Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
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G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
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G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
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G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
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G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
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G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
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G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.
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G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.
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G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.
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G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, Respondents.
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G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.
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G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National Police, Respondents.
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G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
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G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
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G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.
CONCURRING AND DISSENTING OPINION
SERENO, J.:
The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.
Justice Isagani A. Cruz1
When the two other branches of government transgress their inherent powers, often out of a well-intentioned zeal that causes an imbalance between authority and liberty, it is the Court’s solemn duty to restore the delicate balance that has been upset. This is the difficult task before us now, involving as it does our power of judicial review over acts of a coequal branch.
The task is complicated by the context in which this task is to be discharged: a rapidly evolving information and communications technology, which has been an enormous force for good as well as for evil. Moreover, the Court is forced to grapple with the challenge of applying, to the illimitable cyberspace, legal doctrines that have heretofore been applied only to finite physical space. Fortunately, we have the Constitution as our North Star as we try to navigate carefully the uncharted terrain of cyberspace as the arena of the conflict between fundamental rights and law enforcement.
I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime Prevention Act on the real-time collection of traffic data and Section 19 on the restriction or blocking of access to computer data. I also adopt the ponencia’s discussion of Sections 12 and 19. I write this Separate
Opinion, however, to explain further why real-time collection of traffic data may be indispensable in certain cases, as well as to explain how the nature of traffic data per se undercuts any expectation of privacy in them.
I also concur with the ponencia’s partial invalidation of Section 4(c)(4) on libel insofar as it purports to create criminal liability on the part of persons who receive a libelous post and merely react to it; and of Section 7, in so far as it applies to libel.
However, I dissent from the ponencia’s upholding of Section 6 as not unconstitutional in all its applications. I find Section 6 to be unconstitutional insofar as it applies to cyberlibel because of its "chilling effect." Hence, I am writing this Separate Opinion also to explain my dissent on this issue.
I find the rest of the constitutional challenges not proper for a pre-enforcement judicial review and therefore dismissible.
I.
THIS COURT MAY EMPLOY A PRE-ENFORCEMENT
JUDICIAL REVIEW OF THE CYBERCRIME PREVENTION ACT.
As distinguished from the general notion of judicial power, the power of judicial review especially refers to both the authority and the duty of this Court to determine whether a branch or an instrumentality of government has acted beyond the scope of the latter’s constitutional powers.2 It includes the power to resolve cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.3 This power, first verbalized in the seminal case Marbury v. Madison,4 has been exercised by the Philippine Supreme Court since 1902.5 The 1936 case Angara v. Electoral Commission exhaustively discussed the concept as follows:6
The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.
x x x x
As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution, extending its coverage to the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.7 The expansion made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."8 Thus, aside from the test of constitutionality, this Court has been expressly granted the power and the duty to examine whether the exercise of discretion in those areas that are considered political questions was attended with grave abuse.9
This moderating power of the Court, however, must be exercised carefully, and only if it cannot be feasibly avoided, as it involves the delicate exercise of pronouncing an act of a branch or an instrumentality of government unconstitutional, at the risk of supplanting the wisdom of the constitutionally appointed actor with that of the judiciary.10 It cannot be overemphasized that our Constitution was so incisively designed that the different branches of government were made the respective experts in their constitutionally assigned spheres.11 Hence, even as the Court dutifully exercises its power of judicial review to check – in this case, the legislature – it must abide by the strict requirements of its exercise under the Constitution. Indeed, "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people."12
Demetria v. Alba13 and Francisco v. House of Representatives14 cite the "seven pillars" of the limitations of the power of judicial review, enunciated in the concurring opinion of U.S. Supreme Court Justice Louis Brandeis in Ashwander v. Tennessee Valley Authority15 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." x x x.
2. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." x x x. "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."
3. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." x x x.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
x x x.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. x x x. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. x x x.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. x x x.
7. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." (Citations omitted, emphases supplied)
These are specific safeguards laid down by the Court when it exercises its power of judicial review. Thus, as a threshold condition, the power of judicial review may be invoked only when the following four stringent requirements are satisfied: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.16
Specifically focusing on the first requisite, it necessitates that there be an existing case or controversy that is appropriate or ripe for determination as opposed to a case that is merely conjectural or anticipatory.17 The case must involve a definite and concrete issue concerning real parties with conflicting legal rights and opposing legal claims, admitting of a specific relief through a decree conclusive in nature.18 The "ripeness" for adjudication of the controversy is generally treated in terms of actual injury to the plaintiff.19 Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. The case should not equate with a mere request for an opinion or an advice on what the law would be upon an abstract, hypothetical, or contingent state of facts.20 As explained in Angara v. Electoral Commission:21
[The] power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Emphases supplied)
According to one of the most respected authorities in American constitutional law, Professor Paul A. Freund, the actual case or controversy requirement is a crucial restraint on the power of unelected judges to set aside the acts of the people’s representative to Congress.22 Furthermore, he explains:23
The rules of "case and controversy" can be seen as the necessary corollary of this vast power – necessary for its wise exercise and its popular acceptance. By declining to give advisory opinions, the Court refrains from intrusion into the lawmaking process. By requiring a concrete case with litigants adversely affected, the Court helps itself to avoid premature, abstract, ill-informed judgments. By placing a decision on a non-constitutional ground whenever possible, the Court gives the legislature an opportunity for sober second thought, an opportunity to amend the statue to obviate the constitutional question, a chance to exercise that spirit of self-scrutiny and self-correction which is the essence of a successful democratic system. (Emphases supplied)
While the actual controversy requirement has been largely interpreted in the light of the implications of the assailed law vis-à-vis the legally demandable rights of real parties and the direct injury caused by the assailed law, we have also exceptionally recognized the possibility of lodging a constitutional challenge sans a pending case involving a directly injured party. In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,24 we conceded the possibility of a pre-enforcement judicial review of a penal statute, so long as there is a real and credible threat of prosecution involving the exercise of a constitutionally protected conduct or activity.25 We noted that the petitioners therein should not be required to expose themselves to criminal prosecution before they could assail the constitutionality of a statute, especially in the face of an imminent and credible threat of prosecution.26
On 5 February 2013, this Court extended indefinitely the temporary restraining order enjoining the government from implementing and enforcing the Cybercrime Prevention Act of 2012. As the assailed law is yet to be enforced, I believe that in order to give due course to the Petitions, we would have to test their qualification for pre-enforcement judicial review of the assailed law and its provisions.
In discussing the requirements of a pre-enforcement judicial review, we refer to our ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial review of the assailed provisions of the Human Security Act of 2007, because petitioners failed to show that the law forbade them from exercising or performing a constitutionally protected conduct or activity that they sought to do. We also explained that the obscure and speculative claims of the petitioners therein that they were being subjected to sporadic "surveillance" and tagged as "communist fronts" were insufficient to reach the level of a credible threat of prosecution that would satisfy the actual-controversy requirement. Thus, from the facts they had shown, we ruled that the Court was merely "being lured to render an advisory opinion, which [was] not its function."27
We then drew a distinction between the facts in Southern Hemisphere and those in Holder v. Humanitarian Law Project, a case decided by the United States Supreme Court. We noted that in Holder, a pre-enforcement judicial review of the assailed criminal statue was entertained because the plaintiffs therein had successfully established that there was a genuine threat of imminent prosecution against them, thereby satisfying the actual-controversy requirement. The case concerned a new law prohibiting the grant of material support or resources to certain foreign organizations engaged in terrorist activities. Plaintiffs showed that they had been providing material support to those declared as foreign terrorist organizations; and that, should they continue to provide support, there would be a credible threat of prosecution against them pursuant to the new law. The plaintiffs therein insisted that they only sought to facilitate the lawful, nonviolent purposes of those groups – such as the latter’s political and humanitarian activities – and that the material-support law would prevent the plaintiffs from carrying out their rights to free speech and to association. Based on the foregoing considerations, the U.S. Supreme Court concluded that the claims of the plaintiffs were suitable for judicial review, as there was a justiciable case or controversy.
