When the Philippines’ Anti-Cybercrime Law seemingly came out of nowhere last September 12, a lot of Filipino netizens expressed their outrage. Soon enough, even traditional journalists, lawyers, and international groups supported the rally against this law. The law went into effect in October 3, but due to the citizens’ severe reaction towards it, the Supreme Court unanimously agreed in October 9 to issue a 120-day temporary restraining order (TRO) against it. Oral argument for the case is set on January 15, 2013.
Like a lot of laws, the Anti-Cybercrime Law – the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) has an innocuous-sounding name. Who in their right mind would be against a law that aims to prevent crimes, right? And with a lot of shenanigans going in the online world, going against faceless cyber criminals seemed like a step in the right direction.
However, the devil is in the details.
Cybercrime Offenses punishable under this Act:
1. Hacking/cracking/data integrity offenses – Penalty: 6-12 years imprisonment and/or a fine of at least P200,000.00 ($5,000); if the acts are committed against critical infrastructure, 12-20 years imprisonment and/or a fine of at least P500,000.00 ($12,500)
- illegal access
- illegal interception
- data interference
- system interference
- possession, use, production, sale, procurement, importation, distribution, or making available of a device, computer program or data (e.g. password, access code) for committing a cybercrime (here, fine is up to P500,000)
2. Computer-related offenses – Penalty: 6-12 years imprisonment and/or a fine of at least P200,000.00
- forgery and use of forged products
- identity theft
3. Content-related offenses
- cybersex – Penalty: 6-12 years imprisonment and/or a fine of P200,000.00 ($5,000) – P1,000,000.00 ($25,000)
- child pornography – Penalty: one degree higher than provided in Republic Act No. 9775 (“Anti-Child Pornography Act of 2009”)
- spam – Penalty: 1-6 months imprisonment and/or a fine of P50,000.00 ($1250) – P250,000.00 ($6250)
- libel – Penalty: up to 12 years imprisonment and a fine of P200,000.00 ($5,000) – P1,000,000.00 ($25,000)
4. Other offenses – Penalty: imprisonment one degree lower than that of the penalty for the offense and/or a fine of P100,000.00 – P500,000.00
- aiding or abetting in the commission of cybercrime
- attempt in the commission of cybercrime
5. Corporate Liability — Penalty: at least double the fines up to P10,000,000.00 ($250,000)
Law enforcement authorities can collect or record real-time traffic data (communication’s origin, destination, route, time, date, size, duration, type of underlying service). Content, identities, and all other data will require a court warrant. Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the information. When computer data (e.g. a Web site) is prima facie found to violate this Act, the Department of Justice (DOJ) can restrict or block access to it. Failure to comply with orders from law enforcement authorities is punishable with six months to six years imprisonment and/or a fine of P100,000.00 for each noncompliance.
Why the Filipinos are furious and why this law needs to go away for good
The former Philippine president Ferdinand Marcos placed the nation under martial in 1972-1981. During that time, activists, journalists, and political opponents were jailed and silenced. Censorship was the norm and several human rights abuses occurred, ending with a lot of people either dead or missing until now.
For the last three decades, Filipinos have enjoyed a democratic form of government and freedom of expression. With the arrival of the Internet, the freedom-loving Filipinos had a platform. In a poor country where crime and corruption are rampant, many Filipinos consider the Internet as one of the few equalizers in life where even poor people can have a say. The libel clause in the Cybercrime Law as well as the power granted to the Department of Justice to block data access bring to mind the censorship during the Marcos regime. To many Filipino netizens, the Cybercrime Law = Digital Martial Law and is unconstitutional.
Under the Cybercrime Law, surveillance of electronic communication is allowed, as well as censorship of Web sites, blocking of cyberspace communication, and seizure of computers and data without due process of the law. Online libel can land you in jail for 12 years, while libel in more traditional media has a maximum penalty of 4 years. Double jeopardy is possible. Just liking, sharing or retweeting something libelous can get you imprisoned. The definition of libel is vague and expansive, so any netizen can be prosecuted, even for messages, posts, and comments that are already existing before the law became active. It does not matter if what you posted is true or not, if your subject thinks it’s libelous, you can be imprisoned even if you’re telling the truth. You can even land in jail if you badmouth a dead person and even if you veil your criticism through sarcasm.
The law was drafted by politicians who don’t have the technical knowledge or enough exposure to the Internet. Many of them have an online presence run by their staff. The lawmakers themselves probably go online every now and then but they are not really familiar with cyberculture and online etiquette. In fact, the comedian-turned-senator who inserted the libel clause in the bill did not see anything wrong with plagiarizing several American bloggers. When he was caught by the netizens and showered with ridicule online, instead of apologizing, he plagiarized the former US Senator Robert Kennedy then claimed that he was a victim of cyberbullying.
