SolGen oral arguments Cybercrime Law & some comments

      If you were not at the Supreme Court yesterday and want to get more details beyond the storified version of the Solicitor General’s oral arguments on the Cybercrime Law, here they are: these are right-clicked from rappler reporter Purple Romero’s twitter account (twitter.com/purpleromeropo), they’re live tweets; i copied them from bottom to top for a chronological flow of the proceedings,  consolidated where proper instead of paragraphing every 146 letters of tweet.

    We could call them:  “court transcripts by live tweets”, a new phenomenon in judicial proceedings.

   Just some comments so I won’t have to interrupt the flow. The Solgen said that surveillance of traffic data will only show the I.P. address and not the identity of the person. Jeez.

    An I.P. address is not just a number. Most of us who use the internet for work or communication use only one or two personal computers: your mobile/ laptop personal computer and a desktop personal computer in the office. Whatever computer you use, whether your PC or a public computer,  law enforcement authorities who have your IP address and are on real-time surveillance are  capable of  knowing where you are.  An I.P. address of your personal computer  leads to your office address or your home address either through the records of the internet service provider or through physical surveillance; and therefore to your identity.  And then PO1 (police officer 1)  can continue gleefully following your every activity in the internet – without a court order!

      When confronted with the absence of standards for what constitutes “due cause” as ground for real-time collection of traffic date (real-time surveillance of internet data) thru questions from CJ Sereno, Justice Carpio, Justice Tessie de Castro, and Justice Marvic Leonen, (what is due cause?), the SolGen, after hemming and hawing,  in the end, said (and I don’t blame him, his is an unenviable job): “law enforcement can start with internal rule”.

        Internal rule? Kalurky. (kaloka, rough translation: drives me crazy or are you mad). It is being suggested that  law enforcement authorities would agree among themselves that they would be angels for all time and will not snoop on anyone’s internet activity except try to track down the code-breaking & code-writing of hackers. This is like saying: Let’s just trust them na lang, okay.

            From twitter.com/purpleromeropo: “Oral arguments on the Cybercrime law now starting at SC. Solgen Francis Jardeleza: Revolutionary change has given malefactors to invent a new crime: cybercrime. Jardeleza: Most important chapters of Cybercrime law are 2,3,4. Chapters 2&3 define acts punishable under the law. Chapter 4  specifies new investigative tools to effectuate the law, to locate and identify the anonymous cyber criminal… Jardeleza outlining how Cybercrime law can help authorities trace and arrest “Mr. Hacker.” Jardeleza: The specter of Big Brother was raised. We categorically say RA 10175 does not authorize Big Brother surveillance. Jardeleza: Sec. 12 will only bring law enforcement to IP address, not address like Kalaw 1, 2, 3,4, 5. Jardeleza: We humbly submit that Sec.19 (takedown clause) be struck down, but Sec. 19 does not make void whole Ra 10175. Jardeleza: Is it unconstitutional for the State to criminalize libel? According to this Court, no. Jardeleza: If an utterance is libelous in the physical world, doesn’t it follow that it is libelous in the cyberworld? Jardeleza: Defamation is defamation, whether we communicate through megaphones, letters, radio, tv or email. Jardeleza: For journalists – defamation is defamation whether stories find themselves printed in broadsheet or internet edition. Jardeleza: A “like” is an approval of opinion. Jardeleza: Can a journalist who works for same paper with print and online edition be prosecuted twice? We humbly submit no….

Justice Abad: Can online libel be punished even without RA 10175? Jardeleza: Yes.

Abad: We have legislative admission that online libel does not clearly extend to Internet postings

Jardeleza: Things can go viral – what about reputation?

Justice De Castro: Libel will be considered under broad crimes in Sec. 6

Leonen: Congress does not seem to understand that libel in 1935 is not the libel we have today

Jardeleza: There is no freedom of expression involved in the case of Mr. Hacker.

Leonen: Wouldn’t the best way to protect us from libel is through civil action? Jardeleza: These are matters we submit to those elected

Justice Carpio: If penal law suppresses freedom of speech, it can be facially attacked? Jardeleza: Libel is unprotected speech.

Carpio: You can get traffic data from PLDT without court warrant, correct? Jardeleza: Yes, provided there is due cause

Carpio on collection of traffic data w/o warrant: Let us go to the judge! If u want we can designate a judge 24/7.You can go to his house

Jardeleza: Not all intrusions are unconstitutional, [they are unconstitutional] only if they are unreasonable

Carpio: It’s the use of internet that makes it a cybercrime? Jardeleza: Theoretically, yes

De Castro: Who will initiate determination of due cause? The law does not say how due cause is to be determined. Jardeleza: You’re right.

Jardeleza: The medium can change, but the competing values are the same. Does it harm reputation?

Justice Bersamin: Attempt in the commission of cybercrime – in the revised penal code there is overt act, we don’t seem to require it here

Jardeleza: There is no definition (of attempt in the commission of cybercrime) in RA 10175

Justice Del Castillo: There is no definition of due cause, it’s subject to abuse.

(1/2) Leonen: Are we not giving too much blanket authority to authorities to inspect data packet?

(2/2) Jardeleza: It’s constitutional but we agree there could be more robust procedures

Jardeleza: Cybersex targets cyber prostitution not obscenity.

CJ Sereno: This innocuous-looking section (Sec.3) is the one that caused the most objection (Sec.3 is the definition of terms)

CJ Sereno: You said Sec. 12 is the heart of regulation. If we strike it down, this law is good for nothing.

CJ Sereno: We might ourselves find standards for due cause,  absent.

Jardeleza: Law enforcement can start w/internal rule

Carpio: Why are we allowing law enforcers to do a shortcut? They could always go to the judge.

Abad: I do not find in cybersex provision anything on prostitution or trafficking. The law does not say that. That’s the problem.

Abad: What assurance can you give us that policeman will use real-time collection for a good purpose? None.

Parties are given 20 days to file respective memorandum. Petitioners will file second amended petition on Jan.30.

CJ Sereno on TRO extension: We will address that in due time.

 

 

(Updated) Bullet points for the Supreme Court justices, en banc today, Cybercrime Prevention Act

      (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.