We may thus cull from the foregoing cases that an anticipatory petition assailing the constitutionality of a criminal statute that is yet to be enforced may be exceptionally given due course by this Court when the following circumstances are shown: (a) the challenged law or provision forbids a constitutionally protected conduct or activity that a petitioner seeks to do; (b) a realistic, imminent, and credible threat or danger of sustaining a direct injury or facing prosecution awaits the petitioner should the prohibited conduct or activity be carried out; and
(c) the factual circumstances surrounding the prohibited conduct or activity sought to be carried out are real, not hypothetical and speculative, and are sufficiently alleged and proven.28 It is only when these minimum conditions are satisfied can there be a finding of a justiciable case or actual controversy worthy of this Court’s dutiful attention and exercise of pre-enforcement judicial review. Furthermore, since the issue of the propriety of resorting to a pre-enforcement judicial review is subsumed under the threshold requirement of actual case or controversy, we need not go through the merits at this stage. Instead, the determination of whether or not to exercise this power must hinge solely on the allegations in the petition, regardless of the petitioner’s entitlement to the claims asserted.
A review of the petitions before us shows that, save for the Disini Petition,29 all petitions herein have failed to establish that their claims call for this Court’s exercise of its power of pre-enforcement judicial review.
Petitioners allege that they are users of various information and communications technologies (ICT) as media practitioners, journalists, lawyers, businesspersons, writers, students, Internet and social media users, and duly elected legislators. However, except for the Petition of Disini, none of the other petitioners have been able to show that they are facing an imminent and credible threat of prosecution or danger of sustaining a direct injury. Neither have they established any real, factual circumstances in which they are at risk of direct injury or prosecution, should those acts continue to be carried out.
They have simply posed hypothetical doomsday scenarios and speculative situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of digital and personal information by the government; or a wanton taking down of legitimate websites.30 Others have made outright legal queries on how the law would be implemented in various circumstances, such as when a person disseminates, shares, affirms, "likes," "retweets," or comments on a potentially libelous article.31 A considerable number of them have merely raised legal conclusions on the implication of the new law, positing that the law would per se prevent them from freely expressing their views or comments on intense national issues involving public officials and their official acts.32 While these are legitimate concerns of the public, giving in to these requests for advisory opinion would amount to an exercise of the very same function withheld from this Court by the actual controversy requirement entrenched in Section 1, Article III of our Constitution.
The Petition of Disini is the only pleading before the Court that seems to come close to the actual-controversy requirement under the Constitution. What sets the Petition apart is that it does not merely allege that petitioners therein are ICT users who have posted articles and blogs on the Internet. The Petition also cites particular blogs or online articles of one of the petitioners who was critical of a particular legislator.33 Furthermore, it refers to a newspaper article that reported the legislator’s intent to sue under the new law, once it takes effect. The pertinent portion of the Petition reads:34
5. Petitioners are all users of the Internet and social media. Petitioner Ernesto Sonido, Jr. ("Petitioner Sonido"), in particular, maintains the blog "Baratillo Pamphlet" over the Internet.
6. On August 22, 2012 and September 7, 2012, Petitioner Sonido posted 2 blogs entitled "Sotto Voce: Speaking with Emphasis" and "Sotto and Lessons on Social Media" in which he expressed his opinions regarding Senator Vicente "Tito" Sotto III’s ("Senator Sotto") alleged plagiarism of online materials for use in his speech against the Reproductive Health Bill.
7. On August 30, 2012, Senator Sotto disclosed that the Cybercrime Bill was already approved by the Senate and the House of Representatives and was merely awaiting the President’s signature. He then warned his critics that once signed into law, the Cybercrime Bill will penalize defamatory statements made online. To quote Senator Sotto:
"Walang ginawa yan [internet users] umaga, hapon, nakaharap sa computer, target nuon anything about the [Reproductive Health] Bill. Ganun ang strategy nun and unfortunately, di panapipirmahan ang Cybercrime bill. Pwede na sana sila tanungin sa pagmumura at pagsasabi ng di maganda. Sa Cybercrime bill, magkakaroon ng accountability sa kanilang pinagsasabi, penalties na haharapin, same penalties as legitimate journalists, anything that involves the internet," he said.
8. The threat of criminal prosecution that was issued by Senator Sotto affected not only bloggers like Petitioner Sonido but all users of the Internet and social media as the other Petitioners herein who utilize online resources to post comments and express their opinions about social issues.
9. The President finally signed the Cybercrime Act into law on September 12, 2012.
10. With the passage of the Cybercrime Act, the threat that was issued by Senator Sotto against his online critics has become real. (Emphases and italics supplied)
The Petition of Disini appears to allege sufficient facts to show a realistic, imminent, and credible danger that at least one of its petitioners may sustain a direct injury should respondents proceed to carry out the prohibited conduct or activity. First, there was a citation not only of a particular blog, but also of two potentially libelous entries in the blog. Second, the plausibly libelous nature of the articles was specifically described. Third, the subject of the articles, Senator Vicente Sotto III, was alleged to have made threats of using the assailed statute to sue those who had written unfavorably about him; a verbatim quote of the legislator’s threat was reproduced in the Petition. Fourth, the person potentially libeled is a nationally elected legislator.
This combination of factual allegations seems to successfully paint a realistic possibility of criminal prosecution under Section 4(c)(4) of a specific person under the assailed law. Consequently, there is now also a possibility of the writer being penalized under Section 6, which raises the penalty for crimes such as libel by one degree when committed through ICT. The alleged facts would also open the possibility of his being charged twice under Section 4(c)(4) and
Article 353 of the Revised Penal Code by virtue of Section 7. Furthermore, since he might become a suspect in the crime of libel, his online activities might be in danger of being investigated online by virtue of Section 12 or his access to computer data might be restricted under Section 19.
Therefore, it is submitted that the Court must limit its discussion of the substantive merits of the cases to the Petition of Disini, at the most and only on the provisions questioned therein.
II.
PARTICULAR PROVISIONS OF THE CYBERCRIME
PREVENTION ACT MAY BE FACIALY INVALIDATED.
A facial challenge refers to the call for the scrutiny of an entire law or provision by identifying its flaws or defects, not only on the basis of its actual operation on the attendant facts raised by the parties, but also on the assumption or prediction that the very existence of the law or provision is repugnant to the Constitution.35 This kind of challenge has the effect of totally annulling the assailed law or provision, which is deemed to be unconstitutional per se. The challenge is resorted to by courts, especially when there is no instance to which the law or provision can be validly applied.36
In a way, a facial challenge is a deviation from the general rule that Courts should only decide the invalidity of a law "as applied" to the actual, attending circumstances before it.37 An as-applied challenge refers to the localized invalidation of a law or provision, limited by the factual milieu established in a case involving real litigants who are actually before the Court.38 This kind of challenge is more in keeping with the established canon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."39 Should the petition prosper, the unconstitutional aspects of the law will be carved away by invalidating its improper applications on a case-to-case basis.40 For example, in Ebralinag v. Division of Superintendent of Schools of Cebu,41 the Court exempted petitioner-members of the religious group Jehovah’s Witness from the application of the Compulsory Flag Ceremony in Educational Institutions Act on account of their religious beliefs. The Court ruled that the law requiring them to salute the flag, sing the national anthem, and recite the patriotic pledge cannot be enforced against them at the risk of expulsion, because the law violated their freedom of religious expression. In effect, the law was deemed unconstitutional insofar as their religious beliefs were concerned.
Because of its effect as a total nullification, the facial invalidation of laws is deemed to be a "manifestly strong medicine" that must be used sparingly and only as a last resort.42 The general disfavor towards it is primarily due to the "combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes."43
Claims of facial invalidity "raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.’"44
A. Section 6 – Increase of Penalty by One Degree
Section 6 was worded to apply to all existing penal laws in this jurisdiction. Due to the sheer extensiveness of the applicability of this provision, I believe it unwise to issue a wholesale facial invalidation thereof, especially because of the insufficiency of the facts that would allow the Court to make a conclusion that the provision has no valid application.
Alternatively, the discussion can be limited to the allegations raised in the Petition of Disini concerning the right to free speech. The Petition asserts that Section 6 (on the increase of penalty by one degree), in conjunction with the provision on cyberlibel, has the combined chilling effect of curtailing the right to free speech. The Petition posits that the law "imposes heavier penalties for online libel than paper-based libel" in that the imposable penalty for online libel is now increased from prisión correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months) to prisión mayor in its minimum and medium periods (6 years and 1 day to 10 years).45
The ponencia correctly holds that libel is not a constitutionally protected conduct. It is also correct in holding that, generally, penal statutes cannot be invalidated on the ground that they produce a "chilling effect," since by their very nature, they are intended to have an in terrorem effect (benign chilling effect)46 to prevent a repetition of the offense and to deter criminality.47 The "chilling effect" is therefore equated with and justified by the intended in terrorem effect of penal provisions.
