(Updated) ALARM BELLS / BULLET POINTS FOR THE SUPREME COURT JUSTICES, FOR TODAY’S EN BANC ON CYBERCRIME LAW
[At today’s DOJ forum, the DOJ Asec said that traffic data just referred to a graph/ chart (he showed a visual aid of graphs) that summarized number of views, etc. Traffic nga. He said it was just like EDSA (maybe because of the word “traffic”) and that there were CCTV’s on EDSA, therefore, the data is public. Really. Is this the best the DOJ has to offer? The law defines traffic data as “the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.” In other words, it shows your entire journey in cyberspace. For each day. This is already in American jurisprudence. The “origin, destination, route, time, date, size, duration, type of underlying service” show how you have been using your internet: all the sites you have visited, every photo, document, video you downloaded, etc., etc. The DOJ Asec even said there was no “take-down” provision in the law and that they will not shut down private accounts, only public broadcasts, such as a broadcast of a terrorist attack or a mass suicide. Broadcast? New media na po ito, ang broadcast, radyo o TV; the law says “computer data”; the law says, “the DOJ shall issue an order to restrict or block access to such computer data.” Computer data is defined by the Cybercrime Law as “any representation of facts, information, or concepts in a form suitable for processing in a computer system xxx and includes electronic documents and / or electronic data messages whether stored in local computer systems or online.” In other words, any information uploaded online. Sabi nung DOJ Asec, broadcast — anobayun.]
In any case.
On to more intelligent beings, hopefully. The Supreme Court is supposed to meet en banc today to discuss, among other items, the injunction petitions against the Cybercrime Prevention Act of 2012, a total of 15. Last week, they could not muster a quorum, despite the urgency of the constitutional law issues involved.
For the justices who might not have staffmembers who have enough gumption and savvy to submit bullet points to their principals, here they are, for today’s en banc:
BULLET POINTS FOR THE EN BANC
Surveillance and stalking by government: “Section 12. Real-time Collection of Traffic Data. – Law enforcement authorities, with due cause, shall be 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.
“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.
“All other data to be collected, seized, or disclosed will require a court warrant.
“Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. xxx”
I don’t know about the justices but this, and Sec. 19, to me are the most objectionable and the most “on-its-face-unconstitutional” provisions of the Cybercrime Law.
True, it is “non-content” but look at how much content there is in traffic data (“the communication’s origin, destination, route, time, date, size, duration, or type of underlying service” – Sec. 12, Cybercrime Law.). Please open your personal computers, Justices. Please click the open button now. Then, open your internet window or browser. (Explorer or Google Chrome, etc.). There’s an icon on the right-hand corner that looks like three horizontal lines, or “Tools” or a wrench icon. Click this. It runs down a list of prompts. Click “History”.
That’s your traffic data, Justices.
It shows what time you started to use the internet. In effect, it shows what time you opened your computer (or what time you were awake, in effect), and what time you shut it down. For each day. Starting with most recent to oldest: October 9, 2012, backwards, up to traffic data of July 11, 2012. (The service provider is obliged to keep records of your traffic data for a longer period, six months, under the Cybercrime Law). In effect, it shows where you were and what you were doing at certain points of the day, from July 11, 2012 to Oct. 9, 2012. These data are made available to “law enforcement authorities” without any court order, without notice to you or anyone. They will get it from the server (internet service provider like Globe, Smart, PLDT, Sky, etc, who are obliged to turn them in under the Cybecrime Law).
The NBI, the DOJ Secretary and cybercrime units, the PNP and its cyberbcrime units can find out, without a court order, for instance: “Ang aga pala magising ni Justice Carpio o, alas-tres pa lang gising na siya, nagsi-surf” (“Geez, Justice Carpio is such an early riser, he’s surfing at 3am”); they can get this data, without permission, without a court order.
