Supreme Court Idol: Viruses, warrantless arrests

Oscar Franklin Tan
Quoting from a landmark decision in the US, lawyer Rodel Cruz argues, to 'torch a large segment of the Internet community' amounts to 'burning the house to roast the pig'

Oscar Franklin Tan

BREAKING NEWS: The Supreme Court postponed the second session of the Cybercrime Prevention Act of 2012 oral arguments to allow them to read the full Supreme Court Idol first! Who will be the Supreme Court idol?

The second installment covered Rep Neri Colmenares’s astounding performance, one worthy of Sen Tito Sotto.

First, he repeatedly insisted that he was not very familiar with the Internet.

Second, he repeatedly cited two of the most complex Constitutional Law doctrines but never elaborated on how they applied. In fact, he spoke without the special legal terminology of those doctrines and did not cite a single case in support.

Third, he was not always responsive. When asked by Justice Roberto Abad what in the Constitution was violated by the Cybercrime Law’s penalties, he argued the law’s policy. When Senior Associate Justice Antonio Carpio asked several questions favorable to his case, he refused to simply answer yes.

The Justices were warmed up. Carpio magnificently simplified a key portion of the argument by pointing out that even computers not connected to the Internet can give rise to cybercrimes. Abad closed off irrelevant arguments by correctly stating that the harshness of a penalty is Congress’ prerogative. Justices Diosdado Peralta and Teresita Leonardo-de Castro, former Sandiganbayan Presiding Justices both, were in their element dissecting the Cybercrime Law’s technical minutiae.

Relieving Colmenares was Rodel Cruz. For background purposes, the first “Supreme Court Idol” piece can be read here.

Moment #17: Solicitor General refuses to defend Article 19

Cruz was the clear heavyweight among the petitioners, being a former Deputy Presidential Legal Counsel. Perhaps he scared off the Solicitor General, who in a highly respectable act of candor and professionalism conceded that Article 19 of the Cybercrime Law cannot be defended. (Congress later declined to send its own lawyer to defend this provision.)

Article 19 reads: “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.”

Its breadth is revealed in the definition of “computer data:” “any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online.”

This is largely believed unconstitutional without judicial authorization for such an intrusive order. Previously, Senior Justice Carpio already highlighted that cyberlibel might be committed so long as technology – not necessarily the Internet – is used, even to print a libelous letter that is later physically mailed. The above further highlights this anomaly and how ridiculous it was for Sen Tito Sotto to insert libel into a law designed to help secure our BPOs.

The Justices did not give Cruz a free pass, however, and instructed him to continue his attack.

WINNER: The audience

Moment #18: Abad begins questions with devil’s advocate disclaimer

Justice Abad, before any questions, immediately began with a disclaimer that the Justice’s questions are meant to test arguments and do not necessarily reflect their position.

Cruz’s presentation was that good.

He primarily invoked the complex Constitutional doctrines of free speech and right against unreasonable search. He gave a textbook-perfect presentation during the very short time allotted, complete with case citations and the proper highly technical jargon. I got his drift less than a minute into his speech.

Later, Justice Leonen’s questions raised the related right to privacy and he likewise demonstrated familiarity with this complex doctrine’s technical contours.

Cruz also chose to reopen the difficult debate regarding “void for vagueness” and “overbreadth” “facial challenges” begun in Estrada v. Sandiganbayan (2001) and refought in landmark cases such as the one on the Anti-Terrorism Act.

Estrada was the former president’s challenge against the Plunder Law (passed when he was a senator), handled by Constitutional Law god UP Law Dean Pacifico Agabin. Against him on the bench were his peer celestial beings, Justice Vicente V Mendoza and then Justice Reynato Puno.

Cruz closed his opening speech by highlighting that rule of law is as essential in cyberspace as it is in the real world. Section 19, however, clearly shows how regulation should not be drawn.

He summed up: “We heard assurances that the government of the day will not exercise the powers challenged here. We cannot rest on assurances that the government will not trample on our rights even if it can.” He then pleaded that “government be told that it simply cannot.”

WINNER: Cruz

Moment #19: Cruz says that a crime in progress is the exception

Justice Abad began by asking a logical question: Can the government not stop a crime in progress on the Internet?

The Cybercrime Law “legislates the exception,” was Cruz’s excellent response that put warrantless searches and arrests in context.

Cruz’s opening speech outlined that the right against unreasonable search, which requires “neutral and impartial judicial officers” to stand between citizens and the police to guard against discriminatory enforcement “particularly by a political agent of the executive branch.”