This does not mean, however, that the Constitution gives Congress the carte blanche power to indiscriminately impose and increase penalties. While the determination of the severity of a penalty is a prerogative of the legislature, when laws and penalties affect free speech, it is beyond question that the Court may exercise its power of judicial review to determine whether there has been a grave abuse of discretion in imposing or increasing the penalty. The Constitution’s command is clear: "No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." Thus, when Congress enacts a penal law affecting free speech and accordingly imposes a penalty that is so discouraging that it effectively creates an invidious chilling effect, thus impeding the exercise of speech and expression altogether, then there is a ground to invalidate the law. In this instance, it will be seen that the penalty provided has gone beyond the in terrorem effect needed to deter crimes and has thus reached the point of encroachment upon a preferred constitutional right. I thus vote to facially invalidate Section 6 insofar as it applies to the crime of libel.
As will be demonstrated below, the confluence of the effects of the increase in penalty under this seemingly innocuous provision, insofar as it is applied to libel, will practically result in chilling the right of the people to free speech and expression.
Section 6 creates an additional in terrorem effect on top of that already created by Article 355 of the Revised Penal Code
The basic postulate of the classical penal system on which our Revised Penal Code is based is that humans are rational and calculating beings who guide their actions by the principles of pleasure and pain.48 They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible gain or advantage in committing the crime.49 This consequence is what is referred to as the in terrorem effect sought to be created by the Revised Penal Code in order to deter the commission of a crime.50 Hence, in the exercise of the people’s freedom of speech, they carefully decide whether to risk publishing materials that are potentially libelous by weighing the severity of the punishment − if and when the speech turns out to be libelous − against the fulfillment and the benefits to be gained by them.
Our Revised Penal Code increases the imposable penalty when there are attending circumstances showing a greater perversity or an unusual criminality in the commission of a felony.51 The intensified punishment for these so-called aggravating circumstances is grounded on various reasons, which may be categorized into (1) the motivating power itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or (5) the personal circumstances of the offender or of the offended party.52 Based on the aforementioned basic postulate of the classical penal system, this is an additional in terrorem effect created by the Revised Penal Code, which targets the deterrence of a resort to greater perversity or to an unusual criminality in the commission of a felony.
Section 4(c)(4) of the Cybercrime Prevention Act expressly amended Article 355 of the Revised Penal Code, thereby clarifying that the use of a "computer system or any other similar means" is a way of committing libel. On the other hand, Section 6 of the Cybercrime Prevention Act introduces a qualifying aggravating circumstance, which reads:
SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. (Emphases supplied)
A perfunctory application of the aforementioned sections would thus suggest the amendment of the provision on libel in the Revised Penal Code, which now appears to contain a graduated scale of penalties as follows:
ARTICLE 355. Libel by Means Writings or Similar Means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prisión correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
[Libel committed by, through and with the use of a computer system or any other similar means which may be devised in the future shall be punished by53 prisión correccional in its maximum period to prisión mayor in its minimum period]. (Emphases supplied)
Section 6 effectively creates an additional in terrorem effect by introducing a qualifying aggravating circumstance: the use of ICT. This additional burden is on top of that already placed on the crimes themselves, since the in terrorem effect of the latter is already achieved through the original penalties imposed by the Revised Penal Code. Consequently, another consideration is added to the calculation of penalties by the public. It will now have to weigh not only whether to exercise freedom of speech, but also whether to exercise this freedom through ICT.
One begins to see at this point how the exercise of freedom of speech is clearly burdened. The Court can take judicial notice of the fact that ICTs are fast becoming the most widely used and accessible means of communication and of expression. Educational institutions encourage the study of ICT and the acquisition of the corresponding skills. Businesses, government institutions and civil society organizations rely so heavily on ICT that it is no exaggeration to say that, without it, their operations may grind to a halt. News organizations are increasingly shifting to online publications, too. The introduction of social networking sites has increased public participation in socially and politically relevant issues. In a way, the Internet has been transformed into "freedom parks." Because of the inextricability of ICT from modern life and the exercise of free speech and expression, I am of the opinion that the increase in penalty per se effectively chills a significant amount of the exercise of this preferred constitutional right.
The chill does not stop there. As will be discussed below, this increase in penalty has a domino effect on other provisions in the Revised Penal Code thereby further affecting the public’s calculation of whether or not to exercise freedom of speech. It is certainly disconcerting that these effects, in combination with the increase in penalty per se, clearly operate to tilt the scale heavily against the exercise of freedom of speech.
The increase in penalty also results in the imposition of harsher accessory penalties.
Under the Revised Penal Code, there are accessory penalties that are inherent in certain principal penalties. Article 42 thereof provides that the principal (afflictive) penalty of prisión mayor carries with it the accessory penalty of temporary absolute disqualification. According to Article 30, this accessory penalty shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all right to retirement pay or other pension for any office formerly held. (Emphases supplied)
Furthermore, the accessory penalty of perpetual special disqualification from the right of suffrage shall be meted out to the offender. Pursuant to Article 32, this penalty means that the offender shall be perpetually deprived of the right (a) to vote in any popular election for any public office; (b) to be elected to that office; and (c) to hold any public office.54 This perpetual special disqualification will only be wiped out if expressly remitted in a pardon.
On the other hand, Article 43 provides that when the principal (correctional) penalty of prisión correccional is meted out, the offender shall also suffer the accessory penalty of suspension from public office and from the right to follow a profession or calling during the term of the sentence. While the aforementioned principal penalty may carry with it the accessory penalty of perpetual special disqualification from the right of suffrage, it will only be imposed upon the offender if the duration of imprisonment exceeds 18 months.
Before the Cybercrime Prevention Act, the imposable penalty for libel under Art. 355 of the Revised Penal Code, even if committed by means of ICT, is prisión correccional in its minimum and medium periods. Under Section 6 of the Cybercrime Prevention Act, the imposable penalty for libel qualified by ICT is now increased to prisión correccional in its maximum period to prisión mayor in its minimum period.55 Consequently, it is now possible for the above-enumerated harsher accessory penalties for prisión mayor to attach depending on the presence of mitigating circumstances.
Hence, the public will now have to factor this change into their calculations, which will further burden the exercise of freedom of speech through ICT.
The increase in penalty neutralizes the full benefits of the law on probation, effectively threatening the public with the guaranteed imposition of imprisonment and the accessory penalties thereof.
Probation56 is a special privilege granted by the State to penitent, qualified offenders who immediately admit to their liability and thus renounce the right to appeal. In view of their acceptance of their fate and willingness to be reformed, the State affords them a chance to avoid the stigma of an incarceration record by making them undergo rehabilitation outside prison.
Section 9 of Presidential Decree No. (P.D.) 968, as amended – otherwise known as the Probation Law – provides as follows:
Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public order;
(c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos;
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. (Emphasis supplied)
Pursuant to Article 355 of the Revised Penal Code, libel is punishable by prisión correccional in its minimum (from 6 months and 1 day to 2 years and 4 months) and medium (from 2 years, 4 months, and 1 day to 4 years and 2 months) periods. However, in the light of the increase in penalty by one degree under the Cybercrime Prevention Act, libel qualified by the use of ICT is now punishable by prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years).57 This increased penalty means that if libel is committed through the now commonly and widely used means of communication, ICT, libel becomes a non-probationable offense.
One of the features of the Probation Law is that it suspends the execution of the sentence imposed on the offender.58 In Moreno v. Commission on Elections,59 we reiterated our discussion in Baclayon v. Mutia60 and explained the effect of the suspension as follows:
In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prisión correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. (Emphases supplied)
It is not unthinkable that some people may risk a conviction for libel, considering that they may avail themselves of the privilege of probation for the sake of exercising their cherished freedom to speak and to express themselves. But when this seemingly neutral technology is made a qualifying aggravating circumstance to a point that a guaranteed imprisonment would ensue, it is clear that the in terrrorem effect of libel is further magnified, reaching the level of an invidious chilling effect. The public may be forced to forego their prized constitutional right to free speech and expression in the face of as much as eight years of imprisonment, like the sword of Damocles hanging over their heads.
