
committed in the country or if these were done using e(uipment located here!
$ccordingly, to ensure the proper ad7udication of cybercrimes, the $ct
mandates speciali0ed training for 7udges in newly created cybercrime courts!
6ince the Philippines has yet to enact the /udapest #onvention and take
advantage of the international cooperation available to its memberstates,
#ongress, in the meantime, organi0ed the #ybercrime 4ffice at the 243 and
designated it as the central authority in all matters related to international
mutual assistance and extradition! It is meant as a stopgap measure, which
hopefully can transition seamlessly when the country accedes to the treaty!
+inally, the #ybercrime $ct created the #ybercrime Investigation and
#oordinating #enter for policy coordination among concerned agencies and
the formulation of a national cybersecurity plan that includes the creation of a
computer emergency response team!
#learly, the approach taken by #ongress in the #ybercrime $ct was to enlist
the participation of various sectors of government to combat cybercrime not
only at the national level but also internationally! *hile the /P4 industry
lobbied for the passage of the $ct, it is undeniably a statute that applies to
anyone who can potentially become a victim of cybercrime!
5nfortunately, not all statutes are perfect and although the best of intentions
are embedded throughout the $ct, some flaws in the law have caught the
attention of the public, of late!
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Indeed, various petitions have been lodged in the 6upreme #ourt to (uestion
the constitutionality of the $cts provisions relating to libel, increased
penalties, realtime collection of traffic data and the socalled takedown
provision!
4nline libel was not an original creation under the $ct! In fact, as early as
%&'&, the 6upreme #ourt recogni0ed that comments on a blog entry could
give rise to a prosecution for libel! "o its credit, the high court reasonably
interpreted the law! "he complainant argued that it was permissible to choose
where to initiate the case upon the theory that online libel was published
simultaneously throughout the Philippines!
8ecogni0ing that the law did not allow a party to choose inconvenient venues
for online libel cases, the #ourt limited the choice to only one9the place
where the complainant resides!
"he $cts libel provision seemed harmless on its face! "he law itself imposed
no specific penalty unlike in other cybercrimes mentioned in the statute! /ut
the $ct provides that online libel is punished by one degree higher and that
the prosecution under the law would still be independent of a separate
prosecution for libel under the 8evised Penal #ode!
5nder the old regime, an accused facing libel can expect to face no more than
four years and two months 7ail time! 5nder the $ct, the maximum penalty shot
up to '& years! 6ince the penalties were cumulative, a single act of online
libel can attract a maximum 7ail time of more than ': years!
"he double convictions and the increased penalties made the accused
ineligible for probation, thus guaranteeing imprisonment!
6ince the acts and the crime of online libel are the same as that defined in the
8evised Penal #ode, it has been argued that the law violates the rule against
double 7eopardy which seeks to protect citi0ens against being penali0ed twice
for the same offense!
$lso, by imposing increased penalties for ordinary crimes committed ;by,
through, or with the use< of information and communications technologies
(I#"s), #ongress was unfairly segregating users of I#"s and treating them
more harshly!
"here seems to be no rational basis for this classification and the
discrimination imposed by #ongress violates the e(ual protection clause that
re(uires the government to treat all citi0ens e(ually!
6ince the online libel law targets the fundamental right to free speech, the
onus is upon the government to demonstrate a compelling state interest in
penali0ing online libel in this manner, and show that there was no less
restrictive alternative available to promote that interest!
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In the desire to empower law enforcement agencies, the $ct authori0es the
P.P and the ./I to conduct realtime collection of traffic data, or data about a
communications origin, destination, route, date, si0e and duration, but
excluding identities and content!
In the context of mobile communications, traffic data will reveal the originating
number, the destination number, the time and date of the communication, as
well as the length of the conversation or the si0e of the 616 message sent!
"he law enforcement authorities may claim that the traffic data are
anonymous, but the fact is that the law allows collection of ;specified
communications,< which necessarily means the P.P or ./I must already
know something about the communications or the identity of their source!
-ven if they did not, it is easy to know the identity of a cell phones owner by
simply dialing the number and employing various social engineering
techni(ues to get that information! 4nce the identity of the person has been
determined, the realtime collection of traffic data effectively becomes a
targeted surveillance!
"hat is not to say that government authorities are prevented from engaging in
surveillance, but the #onstitution re(uires the intervention of a 7udge and the
issuance of a warrant before this authority can be exercised!
6adly, the realtime collection of traffic data under the $ct does not afford
anyone the same protection! Indeed, the privacy of suspected terrorists are
protected to a greater degree under the =uman 6ecurity $ct that at least
re(uires the intervention of the #ourt of $ppeals in any surveillance and the
careful handling of the evidence collected!
.o similar protections exist under the $ct, not even in the case of ordinary
citi0ens! #ertainly, these violate the right to the privacy of communications,
and the right against unreasonable searches and sei0ure!
+inally, the most odious provision of the $ct is the socalled takedown
provision that authori0es the 243 to block access to any content upon a prima
facie (or first glance) finding of a violation of the provisions of the $ct!
"his means that a person who believes he has become the victim of an online
libel can file a complaint in the 243 and if at first blush it appears there has
been a violation of the $ct, an order will be issued directing Internet service
providers to block the content!
5nder this scenario, the 243 has effectively become the 7udge, 7ury and
executioner without the benefit of a trial or a conviction established beyond
reasonable doubt!
"he takedown order has no time limit and can be in place for years or even
forever! "he complainant is not re(uired to file a case in court while the
takedown order is in place! In fact, it is likely that no such case will ever be
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filed since the remedy sought has already been obtained, as the online
content is already gone!
"he takedown power can even be invoked to block sites wholesale such as
those that allegedly violate the 8etail "rade ,aw ($ma0on, $libaba, -bay,
i"unes) or offer voice services without the benefit of a local franchise (6kype,
>oogletalk) or facilitate copyright infringement (Piratebay, +ilestube,
/ittorrent) or allow online gambling (Pokerstars) or violate the 2ata Privacy
$ct (+acebook, +riendster)!
"hese cumulative blocks and filters permit the 243 to establish the Philippine
e(uivalent of the >reat +irewall of #hina! #ertainly, with this takedown
provision, the 243 will be the most powerful authority on all matters involving
the Philippine online community!
+rom a free speech standpoint, the takedown provision is an effective prior
restraint to the right of a person to express himself!
-ven though the blocking of the content happens after the speech is made,
the censorship that is done immediately or shortly after the posting of the
allegedly offensive content, without the benefit of a trial or proof beyond
reasonable doubt, is no different from preventing the speech itself!
5nder constitutional law a prior restraint upon the freedom of expression is
not permitted and is presumed to be unconstitutional!
"he burden rests with the state to show that the suppression of speech is
necessary to avoid a clear and present danger of evils, which such speech
will bring about and which the 6tate has a right to prevent!
In the case of the takedown provision, the grant of overbroad authority to the
243 under all circumstances makes it difficult to hurdle the challenges against
its constitutional infirmity!

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