The Philippine National Police (PNP), one of the law enforcement agencies that will handle cybercrime cases, assured the public that it would not commit abuses when implementing the Cybercrime Law. Funny, even before the law took effect, PNP already posted these threats on their Facebook page when a guy joked about the PNP extorting money from tourists.
PNP denied owning the said page, but many don’t believe since the page has been existing since January 2011 and compared to their “official” Facebook “page”, it looks more official, has more followers, and is more frequently updated. The fake page still exists, despite the PNP now knowing about it and the confusion such a fake page could generate.
My other problems with this law
The Filipinos’ rage against this law is mostly directed towards the libel and censorship provisions. I have a problem with some of the other offenses laid out in this Act.
When it comes to hacking, I run a cyberpunk blog, so it’s obvious that I don’t consider all forms of hacking as criminal. I also want cybersex to be removed from the list of offenses. In this law, cybersex is listed separately from child pornography so it is reasonable to assume that it is meant for adults. Now, if someone is being forced to engage in cybersex, then I agree that there is a crime committed against that person. However, what the Act says about cybersex is this: “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.” Just that. To call the cybersex clause vague is an understatement.
If the cybersex is between two (or more) consenting adults and is done in a private place, why the hell is this government getting involved? As far as I know, the Philippines has no law against orgies or one-night stands, yet if you do it virtually, you can go to jail. Besides, with the vague “requirement” to commit the cybersex crime, it seems that one can get imprisoned by having cybersex with his wife or girlfriend. In a country where millions of citizens work abroad, away from their families, making cybersex between couples illegal is stupid as fuck.
Another offense that I find open to abuse is cybersquatting. The USA has the Anticybersquatting Consumer Protection Act (ACPA) but it does not prevent the fair use of trademarks or any use protected by the First Amendment, such as gripe sites (e.g. paypalsucks.com, ebaysucks.com, nodaddy.com) where consumers can post their complaints and criticisms against companies, institutions, and public figures. In the Philippine Cybercrime Law, however, because of the online libel clause, even disgruntled consumers who own such sites can land in jail.
Rich folks and corporations can also claim “cybersquatting” even though the cybersquatters have perfectly legitimate reasons for owning the domain. Remember Nissan Motor calling Nissan Computer a cybersquatter and suing it for owning nissan.com? Nissan Computer is owned by a man named Uzi Nissan who registered the domain name in 1994 — five years before folks at Nissan Motor decided that they wanted it. It didn’t matter that Uzi Nissan and his ancestors have been using the name for generations and that Uzi had used it as part of his business names even before the car company (previously called Datsun) changed its name to Nissan Motor. It didn’t matter that Nissan Motor had been at the other side of the fence in 1992, when the computer company Altima Systems Inc sued Nissan Motor for its Altima line of cars.
The role of Anonymous Philippines and other hacktivist groups
Aside from the 15 petitions filed against the Cybercrime Prevention Act, various hacker groups (PrivateX #pR.is0n3r Anonymous #Philippine Cyber Army Anonymous Philippines) went to work, defacing several government Web sites while reminding their fellow hackers to spare vital public-service ones. In a surprising twist that the government probably did not expect, netizens showed support and approval to these hackings. When media sites and Project NOAH (the government’s online map that is used during storms and typhoons) got hacked during a storm and the different hacker groups denied involvement, people saw what happened as a propaganda move by the government to discredit the hacktivists.
As a whole, the Philippines is not a litigious society. Even those who have reason to file lawsuits seek other ways or just carry grudges.
When it comes to libel, ordinary people don’t bother. It is the rich and powerful who always file libel suits. After all, they have the deep pockets and the manpower to go through those lawsuits. If you’re a poor/middle-class defendant going against a rich accuser, you’re screwed. The other party does not even have to win. The expenses, stress, and hassle of the trial will ruin you.
Various sectors have for years been clamoring to have libel decriminalized in the Philippines. It’s about time.
People have also been clamoring for the government to pass the Freedom of Information Act (FOI). The government may have to pass it due to the intense public pressure. To some people, including myself, the pending FOI is the reason why the Cybercrime Law materialized: even if the FOI gets enacted, with the severe penalty for online libel, journalists and other whistleblowers will still think long and hard before exposing any corruption they unearth.
Oral argument for the Act is set on January 15, 2013. We must all be vigilant — not just Filipinos, but all of us. The fears against SOPA/PIPA also apply here: if a democratic country passes a law that stifles freedom of its citizens, it will set a precedent for other so-called democratic countries to implement the same or even harsher laws.