Furthermore, it should be noted that one of the effects of probation is the suspension not only of the penalty of imprisonment, but also of the accessory penalties attached thereto. Hence, in addition to the in terrorem effect supplied by the criminalization of a socially intolerable conduct and the in terrorem effect of an increase in the duration of imprisonment in case of the presence of an aggravating circumstance, the Revised Penal Code threatens further61 by attaching accessory penalties to the principal penalties.
Section 6 increases the prescription periods for the crime of cyberlibel and its penalty to 15 years.
Crimes and their penalties prescribe. The prescription of a crime refers to the loss or waiver by the State of its right to prosecute an act prohibited and punished by law.62 It commences from the day on which the crime is discovered by the offended party, the authorities or their agents.63 On the other hand, the prescription of the penalty is the loss or waiver by the State of its right to punish the convict.64 It commences from the date of evasion of service after final sentence. Hence, in the prescription of crimes, it is the penalty prescribed by law that is considered; in the prescription of penalties, it is the penalty imposed.65
By setting a prescription period for crimes, the State by an act of grace surrenders its right to prosecute and declares the offense as no longer subject to prosecution after a certain period.66 It is an amnesty that casts the offense into oblivion and declares that the offenders are now at liberty to return home and freely resume their activities as citizens.67 They may now rest from having to preserve the proofs of their innocence, because the proofs of their guilt have been blotted out.68
The Revised Penal Code sets prescription periods for crimes according to the following classification of their penalties:
ARTICLE 90. Prescription of Crimes. — Crimes punishable by death, reclusión perpetua or reclusión temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The offenses of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article. (Emphases supplied)
On the other hand, Article 92 on the prescription of penalties states:
ARTICLE 92. When and How Penalties Prescribe. — The penalties imposed by final sentence prescribe as follows:
1. Death and reclusión perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year. (Emphases supplied)
As seen above, before the passage of the Cybercrime Prevention Act, the state effectively waives its right to prosecute crimes involving libel. Notably, the prescription period for libel used to be two years, but was reduced to one year through Republic Act No. 4661 on 18 June 1966.69 Although the law itself does not state the reason behind the reduction, we can surmise that it was made in recognition of the harshness of the previous period, another act of grace by the State.
With the increase of penalty by one degree pursuant to Section 6 of the Cybercrime Prevention Act, however, the penalty for libel through ICT becomes afflictive under Article 25 of the Revised Penal Code. Accordingly, under the above-quoted provision, the crime of libel through ICT shall now possibly prescribe in 15 years − a 15-fold increase in the prescription period.70 In effect, the State’s grant of amnesty to the offender will now be delayed by 14 years more. Until a definite ruling from this Court in a proper case is made, there is uncertainty as to whether the one-year prescription period for ordinary libel will also apply to libel through ICT.
Similarly, under Article 92, the prescription period for the penalty of libel through ICT is also increased from 10 years – the prescription period for correctional penalties – to 15 years, the prescription for afflictive penalties other than reclusión perpetua.
These twin increases in both the prescription period for the crime of libel through ICT and in that for its penalty are additional factors in the public’s rational calculation of whether or not to exercise their freedom of speech and whether to exercise that freedom through ICT. Obviously, the increased prescription periods − yet again − tilt the scales, heavily against the exercise of this freedom.
Regrettably, the records of the Bicameral Conference Committee deliberation do not show that the legislators took into careful consideration this domino effect that, when taken as a whole, clearly discourages the exercise of free speech. This, despite the fact that the records of the committee deliberations show that the legislators became aware of the need to carefully craft the application of the one-degree increase in penalty and "to review again the Revised Penal Code and see what ought to be punished, if committed through the computer." But against their better judgment, they proceeded to make an all-encompassing application of the increased penalty sans any careful study, as the proceedings show:
THE CHAIRMAN (REP. TINGA). With regard to some of these offenses, the reason why they were not included in the House version initially is that, the assumption that the acts committed that would make it illegal in the real world would also be illegal in the cyberworld, ‘no.
For example, libel po. When we discussed this again with the Department of Justice, it was their suggestion to include an all-encompassing paragraph...
THE CHAIRMAN (SEN. ANGARA). (Off-mike) A catch all–
THE CHAIRMAN (SEN. TINGA). ...a catch all, wherein all crimes defined and penalized by the Revised Penal Code as amended and special criminal laws committed by, through, and with the use of information and communications technology shall be covered by the relevant provisions of this act. By so doing, Mr. Chairman, we are saying that if we missed out on any of these crimes – we did not specify them, point by point – they would still be covered by this act, ‘no.
So it would be up to you, Mr. Chairman...
THE CHAIRMAN (SEN. ANGARA). Yeah.
x x x x
THE CHAIRMAN (REP. TINGA). ...do we specify this and then or do we just use an all-encompassing paragraph to cover them.
THE CHAIRMAN (SEN. ANGARA). Well, as you know, the Penal Code is really a very, very old code. In fact, it dates back to the Spanish time and we amend it through several Congresses. So like child pornography, this is a new crime, cybersex is a new crime. Libel through the use of computer system is a novel way of slandering and maligning people. So we thought that we must describe it with more details and specificity as required by the rules of the Criminal Law. We’ve got to be specific and not general in indicting a person so that he will know in advance what he is answering for. But we can still include and let-anyway, we have a separability clause, a catch all provision that you just suggested and make it number five. Any and all crimes punishable under the Revised Penal Code not heretofore enumerated above but are committed through the use of computer or computer system shall also be punishable but we should match it with a penalty schedule as well.
So we’ve got to review. Mukhang mahirap gawin yun, huh. We have to review again the Revised Penal Code and see what ought to be punished, if committed through the computer. Then we’ve got to review the penalty, huh.
THE CHAIRMAN (REP. TINGA). I agree, Mr. Chairman, that you are defining the newer crimes. But I also agree as was suggested earlier that there should be an all-encompassing phrase to cover these crimes in the Penal Code, ‘no. Can that not be matched with a penalty clause that would cover it as well? Instead of us going line by line through the–
THE CHAIRMAN (SEN. ANGARA). So you may just have to do that by a reference. The same penalty imposed under the Revised Penal Code shall be imposed on these crimes committed through computer or computer systems.
x x x x
THE CHAIRMAN (REP. TINGA). Okay.
And may we recommend, Mr. Chairman, that your definition of the penalty be added as well where it will be one degree higher...
THE CHAIRMAN (SEN. ANGARA). Okay.
THE CHAIRMAN (REP. TINGA). ...than the relevant penalty as prescribed in the Revised Penal Code.
So, we agree with your recommendation, Mr. Chairman.
x x x x
THE CHAIRMAN (SEN. ANGARA). Okay, provided that the penalty shall be one degree higher than that imposed under the Revised Penal Code.
Okay, so–
x x x x
REP. C. SARMIENTO. Going by that ruling, if one commits libel by email, then the penalty is going to be one degree higher...
THE CHAIRMAN (SEN. ANGARA). One degree higher.
REP. C. SARMIENTO . ...using email?
THE CHAIRMAN (SEN. ANGARA). Yes.
REP. C. SARMIENTO. As compared with libel through media or distributing letters or faxes.
THE CHAIRMAN (SEN. ANGARA). I think so, under our formulation. Thank you. (Emphases supplied)71
ICT as a qualifying aggravating circumstance cannot be offset by any mitigating circumstance.
A qualifying aggravating circumstance has the effect not only of giving the crime its proper and exclusive name, but also of placing the offender in such a situation as to deserve no other penalty than that especially prescribed for the crime.72 Hence, a qualifying aggravating circumstance increases the penalty by degrees. For instance, homicide would become murder if attended by the qualifying circumstance of treachery, thereby increasing the penalty from reclusión temporal to reclusión perpetua.73 It is unlike a generic aggravating circumstance, which increases the penalty only to the maximum period of the penalty prescribed by law, and not to an entirely higher degree.74 For instance, if the generic aggravating circumstance of dwelling or nighttime attends the killing of a person, the penalty will remain the same as that for homicide (reclusión temporal), but applied to its maximum period. Also, a generic aggravating circumstance may be offset by a generic mitigating circumstance, while a qualifying aggravating circumstance cannot be.75
Hence, before the Cybercrime Prevention Act, libel – even if committed through ICT – was punishable only by prisión correccional from its minimum (6 months and 1 day to 2 years and 4 months) to its medium period (2 years, 4 months, and 1 day to 4 years and 2 months).
