Magna Carta for Philippine Internet Freedom to replace the Anti-Cybercrime Law?

As the TRO on RA 10175 [1] or the Anti-Cybercrime Law is about to conclude, renewed interest thereon is at stake and now entwined with the introduction of the Senate Bill (SB) 3327 [2] filed by Senator Miriam Defensor-Santiago and purporting to be its better version, the Magna Carta for Philippine Internet Freedom.

The provisions of the SB 3327 were devised from the suggestions of Filipino netizens via online crowd-sourcing – where a group of IT specialists, software designers, academics, bloggers, engineers, lawyers and human rights advocates drafted the MCPIF through discussions in various social media channels (e.g. Facebook, Google+, Twitter). If passed, it will be the first Philippine law, to be crafted through online crowd-sourcing.

Backing track, SB 3327 was submitted to address the dilemma in RA 10175.  Going through both, I noticed a number of disparities as follows:

SB 3327 does not allow illegal searches and seizures by authorities as supposed to be allowed by RA 10175.  Senator Santiago appeals that the RA 10175 violates the constitutional right to privacy and constitutional guarantee against illegal search and seizure since it permits warrantless real-time collection of traffic data.

However, as provided in RA 10175, traffic data pertains merely to the communication’s origin, destination, route, time, date, size, duration or type of underlying service.  It does not include contents and identities.  Hence, I cannot agree that the law shall violate the individuals’ constitutional right to privacy and guarantee against illegal search and seizure because again, only the technical information of the data is being collected and not the users’ identities and materials’ contents.

Conversely, SB 3327 specifically provides that a court warrant should be required to effect collection, seizure or collection of all other computer data.  It provides for the detailed procedures in securing warrants, requirement of proper notice, as well as the limitation of seizure to data while excluding physical property.  Accordingly, the bill supplies a more explicit and strict guideline for collection of any data in order to ensure the constitutional right of individuals to due process.

Another vital gap is that SB 3327 condemns the provisions of RA 10175 that allegedly ensue to illegal take down of websites.  RA 10175 provides for the issuance of an order from Department of Justice to restrict or block the access to a particular computer data when found to be prima facie in violation of its provisions without due process of law.  I believe that the prima facie proof leading a computer data to be in violation of the law is rational for the restriction of the website where it is found since it is aimed to avert further injury to the individual purporting to be affected. Supposing that the concerned computer data was subsequently found to be not defamatory or disreputable, the blocking shall be lifted anyway.

On the other hand, SB 3327 requires a court order before authorities may take down or censor a website. Both SB 3327 and RA 10175 direct government agencies to secure collected data to ensure the individuals’ constitutional right to privacy.

It is also worthy to note that SB 3327 hampers double jeopardy as opposed to RA 10175 which tolerates double jeopardy by the prosecution of offenses committed against its provisions as well those of the Revised Penal Code and special laws even if the offenses arise from a single act.

As regards to the SB 3327, another salient feature is that it supports the creation of the proposed Department of Information and Communication Technology (currently pending before the Congress), as well as equips law enforcement agencies and the military with stipulations that would ensure appropriate defense against any cyber attacks and terrorism. 

Alternatively, RA 10175 also presents the conception of a cybercrime unit, which will be jointly handled by the National Bureau of Investigation and the Philippine National Police and shall be manned by special investigators to exclusively handle cases involving contraventions against the act.

Meanwhile, both SB 3327 and RA 10175 provides for sanctions for offenses such as child pornography, child abuse and human trafficking which can be committed online. 

By far, despite the mentioned disparities, SB 3327 and RA 10175 are spiritually similar.  Just that, the former provides more specific guidelines and procedures as compared with the former.  The bill conveys remarkably comprehensive provisions that do not only crack down cyber crimes but also vigorously protects constitutional rights of privacy, due process and freedom of expression.  It is almost perfect compared to the vague provisions of RA 10175.  We cannot however just scrap a piece of legislation due to its vagueness. It is not vain to be ignored. 

It was submitted that at the end of the day, freedom comes with great responsibility.  In our current state, the rapid advancement of technology obviously do not go hand-in-hand with an apt sense of responsibility and discipline by its users.  Clearly without proper regulation, technology could tremendously be exploited by some and worse, at the expense of other innocent netizens or even non-netizens at some point.   Grimly, the need to be reproved by such laws is eminent.  

It is high time to police the cyberspace.  The bill and the law should be harmonized in order to craft a cybercrime law that we can finally make use of.

 

[1] RA 10175: http://www.gov.ph/2012/09/12/republic-act-no-10175/
[2] SB 3327: http://www.senate.gov.ph/lisdata/1446312119!.pdf