Justices grill gov’t lawyer on contentious provisions in Cybercrime Law

In questioning the solicitor general, the magistrates picked apart Sections 4(c)(4), 6, 7, 12 and 19, of the law.

By RONALYN V. OLEA
Bulatlat.com

MANILA – Supreme Court justices took turns questioning the government’s chief lawyer on the controversial provisions in the Cybercrime Prevention Act of 2012 or Republic Act 10175.

In his 30-minute speech during the oral arguments, January 29, Solicitor General Francis Jardeleza attempted to debunk what he called as claims by at least 15 petitioners.

Jardeleza zeroed in on hacking to justify the need for a law that punishes cybercrimes but the SC justices seemed not convinced.

Chief Justice Ma. Lourdes Sereno went through the provisions and noted that content-related provisions “seem not fit” and appear as “forced insertions.”

‘Forced insertions’

Sereno said that Section 2 (Declaration of Policy) clearly states that the intention of the law is to protect the information and communications technology infrastructure.

Sereno, however, noticed that other provisions, particularly Sections 5, 6 and 7 seem to deviate from the policy statement.

Section 5 pertains to aiding or abetting in the commission of cybercrime and attempt in the commission of cybercrime.

Section 6 states that all crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of ICT shall be covered by the law and that the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code.

Section 7 states that a prosecution under the Cybercrime Law shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

Due cause

Sereno also pointed out the absence of standards on due cause. Section 12 states that 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.

“Who will determine the animal that is due cause?” Sereno asked.

Justice Antonio Carpio, Justice Teresita Leonardo-De Castro, Justice Diosdado Peralta and Justice Marvic Leonen also raised the same question on due cause.

Jardeleza admitted: “Unfortunately that’s one of my misgivings with this law. It is constitutional but my right should better be protected.”

Peralta asked Jardeleza: “What assurance can you give us that authorities will use collection of traffic data for valid reasons?” To which, the Solicitor General cited the presumption of regularity in the performance of duties.

Jardeleza added: “There are remedies for abuse.”

Leonen asked: “Are we not giving authorities blanket authority to inspect packets of data?”

Peralta also asked if the collection of traffic data would be random. Jardeleza said: “No. Real time is not randomness, it is quickness.”

Peralta then said authorities should apply for a warrant.

Carpio asked lengthily about the collection of traffic data. Jardeleza explained that traffic data only refers to codes and not the content of communications.

Carpio asked if the collection of information such as those contained in a phone bill does not intrude into one’s privacy. The phone bill reflects the numbers called, duration of calls, among others.

Jardeleza said these are “not covered by privacy.” “Not all intrusions are unconstitutional,” Jardeleza said.

The Solicitor General argued that Section 12 “is all about identifying the IP [internet protocol] address of hackers.”

Carpio said that even without Section 12, the E-Commerce Act penalizes hacking.

Peralta noted that Section 12 applies not only to hackers.

‘Chilling effect’

Justice Roberto Abad asked Jardeleza if those who like or share something they did not author may be held liable for libel.

“Yes, defamation is defamation, whether we communicate through an instrument or a megaphone, letters, person to person, tweets, Facebook or e-mail. How about the person in a viral explosion, what do we do? Is reputation not of value anymore? So this is going to remain a question. Things can go viral (in the internet), but what about reputation?” Jardeleza said.

“If ‘liking’ a post considered libelous is also libelous, then this law is bad,” Abad said. “It can have chilling effect for those of us who like opinions, which we didn’t author in the first place.”

Carpio also asked if sending a libelous statement through email can also be punished under the law. Jardeleza answered: “Yes.”

Double jeopardy

De Castro and Carpio picked apart Section 7 of the law.

“Section 7 could be read to mean that an act can be subjected to punishment twice,” De Castro said. “Double jeopardy also prohibits double punishment.”

Jardeleza said Section 7 is not applicable to libel. “The penalty for libel is the penalty under the Revised Penal Code. Libel is a content-offense under RA 10175.”

Jardeleza added that journalists cannot be sued twice under the single publication rule.

De Castro said that Section 7 implies that libel can be punished twice.

Carpio said libel provisions in the law “impinge on free expression.”

Carpio asked Jardeleza if someone who is convicted of estafa can be still held liable under the Cybercrime Law if he/she used ICT. The solicitor general replied in the affirmative.

“But you say it’s [use of ICT] just a qualifying circumstance and the same offense,” Carpio said, asking why a higher penalty is imposed for offenses.

Meanwhile, Carpio asked Jardeleza if one needs to be online to commit a cybercrime. Jardeleza said “Yes.”

Carpio, however, pointed out that nothing in the law explicitly states so.

Cybersex

Leonen and Peralta asked Jardeleza about the provision on cybersex.

Under Section 4, cybersex is defined 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.

Peralta said the word “favor” is vague.

Leonen asked if the sexual activities of consenting adults constitute cybersex. Leonen said the definition of cybersex is “too broad.”

Jardeleza said the law targets “cyber-prostitution and not about obscenity.”

“But cyber prostitution and sex trafficking are not there [in the provisions],” Peralta said.

Overbreadth

Lawyer Julius Garcia Matibag, counsel for one of the petitioners, said the Solicitor General “evaded the issue of overbreadth” in his presentation.

Matibag said that certain offenses — like cyberlibel, cybersex, aiding or abetting a cybercrime and attempt in committing a cybercrime, and others — suffer from overbreadth because they also punish protected speech and expression. “But the SolGen evaded this by presenting an example that only deals with pure unlawful conduct — consummated hacking and the consummated cybertheft resulting therefrom,” Matibag said.

“We firmly believe that the respondents failed to overcome the heavy presumption of unconstitutionality of RA 10175, which is not an ordinary penal statute but one that also penalizes protected speech and expression and unlawfully intrudes into our privacy, as the statute — in punishing certain acts — does not distinguish between protected speech, on one hand, and unprotected speech and conduct, on the other hand,” Matibag said.

Consistent

Meanwhile, Edsel Tupaz, lawyer for petitioner Bayan Muna, noted that the justices were consistent in their line of questioning.

“Seasoned magistrates as they are, they saw the infirmities in the law,” Tupaz said in an interview shortly after the session.

He noted that Carpio and De Castro were consistent in their views as both justices raised the same questions during the first round of oral arguments on January 15.

Tupaz said the most contentious provisions refer to enforcement of the law. “And this is problematic. To operationalize a statute, spell it out, define standards,” he said.

Matibag said they are confident that the high court will side with the petitioners by, at the minimum, nullifying Sections 4(c)(4), 6, 7, 12 and 19, and perhaps even Section 5; at the maximum, nullifying the whole statute.

All parties are given 20 days to submit their memoranda.

Lawyer Harry Roque asked the SC to extend the temporary restraining order (TRO) that will lapse on February 6. Sereno said they will issue their decision in due time.