Under Section 6 however, the offender is now punished with a new range of penalty – prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years). And since the use of ICT as a qualifying aggravating circumstance cannot be offset by any mitigating circumstance, such as voluntary surrender, the penalty will remain within the new range of penalties.
As previously discussed, qualifying aggravating circumstances, by themselves, produce an in terrorem effect. A twofold increase in the maximum penalty – from 4 years and 2 months to 8 years – for the use of an otherwise beneficial and commonly used means of communication undeniably creates a heavier invidious chilling effect.
The Court has the duty to restore the balance and protect the exercise of freedom of speech.
Undeniably, there may be substantial distinctions between ICT and other means of committing libel that make ICT a more efficient and accessible means of committing libel. However, it is that same efficiency and accessibility that has made ICT an inextricable part of people’s lives and an effective and widely used tool for the exercise of freedom of speech, a freedom that the Constitution protects and that this Court has a duty to uphold.
Facial challenges have been entertained when, in the judgment of the Court, the possibility that the freedom of speech may be muted and perceived grievances left to fester outweighs the harm to society that may be brought about by allowing some unprotected speech or conduct to go unpunished.76
In the present case, it is not difficult to see how the increase of the penalty under Section 6 mutes freedom of speech. It creates a domino effect that effectively subjugates the exercise of the freedom – longer prison terms, harsher accessory penalties, loss of benefits under the Probation Law, extended prescription periods, and ineligibility of these penalties to be offset by mitigating circumstances. What this Court said in People v. Godoy,77 about "mankind’s age-old observation" on capital punishment, is appropriate to the penalty in the present case: "If it is justified, it serves as a deterrent; if injudiciously imposed, it generates resentment."78 Thus, I am of the opinion that Section 6, as far as libel is concerned, is facially invalid.
B. Section 12 – Real-Time Collection of Traffic Data.
Real-time collection of traffic data may be indispensable to law enforcement in certain instances. Also, traffic data per se may be examined by law enforcers, since there is no privacy expectation in them. However, the authority given to law enforcers must be circumscribed carefully so as to safeguard the privacy of users of electronic communications. Hence, I support the ponencia in finding the first paragraph of Section 12 unconstitutional because of its failure to provide for strong safeguards against intrusive real-time collection of traffic data. I clarify, however, that this declaration should not be interpreted to mean that Congress is now prevented from going back to the drawing board in order to fix the first paragraph of Section 12. Real-time collection of traffic data is not invalid per se. There may be instances in which a warrantless real-time collection of traffic data may be allowed when robust safeguards against possible threats to privacy are provided. Nevertheless, I am of the opinion that there is a need to explain why real-time collection of traffic data may be vital at times, as well as to explain the nature of traffic data.
Indispensability of Real-time Collection of Traffic Data
In order to gain a contextual understanding of the provision under the Cybercrime Prevention Act on the real-time collection of traffic data, it is necessary to refer to the Budapest Convention on Cybercrime, which the Philippine Government requested79 to be invited to accede to in 2007. The Cybercrime Prevention Act was patterned after this convention.80
The Budapest Convention on Cybercrime is an important treaty, because it is the first and only multinational agreement on cybercrime.81 It came into force on 1 July 200482 and, to date, has been signed by 45 member states of the Council of Europe (COE), 36 of which have ratified the agreement.83 Significantly, the COE is the leading human rights organization of Europe.84 Moreover, two important non-member states or "partner countries"85 have likewise ratified it – the United States on 29 September 2006 and Japan on 3 July 2012. Australia and the Dominican Republic have also joined by accession.86
The Convention "represents a comprehensive international response to the problems of cybercrime"87 and is the product of a long process of careful expert studies and international consensus. From 1985 to 1989, the COE’s Select Committee of Experts on Computer-Related Crime debated issues before drafting Recommendation 89(9). This Recommendation stressed the need for a quick and adequate response to the cybercrime problems emerging then and noted the need for an international consensus on criminalizing specific computer-related offenses88 In 1995, the COE adopted Recommendation No. R (95)13, which detailed principles addressing search and seizure, technical surveillance, obligations to cooperate with the investigating authorities, electronic evidence, and international cooperation.89 In 1997, the new Committee of Experts on Crime in Cyberspace was created to examine, "in light of Recommendations No R (89)9 and No R (95)13," the problems of "cyberspace offenses and other substantive criminal law issues where a common approach may be necessary for international cooperation." It was also tasked with the drafting of "a binding legal instrument" to deal with these issues. The preparation leading up to the Convention entailed 27 drafts over four years.90
As mentioned earlier, the Philippines was one of the countries that requested to be invited to accede to this very important treaty in 2007, and the Cybercrime Prevention Act was patterned after the convention.91
Article 1 of the Budapest Convention on Cybercrime defines "traffic data" as follows:
d. "traffic data" means any computer data relating to a communication by means of a computer system, generated by a computer system that formed a part in the chain of communication, indicating the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.
Section 3 of the Cybercrime Prevention Act has a starkly similar definition of "traffic data":
(p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.
However, the definition in the Cybercrime Prevention Act improves on that of the Convention by clearly restricting traffic data to those that are non-content in nature. On top of that, Section 12 further restricts traffic data to exclude those that refer to the identity of persons. The provision states:
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. (Emphasis supplied)
Undoubtedly, these restrictions were made because Congress wanted to ensure the protection of the privacy of users of electronic communication. Congress must have also had in mind the 1965 Anti-Wiretapping Act, as well as the Data Privacy Act which was passed only a month before the Cybercrime Prevention Act. However, as will be shown later, the restrictive definition is not coupled with an equally restrictive procedural safeguard. This deficiency is the Achilles’ heel of the provision.
One of the obligations under the Budapest Convention on Cybercrime is for state parties to enact laws and adopt measures concerning the real-time collection of traffic data, viz:
Article 20 – Real-time collection of traffic data
1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to:
a. collect or record through the application of technical means on the territory of that Party, and
b. compel a service provider, within its existing technical capability:
i. to collect or record through the application of technical means on the territory of that Party; or
ii. to co-operate and assist the competent authorities in the collection or recording of, traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.
2. Where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to in paragraph 1.a, it may instead adopt legislative and other measures as may be necessary to ensure the real-time collection or recording of traffic data associated with specified communications transmitted in its territory, through the application of technical means on that territory.
3. Each Party shall adopt such legislative and other measures as may be necessary to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15. (Emphases supplied)
The Explanatory Report on the Budapest Convention on Cybercrime explains the ephemeral and volatile nature of traffic data, which is the reason why it has to be collected in real-time if it is to be useful in providing a crucial lead to investigations of criminality online as follows:92
29. In case of an investigation of a criminal offence committed in relation to a computer system, traffic data is needed to trace the source of a communication as a starting point for collecting further evidence or as part of the evidence of the offence. Traffic data might last only ephemerally, which makes it necessary to order its expeditious preservation. Consequently, its rapid disclosure may be necessary to discern the communication’s route in order to collect further evidence before it is deleted or to identify a suspect. The ordinary procedure for the collection and disclosure of computer data might therefore be insufficient. Moreover, the collection of this data is regarded in principle to be less intrusive since as such it doesn’t reveal the content of the communication which is regarded to be more sensitive.
x x x x
133. One of the major challenges in combating crime in the networked environment is the difficulty in identifying the perpetrator and assessing the extent and impact of the criminal act. A further problem is caused by the volatility of electronic data, which may be altered, moved or deleted in seconds. For example, a user who is in control of the data may use the computer system to erase the data that is the subject of a criminal investigation, thereby destroying the evidence. Speed and, sometimes, secrecy are often vital for the success of an investigation.
