‘New Cybercrime Law is e-Martial Law’ – youth solon
The passage of Republic Act No. (RA) 10175 or the Cybercrime Prevention Act of 2012 will severely hamper the freedom of expression in the Internet and post threats to user privacy, fears that are reminiscent of the Martial Law era, said Kabataan Partylist Rep. Raymond Palatino.
“There are several provisions in the new Cybercrime Law that post threats to free speech, expression, and the right to privacy of Internet users. It’s equivalent to imposing Martial Law online,” the youth solon said.
Calling RA 10175 an “e-Martial Law” legislation, Palatino compared it to several famous Marcos-era decrees, particularly President Ferdinand Marcos’ Letter of Instruction No. 1, which led to the sequestration of several media outfits during Martial Law.
“All of these issues remind us of how Marcos released decrees and laws that enabled his regime to search and destroy materials he considered subversive. The only difference is, now, the curtailment of free expression has become high-tech,” Palatino said.
RA 10175 is a consolidation of Senate Bill No. 2796 and House Bill No. 5808 passed by both chambers of Congress last June, and was signed into law by President Benigno Aquino III on September 12.
The new law provides specific guidelines on the “prevention, investigation, suppression and the imposition of penalties” for cybercrimes, which include illegal access, interception, data and system interference, identity theft, cybersex, “cyber-squatting” or the misleading acquisition of internet domains, child pornography, and online libel.
Threat to privacy
However, certain provisions in the new law “flagrantly empowers state forces to collect personal data from users without their knowledge,” Palatino said.
Chapter IV Section 12, for example, authorizes the Department of Justice (DOJ) and the National Bureau of Investigation (NBI) to collect traffic data from users even without a court warrant. RA 10175 defines traffic data as data which include the electronic communication’s origin, destination, route, time, date, size, duration and even type of service.
The said provision excludes the collection of content or identities of electronic files, both of which require a court warrant before state authorities can lawfully collect said information.
“But there are now advanced methods that can reveal identities and other private information simply from traffic data,” Palatino said. “Collection of such information goes against several provisions of the 1987 Constitution,” he added.
Section 3(1) of the Bill of Rights in the Constitution states, “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.”
Upon issuance of a court warrant, Internet service providers can even be compelled to produce all available data for any particular subscriber.
Also, Chapter IV of RA 10175 also empowers government authorities to keep all collected data for up to six months. “In the fast-paced electronic era, six months is an eternity, especially as the creation of back-up copies for unscrupulous or unauthorized filing of shady officials,” Palatino said.
“We fear that such provisions might start an online witch hunt for those that are vocal about criticizing the government, and even whistle blowers. With this new law, the Internet is no longer a safe place to air dissent. Now that’s why we call it a de facto e-Martial Law,” Palatino explained.
Due process issues
Meanwhile, Atty. James Mark Terry Ridon, national president and general counsel of Kabataan Partylist, also pointed out “due process issues” in RA 10175.
“The law may be treading upon unconstitutional waters on the powers being granted to law enforcement agencies, which includes preservation, disclosure, search and seizure and destruction of computer data,” Ridon said.
Ridon explained that certain provisions, including the sections on preservation and disclosure of data, may give rise to due process issues.
“In RA 10175, the power to compel the disclosure of computer data through a court order has been granted to law enforcement authorities. Although the law requires the issuance of a court warrant prior to such order, the nature of such court warrant is unclear. This is due to the fact that instead of the order to disclose arising from such court order or warrant, it is the law enforcement authorities that are imposing the order to disclose information,” Ridon said.
“This may be a violation of the constitutional rights to privacy and due process, as only the courts can compel, through an order, the production or disclosure of information regularly within the ambit of the right to privacy,” Ridon added.
Sequestration and destruction of property
Ridon also expressed fears on sections that empower government forces to seize and destroy computer data.
“As to search and seizure, the procedure state in the law does not follow the constitutional, statutory and jurisprudential standards and doctrines on the conduct of search and seizure of private property,” Ridon said.“There is no mention on the conduct of accounting on the property seized, nor does the law require the presence of the persons owning such property to be seized, among others persons who must be present during the conduct of search and seizure operations,” Ridon added.
RA 10175 also states that upon the expiration of the period provided, computer data subject to preservation and examination shall be destroyed.
“This is a dangerous provision that allows the taking and destruction of private property without a determination whether such property are proceeds or instruments or related to a criminal act to merit continuing seizure and eventual destruction,” Ridon said.
“Without qualification, all computer data that had been subject to preservation and examination orders may be summarily destroyed instead of being returned to the owners, regardless of whether such computer data are not proceeds, instruments or related to a criminal act,” Ridon added.
The anti-cybercrime law is supposed to be the legal instrument of the NBI, DOJ, and other agencies in running after hackers, malicious spam and virus senders, cybersex operators, and hi-tech gangs that engage in phishing, credit card fraud, among others.
“But the inclusion of online libel in the list of dangerous cybercrimes would fundamentally affect and alter the implementation of the law,” Palatino said.
The youth solon cited Senator Vicente “Tito” Sotto III’s recent statement wherein the senator said the new Cybercrime Law may be used to penalize users who post defamatory messages against him online.
“Under this law, politicians can easily file charges against ‘hostile and combative’ critics and witnesses by claiming that virtual protesters have threatened their life and property. Censorship will lead to repression once an activist or reform advocate has been labeled a cybercriminal,” Palatino said.
“Woe to the NBI agent and DOJ prosecutor who will be swamped with cybercrime cases filed by showbiz actors, politicians, business tycoons, and other untouchables who want to punish their online critics. Instead of dealing with cyberwarfare, our agents will be investigating online libel,” the youth solon added.
“RA 10175 is a big issue, especially for the technology-savvy youth. Just as what Marcos did during Martial Law, this new law signed by Aquino posts threats to Internet freedom and might be used to run after government opposition,” Palatino said.###