He argued that Section 19 contains none of the safeguards mandated by the Supreme Court itself in the issuance of search warrants, especially the “particularity” requirement that a search warrant be sufficiently definite in identifying what should be taken to allow the officer carrying the search no discretion in determining what should be taken (Stonehill v. Diokno, 1967). Section 19 thus amounts to a prohibited “general warrant” issued to the Department of Justice. Finally, even without seizure, interference with the data owner’s possession of the data triggers the right against unreasonably search.

The “general warrant” is “enforceable against anyone, anywhere, with government having unbridled discretion to seize any computer data in connection with any crime,” Cruz summed up.

The DOJ has become a “roving censor in cyberspace,” he added.

Responding to Abad, Cruz cited the case Pita v. Court of Appeals (1989). There, the Manila government ordered a raid against smut in violation of a city ordinance. The Supreme Court said that a warrant should have been obtained even though the allegedly obscene materials were sold in sidewalks in plain view.

In the United States, Cruz followed up, a warrant is required to seize even domain names established as being used to distribute child pornography.

Cruz thus began with a textbook-perfect response complete with case citations.

Cruz also argued that Article 19 violates procedural due process, as data will be blocked or restricted with no notice or opportunity by the owner to defend himself.

Later, Justice Leonen argued that there is no expectation of privacy in a public comment to a blog, and it should fairly be subject to a seizure, like marijuana in public view. Cruz’s answer also applied.

WINNER: Cruz

Moment #20: Cruz rebuffs Peralta’s warrantless arrest query

Stretching Justice Abad’s point further, Justice Peralta asked, “Can you not consider Section 19 as lawful arrest without warrant?” The search, then, would be incident to a lawful arrest.

Cruz replied decisively: What is being seized is computer data, not a person.

Cruz then returned to the example of domain names seized to block a website containing child pornography. In one US sweep for child pornography, authorities inadvertently seized 84,000 unrelated domain names and had to rescind the seizure after 3 days of protests. Cruz emphasized this was supported by a federal warrant and “we shudder to think” what would happen if the DOJ is left to decide what seizures to implement.

WINNER: Cruz

Moment #21: Abad and Cruz debate whether viruses are poison

Cruz’s central point was that the data to be seized under Section 19 includes speech (given the punishment of cyberlibel and cybersex), justifying a “facial challenge” against the Cybercrime Law, as previously argued by Prof Harry Roque.

However, Cruz overstepped in a moment of overconfidence and argued unnecessarily that, “Even programs like computer viruses are actually forms of speech. They direct a computer through language.”

This surprised Justice Abad who exclaimed, “A virus is poison, right?” This would give government a legitimate right to seize the dangerous item.

Cruz tried to argue that some viruses are actually benefical, but he clearly mixed up his ideas. (A virus is clearly not protected speech because it does not convey ideas to humans; Cruz probably meant to argue the point under unreasonable search, in which context the valid use of such viruses has been discussed in the United States.)

Cruz quickly recovered.

He stated that although the law covers specific problems such as destructive viruses, it is not “narrowly tailored” to address those specific problems and unnecessarily covers even protected speech.

The tangent on viruses thus set up Cruz’s crucial “facial challenge” argument.

WINNER: Cruz (although we were worried for a minute there)

Moment #22: Cruz successfully sets up the “facial challenge”

Justice Abad’s original question was why the Court should strike down Section 19 completely when it also applied to illegal access to and interception of data, hacking, computer fraud, cybersex and child pornography. He argued that the Court can strike it down “as applied” to free expression, but allow it to remain for other purposes.

Cruz gave the petitioners’ most important response of the day.

He responded that that same question was asked in the US case Ashcroft v. American Civil Liberties Union (2004), whether there is any interpretation of the US Child Online Protection Act that would save it from unconstitutionality. The US Supreme Court ruled that “no narrowing of construction” or judicial intervention could, given how open-ended the language was.

This completed the “facial challenge” argument.

The unelected Supreme Court is constitutionally restricted to acting only in actual cases, and there is none because the Cybercrime Law is not yet being enforced. The petitioners thus had to invoke a “facial challenge,” to challenge the law despite the lack of an actual case by showing it is evidently unconstitutional in every possible situation.

Because the Philippine Supreme Court limits the “facial challenge” to free speech cases, Cruz began his presentation by arguing that Section 19 allows the restriction of speech. Given that Section 6 refers to every crime in the Philippines, the Cybercrime Law would allow the government to select content it considers criminal and block it, and stop speech before anything is said. (These refer to two of the most evil curse words in Constitutional Law, “content-based regulation” and “prior restraint.”)

“Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity, with the Government carrying a heavy burden of showing justification for the enforcement of such a restraint.” (New York Times v. United States, 1971; cited in Chavez v. Gonzalez, 2008) Cruz emphasized that the Solicitor General already conceded it could not overcome the heavy presumption of unconstitutionality.

Cruz further quoted: “Content based prohibitions enforced by severe criminal penalties have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat, the Constitution demands that content based restrictions of speech be presumed invalid, and that the Government bear the burden of showing their unconstitutionality.” (Ashcroft v. American Civil Liberties Union, 2004)

Cruz said that to “torch a large segment of the Internet community” of the Internet, amounts to “burning the house to roast the pig,” quoting the landmark decision Reno v. American Civil Liberties Union (1997).

Finally, Cruz quoted David v. Arroyo (2006): “It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey.”

This, he stated, was a Court pronouncement during the “exigent circumstance” when President Gloria Macapagal-Arroyo was accused of declaring virtual martial law, and such pronouncements were likewise made by the martial law Court. Such admonitions are all the more valid during ordinary times, he ended his opening speech.

Roque earlier discussed the “facial challenge” but with less emphasis, in part due to his diversion to international law. Colmenares simply failed to reply when questioned by Justice Leonen.

Again, without the “facial challenge,” the petitioners’ entire case falls apart.

Another textbook-perfect response from Cruz.

WINNER: Cruz

Moment #23: Leonen refuses to hear Constitutional Commission history

Justice Leonen raised the right to privacy to probe Cruz’s assertion of the right against unreasonable search. This was intelligent timing because the related right to privacy does not have the explicit warrant requirement.

Cruz properly conceded to Leonen that warrants are not always needed to interfere with reasonable expectations of privacy.

Leonen asked Cruz to focus on the one sentence that explicit mentions “privacy” in the Constitution: “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.” (Article III, Section 3)

Leonen argued that given the comma, a law may restrict privacy of communication without a warrant. Cruz disagrees and refers to the notes of Joaquin Bernas, SJ regarding the crucial “or.”

Strangely, Leonen cut him off, asking whether the Internet existed in 1986, when the Constitution was written.

(This is irrelevant because they were debating the sentence’s grammar, which is unaffected by the state of technology.

Context would be valid for other points; it is even more important in the United States where a Constitution that prohibits racial discrimination was written by slaveowners.)

After being cut off thrice, Cruz reiterated that measures to address the “compelling interests” Leonen outlined must be closely and narrowly drawn. He advocated that an exception to the general warrant requirement in a context impacting speech should be “strictly construed and should be limited only to exigent circumstances.”

Cruz returned to his opening argument regarding “narrowly tailored” regulations under “strict scrutiny.”

He argued that “strict scrutiny” is applied when a law impacts fundamental rights in pursuit of what must be a “compelling government purpose.” Such scrutiny means that the law will be upheld only when no other alternative that is less intrusive can work. The Ashcroft decision, he reiterated, struck down a law “not narrowly tailored to serve a compelling governmental interest and less restrictive alternatives were available.” He reiterated that a law perceived as content-based regulation is susceptible to this argument. For example, filters by users in their computers against offensive content are less intrusive than restrictions at the source itself.

It appeared Leonen wanted to test Cruz with the narrow privacy of communication provision – Section 19 involves blocking or restricting data, not revealing private communication – but Cruz had a serviceable answer to confront the point instead of steering the discussion back to more relevant privacy contexts.

WINNER: Cruz

Moment #24: Cruz argues that no interpration of “prima facie” works

Justice Leonen then argued that “prima facie” in Section 19 has not yet been interpreted in the Court and it is not clear that it will not be a court determining this. Cruz responds that “prima facie” has been interpreted in jurisprudence and his reading is that the DOJ will make the determination.

In a minor benchslap, Leonen states this is only his opinion and the Court has an opportunity to interpret the law.

Cruz opines that no matter how narrowly the Court construes “prima facie,” the law will not survive constitutional muster.

Leonen again tells him that is only his opinion and to address the point in his memorandum.

Then, appearing to take off his evil law professor mask, he echoes Justice Abad’s disclaimer that the Justices’ questions do not necessarily reflect their positions.