134. The Convention adapts traditional procedural measures, such as search and seizure, to the new technological environment. Additionally, new measures have been created, such as expedited preservation of data, in order to ensure that traditional measures of collection, such as search and seizure, remain effective in the volatile technological environment. As data in the new technological environment is not always static, but may be flowing in the process of communication, other traditional collection procedures relevant to telecommunications, such as real-time collection of traffic data and interception of content data, have also been adapted in order to permit the collection of electronic data that is in the process of communication. Some of these measures are set out in Council of Europe Recommendation No. R (95) 13 on problems of criminal procedural law connected with information technology.
x x x x
214. For some States, the offences established in the Convention would normally not be considered serious enough to permit interception of content data or, in some cases, even the collection of traffic data. Nevertheless, such techniques are often crucial for the investigation of some of the offences established in the Convention, such as those involving illegal access to computer systems, and distribution of viruses and child pornography. The source of the intrusion or distribution, for example, cannot be determined in some cases without real-time collection of traffic data. In some cases, the nature of the communication cannot be discovered without real-time interception of content data. These offences, by their nature or the means of transmission, involve the use of computer technologies. The use of technological means should, therefore, be permitted to investigate these offences. xxx.
x x x x
216. Often, historical traffic data may no longer be available or it may not be relevant as the intruder has changed the route of communication. Therefore, the real-time collection of traffic data is an important investigative measure. Article 20 addresses the subject of real-time collection and recording of traffic data for the purpose of specific criminal investigations or proceedings.
x x x x
218. xxx. When an illegal distribution of child pornography, illegal access to a computer system or interference with the proper functioning of the computer system or the integrity of data, is committed, particularly from a distance such as through the Internet, it is necessary and crucial to trace the route of the communications back from the victim to the perpetrator. Therefore, the ability to collect traffic data in respect of computer communications is just as, if not more, important as it is in respect of purely traditional telecommunications. This investigative technique can correlate the time, date and source and destination of the suspect’s communications with the time of the intrusions into the systems of victims, identify other victims or show links with associates.
219. Under this article, the traffic data concerned must be associated with specified communications in the territory of the Party. The specified ‘communications’ are in the plural, as traffic data in respect of several communications may need to be collected in order to determine the human source or destination (for example, in a household where several different persons have the use of the same telecommunications facilities, it may be necessary to correlate several communications with the individuals’ opportunity to use the computer system). The communications in respect of which the traffic data may be collected or recorded, however, must be specified. Thus, the Convention does not require or authorize the general or indiscriminate surveillance and collection of large amounts of traffic data. It does not authorize the situation of ‘fishing expeditions’ where criminal activities are hopefully sought to be discovered, as opposed to specific instances of criminality being investigated. The judicial or other order authorizing the collection must specify the communications to which the collection of traffic data relates.
x x x x
225. Like real-time interception of content data, real-time collection of traffic data is only effective if undertaken without the knowledge of the persons being investigated. Interception is surreptitious and must be carried out in such a manner that the communicating parties will not perceive the operation. Service providers and their employees knowing about the interception must, therefore, be under an obligation of secrecy in order for the procedure to be undertaken effectively. (Emphases supplied)
We can gather from the Explanatory Note that there are two seemingly conflicting ideas before us that require careful balancing – the fundamental rights of individuals, on the one hand, and the interests of justice (which may also involve the fundamental rights of another person) on the other. There is no doubt that privacy is vital to the existence of a democratic society and government such as ours. It is also critical to the operation of our economy. Citizens, governments, and businesses should be able to deliberate and make decisions in private, away from the inhibiting spotlight.93 Certainly, this privacy should be maintained in the electronic context as social, governmental and economic transactions are made in this setting.94 At the same time however, law enforcers must be equipped with up-to-date tools necessary to protect society and the economy from criminals who have also taken advantage of electronic technology. These enforcers must be supplied with investigative instruments to solve crimes and punish the criminals.95
What is beyond debate, however, is that real-time collection of traffic data may be absolutely necessary in criminal investigations such that, without it, authorities may not be able to probe certain crimes at all. In fact, it has been found that crucial electronic evidence may never be stored at all, as it may exist only in transient communications.96 The UN Office on Drugs and Crime requires real-time collection of data because of the urgency, sensitivity, or complexity of a law enforcement investigation.97
Hence, it is imprudent to precipitately make (1) an absolute declaration that all kinds of traffic data from all types of sources are protected by the constitutional right to privacy; and (2) a blanket pronouncement that the real-time collection thereof may only be conducted upon a prior lawful order of the court to constitute a valid search and seizure. Rather, the Court should impose a strict interpretation of Section 12 in the light of existing constitutional, jurisprudential and statutory guarantees and safeguards.
The Constitutional guarantee against unreasonable search and seizure is inviolable.
The inviolable right against unreasonable search and seizure is enshrined in Article III of the Constitution, which states:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
It is clear from the above that the constitutional guarantee does not prohibit all searches and seizures, but only unreasonable ones.98 As a general rule, a search and seizure is reasonable when probable cause has been established. Probable cause is the most restrictive of all thresholds. It has been broadly defined as those facts and circumstances that would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched.99 It has been characterized as referring to "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."100 Furthermore, probable cause is to be determined by a judge prior to allowing a search and seizure. The judge’s determination shall be contained in a warrant, which shall particularly describe the place to be searched and the things to be seized. Thus, when no warrant is issued, it is assumed that there is no probable cause to conduct the search, making that act unreasonable.
For the constitutional guarantee to apply, however, there must first be a search in the constitutional sense.101 It is only when there is a search that a determination of probable cause is required. In Valmonte v. De Villa, the Court said that the constitutional rule cannot be applied when mere routine checks consisting of "a brief question or two" are involved.102 The Court said that if neither the vehicle nor its occupants are subjected to a search – the inspection of the vehicle being limited to a visual search – there is no violation of an individual’s right against unreasonable searches and seizures. Hence, for as long as there is no physical intrusion upon a constitutionally protected area, there is no search.103
In recent years, the Court has had occasion to rule104 that a search occurs when the government violates a person’s "reasonable expectation of privacy," a doctrine first enunciated in Katz v. United States.105 Katz signalled a paradigm shift, as the inquiry into the application of the constitutional guarantee was now expanded beyond "the presence or absence of a physical intrusion into any given enclosure" and deemed to "[protect] people, not places."106 Under this expanded paradigm, the "reasonable expectation of privacy" can be established if the person claiming it can show that (1) by his conduct, he exhibited an expectation of privacy and (2) his expectation is one that society recognizes as reasonable. In People v. Johnson,107 which cited Katz, the seizure and admissibility of the dangerous drugs found during a routine airport inspection were upheld by the Court, which explained that "[p]ersons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable."108
Traffic data per se do not enjoy privacy protection; hence, no determination of probable cause is needed for the real-time collection thereof.
The very public structure of the Internet and the nature of traffic data per se undermine any reasonable expectation of privacy in the latter. The Internet is custom-designed to frustrate claims of reasonable expectation of privacy in traffic data per se, since the latter are necessarily disclosed to the public in the process of communication.
Individuals have no legitimate expectation of privacy in the data they disclose to the public and should take the risks for that disclosure. This is the holding of the U.S. Supreme Court in Smith v. Maryland.109 The 1979 case, which has stood the test of time and has been consistently applied by American courts in various communications cases – including recent ones in the electronic setting – arose from a police investigation of robbery. The woman who was robbed gave the police a description of the robber and of a car she had observed near the scene of the crime. After the robbery, she began receiving threatening phone calls from a man identifying himself as the robber. The car was later found to be registered in the name of the petitioner, Smith. The next day, the telephone company, upon police request, installed a pen register at its central offices to record the numbers dialled from the telephone at the home of Smith. The register showed that he had indeed been calling the victim’s house. However, since the installation of the pen register was done without a warrant, he moved to suppress the evidence culled from the device. In affirming the warrantless collection and recording of phone numbers dialled by Smith, the U.S. Supreme Court said:
This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. x x x.
x x x x
Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as ‘reasonable.’" Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E.g., United States v. Miller, 425 U. S., at 442-444; x x x.110 (Emphases supplied)
I am of the opinion that this Court may find the ruling in United States v. Forrester,111 persuasive. In that case, the U.S. 9th Circuit Court of Appeals applied the doctrine in Smith to electronic communications, and ruled that Internet users have no expectation of privacy in the to/from addresses of their messages or in the IP addresses of the websites they visit. According to the decision, users should know that these bits of information are provided to and used by Internet service providers for the specific purpose of directing the routing of information. It then emphasized that this examination of traffic data is "conceptually indistinguishable from government surveillance of physical mail," and that the warrantless search of envelope or routing information has been deemed valid as early as the 19th century. The court therein held:
We conclude that the [electronic] surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users’ imputed knowledge that their calls are completed through telephone company switching equipment. x x x. Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the "switching equipment that processed those numbers," e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party’s servers. x x x.
Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/from addresses of a person’s e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses — but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. x x x. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.
