‘Complicated voting’ on cybercrime law

Rappler.com

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The NBI looks forward to a favorable decision, saying it will help in terms of law enforcement, legal defense, and deterrence to cybercrimes

'RESTRICTIVE, NOTORIOUS.' This is how US-based Freedom House describes the anti-cybercrime law, which it said marred the Philippines' "excellent" Internet freedom record. File photo by Hoang Vu

MANILA, Philippines (UPDATED) – Supreme Court justices deliberated on the controversial Cybercrime Prevention Act of 2012 on Tuesday, February 4, but decided to postpone an earlier plan to issue a verdict on it.

We reported this morning that the cybercrime law was on Tuesday’s agenda, but insiders said the voting turned “complicated.” In an en banc session, at least 4 drafts were passed around regarding the constitutionality of the law. 

The justices need another session next week to rule on the matter, they added.

In deciding on the constitutionality of the law that was signed by President Benigno Aquino III in September 2012, the 15 SC justices try to seek a balance between fundamental freedoms and government control.

It was a little over a year ago – on Jan. 15, 2013 – when the Court started hearing oral arguments for and against the law. The Court stopped its implementation following 15 petitions calling for its abolition.

Various sectors and media organizations, including Rappler, questioned its stiff and ambiguous provisions on online libel, heavier penalties for other online crimes, and the so-called “takedown” clause, which authorizes the Department of Justice to take down online content without a court warrant. (READ: 50 shades of liability)

In 2011, the House of Representatives killed the online libel provision – then called cyberdefamation. But the Senate resurrected it in January 2012. The libel provision was retained when the House of Representatives agreed to adopt the Senate version during the bicameral conference committee hearings in 2012. (READ: The road to the Cybercrime Prevention Act of 2012)

NBI welcomes it

The government’s primary investigative agency, the National Bureau of Investigation (NBI), said the law will empower law enforcement and prosecution against illegal activity online.

NBI Cybercrime Division (CCD) chief Ronald Aguto told Rappler that although the state already prosecutes cyber criminals whose acts are covered by other Philippine laws, anti-cybercrime law enforcement authorities say the legislation will definitely help in their operations.

Based on data gathered by the NBI CCD, the most prevalent cyber crimes are identity theft, hacking incidents, and online fraud.

The unit estimates 20 cases of cybercrime offenses filed in 2013. The rest are under investigation.

Identity theft cases form the bulk of these cases. Aguto estimated that there are also 20 pending identity theft cases either for prosecution or investigation.

The NBI CCD said the law will help in the anti-cybercrime effort in terms of 3 aspects: law enforcement, legal defense, and deterrence to cyber crimes.

(1) Law enforcement

According to Aguto, one of the provisions that will help anti-cyber crime efforts in the country is the mandatory 6-month online data retention of Internet Service Providers (ISPs).

The provision that obliges the ISPs to retain logs… So in case of an investigation, pwede kaming kumuha ng IP addresses sa kanila. Because currently, if you go to the ISPs, sinasabi nila palagi wala silang data retention,” he explained.

(The provision that obliges the ISPs to retain logs… So in case of an investigation, we can get the IP addresses of the suspects from the ISPs. Because currently, if you go to the ISPs, they say they have no data retention.)

The NBI CCD Chief was pertaining to Chapter 4, Section 13 of the Cybercrime Prevention Act, which states: “The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of 6 months from the date of the transaction.”

Initial investigation by law enforcement agencies, he said, are often hampered by the lack of data. By the time victims report cases to them, the online activity becomes almost impossible to trace. 

“It’s hard for us, especially since most of the investigation that we are doing are a reactive kind of thing,” he said, explaining that cases are probed most of the time after a victim issues a complaint before their office. 

When they realize na hindi na pala yung kausap nilang company yung pinadalhan nila ng pera, they go to the office,” he shared. (When they realize that they are not transacting with the company they are supposed to wire money to, they go to the office.)

Often, victims get to know about the fraud or any other online criminal activity months after the commission of the crime. 

(2) Legal defense

The specificity of the law in defining what cyber crimes are, according to Aguto, also bolsters the state’s legal defense against said crimes.

Among the cybercrime offenses outlined in the Cybercrime Prevention Act of 2012 are: Illegal Access and Interception, Data and System Interference, Cyber-squatting, Computer-related Forgery, Computer-related Fraud, Computer-related Identity Theft, Cybersex, Child Pornography, Unsolicited Commercial Communications, Online Libel, and other offenses.

These are all defined separately. A clear outline and definition of these violations helps in criminal prosecution as it provides “ascertainable standards and well-defined parameters” that would immediately negate the usual defense that the act was not criminal in nature. 

Any legal defense emanating from the difference in the platform utilized could also be debunked.

(3) Deterrence to cyber crimes

While laws exist to prosecute certain cybercrime offenses, the Cybercrime Prevention Act of 2012 or Republic Act (RA) 10175 often provides stronger penal provisions against these crimes.

Identity theft is covered by RA 10173 or the Data Privacy Act, while credit card fraud is a violation of RA 8484 or the Access Devices Regulation Act.

Currently, apprehended online traffickers and child pornography pimps are charged with violating the following laws: RA 9208 or the Anti-Trafficking in Person Act, RA 7610 or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, and RA 9775 or the Anti-Child Pornography Act.

The cybercrime law adopts the RA 9775 definition of child pornography, but the penalty imposed is one degree higher.

Similar penal provisions are available for other cybercrime offenses. The increase in penalty can potentially increase deterrence, said Aguto.

Petitioners before the High Court, however, argue that these provisions are unconstitutional as they create “double jeopardy” – being punished more than once for the same offense.

PH cybersex industry creates pressure

Aguto said it is possible that reports on the Philippines as a global source of child pornography would be considered in determining how to proceed with the Cybercrime Prevention Act of 2012. 

Malacañang earlier said the cybercrime law will help curb the growing and alarming cash-for-cybersex scheme in the Philippines that targets mostly minors. (READ: Palace: Cybercrime law to help curb online sex abuse

The Palace vowed to “really pound the hammer” on “syndicates that will prowl on our minors.” (READ: NBI: Online sex trade cottage industry in PH). – with reports from Buena Bernal/Rappler.com

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