WINNER: Cruz

Moment #25: Leonen finally stumps Cruz with moving cars

Justice Leonen almost sounded like he wanted to see how far Cruz could go, and finally got him with moving cars.

Leonen reiterated that the right against unreasonable search necessarily allows reasonable search, and asked:

“If this court has given exceptions to moving vehicles, can it not give exceptions to moving packets of data?”

Cruz said he hoped not, because “the distinction lies with speech,” falling back on his position that the Court should be stricter when speech is involved (although Leonen’s question dealt with unreasonable search).

It was a difficult analogy to address because it is not a clear one. The exception for moving vehicles arises because a vehicle moves around and may no longer be in the place it is sighted once policemen return with a warrant. The machines containing or transmitting packets of data are not so mobile.

WINNER: Leonen

Moment #26: Cruz argues privacy of e-mails

Cruz, answering Justice Leonen, stated that there is no fair expectation for a public blog comment or a Twitter post.

E-mail, Leonen argued, is different because an administrator can always access it and it is akin to sending a postcard, not a letter. There is “no email that is fundamentally secure,” Leonen stated.

Cruz thought for a moment and disagreed because this is not how ordinary people perceive e-mail. He proposed, for example, that the use of passwords reflects an intent to keep e-mails private.

Cruz correctly argued along the lines of expectations of privacy decisions, and at least one US court agrees with his impromptu approach.

WINNER: Cruz

Moment #27: Cruz gets the last patriotic sound bite

Justice Leonen asked whether the landmark US Internet speech case Reno v. Amerian Civil Liberties Union is binding on Philippine courts.

Cruz correctly pointed out that although US decisions are not binding, they are considered highly persuasive because our Constitutional tradition was inherited from the United States and, further, Internet technology originated from there.

Leonen protested: “The last I heard, we are already sovereign from the United States.”

It appeared that Leonen wanted to make the point for the record, as he also did while questioning Roque.

Cruz got the last sound bite, however.

Leonen: “Perhaps there should be a preference for Filipino jurisprudence.”

Cruz: “And we hope that [such jurisprudence] will come out of this case, your Honor.”

WINNER: Cruz

Moment #28: Cruz walks through the DOJ’s snooping process

Justice Leonardo-de Castro asked Cruz to walk through the DOJ’s process as it was unclear what would trigger the determination of prima facie evidence in Section 19.

Cruz cited a DOJ presentation that Section 19 was misplaced and supposed to come after Sections 13 to 17. He argued one should look at the text of the law as passed.

Cruz then outlined that following Sections 13 to 17, ISPs are required to preserve traffic, subscriber and content data. A law enforcer may apply for a search warrant, obtain data from an ISP and examine it, then turn it over to the court that issued the warrant. Cruz criticized, for example, how law enforcers are tasked with destroying data not to be used as evidence and appear to have control over it, even though a judge is involved.

Leonardo-de Castro pointed out it is unlike situations where a law enforcer sees an actual crime is committed. She asked, “How will a DOJ official find this data if he is not allowed to snoop around?”

Cruz stated that in reality, information is seized first then searched and mined, pursuant to a warrant. Information obtained such as traffic data could then be used to establish probable cause for a crime, which he considered putting the cart before the horse.

Justice Leonardo-de Castro concluded that Section 19 is not specific regarding the prima facie determination.

BONUS: Leonen breaks out the floppy disks

Justice Leonen argued that there was no Internet in 1986 so the deliberations of the Constitutional Commission are irrelevant when interpreting the Constitution in Internet cases.

Leonen: “Back in 1986, the computer that was available was an XT or an AT. You were advanced if you had an AT computer, correct?”

Cruz: “Yes Your Honor.”

Leonen: “This is our generation, right?”

Cruz: “Glad to be a part of it, your Honor.”

Leonen: “So we know very clearly that we still had to use floppy disks to transfer data, not wires, correct?”

Cruz: “Yes, your Honor, from Greenhills.”

Leonen: “Which of course still exist in the Supreme Court. We still have floppy disks here.”

Cruz: “I’m sad to hear that your Honor.”

Leonen: “No, only for purposes of reference.” – Rappler.com


Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches Constitutional Law in the University of the East. His article, “The Complete Philippine Right to Privacy (82(4) Phil. L.J. 78, 131 (2008))” outlines the breadth of Philippine “public figure” doctrine. He spoke at his Harvard Law School graduation, chaired the Philippine Law Journal, and holds the University of the Philippines record for legal writing awards won (including one for Internet libel and another for Internet jurisdiction.)

 

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