The government’s surveillance of e-mail addresses also may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail. In a line of cases dating back to the nineteenth century, the Supreme Court has held that the government cannot engage in a warrantless search of the contents of sealed mail, but can observe whatever information people put on the outside of mail, because that information is voluntarily transmitted to third parties. x x x. E-mail, like physical mail, has an outside address "visible" to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient. The privacy interests in these two forms of communication are identical. The contents may deserve Fourth Amendment protection, but the address and size of the package do not.112 (Emphases and underscoring supplied)
Based on the cogent logic explained above, I share the view that Internet users have no reasonable expectation of privacy in traffic data per se or in those pieces of information that users necessarily provide to the ISP, a third party, in order for their communication to be transmitted. This position is further bolstered by the fact that such communication passes through as many ISPs as needed in order to reach its intended destination. Thus, the collection and recording of these data do not constitute a search in the constitutional sense. As such, the collection thereof may be done without the necessity of a warrant.
Indeed, Professor Orin Kerr,113 a prominent authority on electronic privacy, observes that in the U.S., statutory rather than constitutional protections provide the essential rules governing Internet surveillance law. He explains that the very nature of the Internet requires the disclosure of non-content information, not only to the ISP contracted by the user, but also to other computers in order for the communication to reach the intended recipient. Professor Kerr explains thus:
Recall that the Fourth Amendment effectively carves out private spaces where law enforcement can’t ordinarily go without a warrant and separates them from public spaces where it can. One important corollary of this structure is that when a person sends out property or information from her private space into a public space, the exposure to the public space generally eliminates the Fourth Amendment protection. If you put your trash bags out on the public street, or leave your private documents in a public park, the police can inspect them without any Fourth Amendment restrictions.
The Supreme Court’s cases interpreting this so-called "disclosure principle" have indicated that the principle is surprisingly broad. For example, the exposure need not be to the public. Merely sharing the information or property with another person allows the government to go to that person to obtain it without Fourth Amendment protection. x x x.
Why does this matter to Internet surveillance? It matters because the basic design of the Internet harnesses the disclosure, sharing, and exposure of information to many machines connected to the network. The Internet seems almost custom-designed to frustrate claims of broad Fourth Amendment protection: the Fourth Amendment does not protect information that has been disclosed to third-parties, and the Internet works by disclosing information to third-parties. Consider what happens when an Internet user sends an e-mail. By pressing "send" on the user’s e-mail program, the user sends the message to her ISP, disclosing it to the ISP, with instructions to deliver it to the destination. The ISP computer looks at the e-mail, copies it, and then sends a copy across the Internet where it is seen by many other computers before it reaches the recipient’s ISP. The copy sits on the ISP’s server until the recipient requests the e-mail; at that point, the ISP runs off a copy and sends it to the recipient. While the e-mail may seem like a postal mail, it is sent more like a post card, exposed during the course of delivery.114 (Emphases and underscoring supplied.)
Clearly, considering that the Internet highway is so public, and that non-content traffic data, unlike content data, are necessarily exposed as they pass through the Internet before reaching the recipient, there cannot be any reasonable expectation of privacy in non-content traffic data per se.
Traffic data to be collected are explicitly limited to non-content and non-identifying public information which, unlike content data, are not constitutionally protected.
The U.S. Supreme Court and Court of Appeals in the above cases emphasized the distinction between content and non-content data, with only content data enjoying privacy protection. In Smith the Court approved of the use of pen registers, pointing out that "a pen register differs significantly from [a] listening device … for pen registers do not acquire the contents of communications."115 Hence, the information derived from the pen register, being non-content, is not covered by the constitutional protection. In Forrester, it was held that while the content of both e-mail and traditional mail are constitutionally protected, the non-content or envelope information is not. On the other hand, in the 2007 case Warshak v. United States,116 the Sixth Circuit Court of Appeals held that the contents of emails are protected. It employed the content/non-content distinction in saying that the "combined precedents of Katz and Smith" required a "heightened protection for the content of the communications."117 Consequently, it found a strong "content-based privacy interest" in e-mails.118
Traffic data are of course explicitly restricted to non-content and non-identifying data as defined in Section 12 of the Cybercrime Prevention Act itself. As such, it is plain that traffic data per se are not constitutionally protected.
The distinction between content and non-content data, such as traffic data, is important because it keeps the balance between protecting privacy and maintaining public order through effective law enforcement. That is why our Congress made sure to specify that the traffic data to be collected are limited to non-content data. For good measure, it additionally mandated that traffic data be non-identifying.
Kerr explains how the distinction between content and non-content information in electronic communication mirrors perfectly and logically the established inside and outside distinction in physical space, as far as delineating the investigative limitations of law enforcers is concerned. Inside space is constitutionally protected, and intrusion upon it requires a court warrant; in contrast, surveillance of outside space does not require a warrant because it is not a constitutionally cognizable search. He explains thus:
Whereas the inside/outside distinction is basic to physical world investigations, the content/non-content distinction is basic to investigations occurring over communications networks. Communications networks are tools that allow their users to send and receive communications from other users and services that are also connected to the network. This role requires a distinction between addressing information and contents. The addressing (or "envelope") information is the data that the network uses to deliver the communications to or from the user; the content information is the payload that the user sends or receives.
x x x x
We can see the same distinctions at work with the telephone network. The telephone network permits users to send and receive live phone calls. The addressing information is the number dialed ("to"), the originating number ("from"), the time of the call, and its duration. Unlike the case of letters, this calling information is not visible in the same way that the envelope of a letter is.
At the same time, it is similar to the information derived from the envelope of a letter. In contrast, the contents are the call itself, the sound sent from the caller’s microphone to the receiver’s speaker and from the receiver’s microphone back to the caller’s speaker.
Drawing the content/non-content distinction is somewhat more complicated because the Internet is multifunctional. x x x. Still, the content/non-content distinction holds in the Internet context as well. The easiest cases are human-to-human communications like e-mail and instant messages. The addressing information is the "to" and "from" e-mail address, the instant message to and from account names, and the other administrative information the computers generate in the course of delivery. As in the case of letters and phone calls, the addressing information is the information that the network uses to deliver the message. In contrast, the actual message itself is the content of the communication.
x x x x
The content/non-content distinction provides a natural replacement for the inside/outside distinction. To apply the Fourth Amendment to the Internet in a technologically neutral way, access to the contents of communications should be treated like access to evidence located inside. Accessing the contents of communications should ordinarily be a search. In contrast, access to non-content information should be treated like access to evidence found outside. Collection of this information should presumptively not be a search.
This translation is accurate because the distinction between content and non-content information serves the same function online that the inside/outside distinction serves in the physical world. Non-content information is analogous to outside information; it concerns where a person is and where a person is going. Consider what the police can learn by watching a suspect in public. Investigating officers can watch the suspect leave home and go to different places. They can watch him go to lunch, go to work, and go to the park; they can watch him drive home; and they can watch him park the car and go inside. In effect, this is to/from information about the person’s own whereabouts.
On the other hand, content information is analogous to inside information. The contents of communications reveal the substance of our thinking when we assume no one else is around. It is the space for reflection and self-expression when we take steps to limit the audience to a specific person or even just to ourselves. The contents of Internet communications are designed to be hidden from those other than the recipients, much like property stored inside a home is hidden from those who do not live with us.
x x x.
The connection between content/non-content on the Internet and inside/outside in the physical world is not a coincidence. Addressing information is itself a network substitute for outside information, and contents are a network substitute for inside information. Recall the basic function of communications networks: they are systems that send and receive communications remotely so that its users do not have to deliver or pick up the communications themselves. The non-content information is the information the network uses to deliver communications, consisting of where the communication originated, where it must be delivered, and in some cases the path of delivery. This information is generated in lieu of what would occur in public; it is information about the path and timing of delivery. In contrast, the contents are the private communications themselves that would have been inside in a physical network.
x x x x
In light of this, a technologically neutral way to translate the Fourth Amendment from the physical world to the Internet would be to treat government collection of the contents of communications as analogous to the government collection of information inside and the collection of non-content information as analogous to the collection of information outside. x x x.
This approach would mirror the line that the Fourth Amendment imposes in the physical world. In the physical world, the inside/outside distinction strikes a sensible balance. It generally lets the government observe where people go, when they go, and to whom they are communicating while protecting the actual substance of their speech from government observation without a warrant unless the speech is made in a setting open to the public. The content/non-content distinction preserves that function. It generally lets the government observe where people go in a virtual sense, and to observe when and with whom communications occur. The essentially transactional information that would occur in public in a physical world has been replaced by non-content information in a network environment, and the content/non-content line preserves that treatment. At the same time, the distinction permits individuals to communicate with others in ways that keep the government at bay. The Fourth Amendment ends up respecting private areas where people can share their most private thoughts without government interference both in physical space and cyberspace alike.119 (Emphases supplied.)