Or, for example: “Eh ayan si Justice Presby, alas-otso nang umaga nasa internet imbes nasa flag ceremony” (“Hey, there’s Justice Presby, he’s in the internet at 8am instead of attending the flag ceremony”); or, “Si CJ, nakatanggap na naman ng email, nakalagay sa title “from PNoy”, ang dami” (“CJ got another email it says in the title “from PNoy”, plenty”).
Your “history” or traffic data (please open it so you’ll know what data the NBI, DOJ, and PNP will be easily allowed access to) also shows: All the sites and windows, chatrooms, twitter accounts, youtube videos, you’ve visited, with the time you visited them, and how much time you spent in them. Easily. Without a court order.
It shows how many unopened emails you have in your Inbox for each time you opened your email account. It shows the title of the emails you opened. If the title shows the sender, it will show who the sender was and whether you composed an email for sending out.
Not only does it show all sites, it shows the titles of the attachments and titles of photos you’ve downloaded from your email. It shows the photos and documents you’ve downloaded from the internet – the actual photo and actual document, because the url is shown, just click the url.
In other words, it shows, for example, whether Justice Tessie or CJ Meilou downloaded Barack’s or John Lloyd’s or Dingdong’s photos or whether they visited a pilates site for their fitness regimen or Vicky Belo’s site for a shortcut to “thinness”.
It shows whether Justice Brion has been spending two hours googling, for example, Jennifer Lopez. Or how many, say carlos enrico shoes, Justice Peralta bought from Barney’s in New York. Or Justice Bersamin visiting sites on, i don’t know, alzheimer’s or parkinson’s; or the law sites that Justice del Castillo copied and pasted from; or the application forms for visas to, for example, the Maldives, that Justice Abad downloaded. Or the real estate sites, that, oh i don’t know (I’m writing this in the order that their photos appear in the SC website), Justice Villarama has been looking at for investments. Or the Youtube episodes of “Keeping up with the Kardashians” that, for instance, Justice Perez, downloaded. Or that maybe Justice Mendoza, for example, has been spending five hours on the Tron internet video game every night. Or that today at the en banc Justice Reyes has been looking at stuffed turkey recipes during the deliberation.
Surprised? It’s there in the Cybercrime Law. That’s what traffic data means. Look at your traffic data now in your personal computers. Then ask yourselves whether or not you are willing to surrender all these to a “detective” or a clerk for print-outs for their principal or their bosses without a court order. Your traffic data shows your state of mind, grief, worries, joys, playtime, penchant, obsessions at certain times of the day or night.
i could write a book just based on your traffic data, Justices; it will be a bestseller; Marites Danguilan-Vitug will supervise it, ABS-CBN publishing house will print one million copies, i will win the Pulitzer, it will be entitled: “The Twilight, New Moon, Eclipse Lives of the Supreme Court Justices”.
Never mind my bestseller, Justices, the compiled traffic data would be admissible in any court if collected under this law. Unless struck down.
Do you not think this provision is unconstitutional?
There are other alarming provisions:
Section 19. You already know this. The prior restraint provision: It gives the DOJ Secretary a power she does not have under the Constitution: to shut down any Facebook account or Twitter account or any site that she finds objectionable. Definitely TRO-able.
Overbroad libel law provisions: The clause: “…or any other similar means which may be devised in the future”: criminalizes acts not yet existing, criminalizes acts committed a hundred years from now. This is found in the provision “(4) Libel. – The 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.”. Definitely TRO-able.
Double jeopardy: “Section 7. Liability under Other Laws. – A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.”. Unconstitutional. TRO-able.
xxx xxx xxx
In fine, it is no one’s business what you have in your traffic data. But it’s there in “history”.
Any factotum in the NBI, DOJ, and PNP can view these, easily, just by sending a notice to the server – your traffic data, you, a Supreme Court justice. Even if you erase your “history” (there’s a prompt there to delete it), the server (Globe/ Smart/ PLDT/ Sky) keeps a record of it (for six months under the Cybercrime Law) accessible to any policeman authorized by the PNP.
Do you not think this is unconstitutional? On its face.