Indeed, there is a clear distinction between content and non-content data. The distinction presents a reasonable conciliation between privacy guarantees and law enforcement needs, since the distinction proceeds from logical differences between the two in their nature and privacy expectations. According to a comprehensive UN study on six international or regional cybercrime instruments,120 which include provisions on real-time collection of computer data, these instruments "make a distinction between real-time collection of traffic data and of content data" to account for the "differences in the level of intrusiveness into the private life of persons subject to each of the measures."121
From the above jurisprudence and scholarly analysis, there is enough basis to conclude that, given the very public nature of the Internet and the nature of traffic data as non-content and non-identifying information, individuals cannot have legitimate expectations of privacy in traffic data per se.
Section 12, however, suffers from lack of procedural safeguards to ensure that the traffic data to be obtained are limited to non-content and non-identifying data, and that they are obtained only for the limited purpose of investigating specific instances of criminality.
Thus far, it has been shown that real-time collection of traffic data may be indispensable in providing a crucial first lead in the investigation of criminality. Also, it has been explained that there is clearly no legitimate expectation of privacy in traffic data per se because of the nature of the Internet – it requires disclosure of traffic data which, unlike content data, will then travel exposed as it passes through a very public communications highway. It has also been shown that the definition of traffic data under the law is sufficiently circumscribed to cover only non-content and non-identifying data and to explicitly exclude content data. This distinction is important in protecting privacy guarantees while supporting law enforcement needs.
However, Section 12 suffers from a serious deficiency. The narrow definition of traffic data per se as non-content and non-identifying data is not supported by equally narrow procedural criteria for the exercise of the authority to obtain them. The government asserts that Section 12 provides for some protection against abuse. While this may be true, the safeguards provided are not sufficient to protect constitutional guarantees.
Firstly, the provision does not indicate what the purpose of the collection would be, since it only provides for "due cause" as a trigger for undertaking the activity. While the government has explained the limited purpose of the collection of traffic data, which purportedly can only go as far as providing an initial lead to an ongoing criminal investigation primarily in the form of an IP address, this limited purpose is not explicit in the assailed provision. Moreover, there is no assurance that the collected traffic data would not be used for preventive purposes as well. Notably, the Solicitor-General defines "due cause" as "good faith law enforcement reason"122 or "when there’s a complaint from a citizen that cybercrime has been committed." According to the Solicitor General this situation is "enough to trigger" a collection of traffic data.123 However, during the oral arguments, the Solicitor General prevaricated on whether Section 12 could also be used for preventive monitoring. He said that there might be that possibility, although the purpose would "largely" be for the investigation of an existing criminal act.124 This vagueness is disconcerting, since a preventive monitoring would necessarily entail casting a wider net than an investigation of a specific instance of criminality would. Preventive monitoring would correspondingly need more restrictive procedural safeguards. This failure to provide an unequivocally specified purpose is fatal because it would give the government the roving authority to obtain traffic data for any purpose.125
Secondly, Section 12 does not indicate who will determine "due cause." This failure to assign the determination of due cause to a specific and independent entity opens the floodgates to possible abuse of the authority to collect traffic data in real-time, since the measure will be undertaken virtually unchecked. Also, while Section 12 contemplates the collection only of data "associated with specified communications," it does not indicate who will make the specification and how specific it will be.
Finally, the collection of traffic data under Section 12 is not time-bound. This lack of limitation on the period of collection undoubtedly raises concerns about the possibility of unlimited collection of traffic data in bulk for purposes beyond the simple investigation of specific instances of criminality.
Existing approaches in other jurisdictions for collection of traffic data
To foreclose an Orwellian collection of traffic data in bulk that may lead to the invasion of privacy, the relevant law must be canalized to accommodate only an acceptable degree of discretion to law enforcers. It must provide for clear parameters and robust safeguards for the exercise of the authority. Notably, the Solicitor General himself has observed that stronger safeguards against abuse by law enforcers may have to be put in place.126 There are also indications that the legislature is willing to modify the law to provide for stronger safeguards, as shown in the bills filed in both chambers of Congress.127
In fashioning procedural safeguards against invasion of privacy, the rule of thumb should be: the more intrusive the activity, the stricter the procedural safeguards. Other countries have put in place some restrictions on the real-time collection of traffic data in their jurisdictions. In the United States, the following are the requirements for the exercise of this authority:
(1) relevance of the collected information to an ongoing criminal investigation;
(2) court order issued by a judicial officer based upon the certification of a government attorney; and
(3) limitation of the period of collection to sixty days (with the possibility of extension).
In the United Kingdom, the following requirements must be complied with:
(1) necessity of the information to be collected for the investigation of crime, protection of public safety, or a similar goal;
(2) approval of a high-level government official;
(3) proportionality of the collection to what is sought to be achieved; and
(4) limitation of the period of collection to thirty days.128
The above requirements laid down by two different jurisdictions offer different but similar formulations. As to what the triggering threshold or purpose would be, it could be the necessity threshold (for the investigation of crime, protection of public safety, or a similar goal) used in the United Kingdom or the relevance threshold (to an ongoing criminal investigation) in the United States. Note that these thresholds do not amount to probable cause.
As to who determines compliance with the legal threshold that triggers the exercise of the authority to collect traffic data in real time, the laws of the United States suggest that special judicial intervention is required. This intervention would be a very strong measure against the violation of privacy even if the judicial order does not require determination of probable cause. At the same time, however, the general concern of Justice Brion that "time is of the utmost essence in cyber crime law enforcement" needs to be considered. Hence, procedural rules of court will have to be adjusted so as not to unduly slow down law enforcement response to criminality considering how ephemeral some information could be. We must ensure that these rules are not out of step with the needs of law enforcement, given current technology. It may be noted that Justice Carpio has broached the idea of creating 24-hour courts to address the need for speedy law enforcement response.129
In the United Kingdom, the mechanism suggests that the authorizing entity need not be a judge, as it could be a high-ranking government official. Perhaps this non-judicial authorization proceeds from the consideration that since the triggering threshold is not probable cause, but only necessity to an ongoing criminal investigation, there is no need for a judicial determination of compliance with the aforesaid threshold.
The above requirements also provide limits on the period of collection of traffic data. In the United States, the limit is 60 days with a possibility of extension. This period and the possibility of extension are similar to those provided under our Anti-Wiretapping Law. Note, however, that the Anti-Wiretapping Law concerns the content of communications whereas the traffic data to be collected under Section 12 of the Cybercrime Prevention Act is limited to non-content and non-identifying data. Hence, the restriction on the period of collection could perhaps be eased by extending it to a longer period in the case of the latter type of data. In the United Kingdom, the limit is 30 days.
From the above observation of the deficiencies of Section 12, as well as the samples from other jurisdictions, the following general guidelines could be considered to strengthen the safeguards against possible abuse.
First, the relevance or necessity of the collection of traffic data to an ongoing criminal investigation must be established. This requirement to specify the purpose of the collection (to aid ongoing criminal investigation) will have the effect of limiting the usage of the collected traffic data to exclude dossier building, profiling and other purposes not explicitly sanctioned by the law. It will clarify that the intention for the collection of traffic data is not to create a historical data base for a comprehensive analysis of the personal life of an individual whose traffic data is collected, but only for investigation of specific instances of criminality. More important, it is not enough that there be an ongoing criminal investigation; the real-time collection must be shown to be necessary or at least relevant to the investigation. Finally, it should be explicitly stated that the examination of traffic data will not be for the purpose of preventive monitoring which, as observed earlier, would necessarily entail a greater scope than that involved in a targeted collection of traffic data for the investigation of a specific criminal act.
Second, there must be an independent authority – judicial or otherwise – who shall review compliance with the relevance and necessity threshold. The designation of this authority will provide additional assurance that the activity will be employed only in specific instances of criminal investigation and will be necessary or relevant. The designation of an authorizing entity will also inhibit the unjustified use of real-time collection of traffic data. The position of this person should be sufficiently high to ensure greater accountability. For instance, it was suggested during the oral arguments that the authorizing person be a lawyer of the national government in order to additionally strengthen that person’s accountability, proceeding as it would from his being an officer of the court.130
Third, there must be a limitation on the period of collection. The restriction on the time period will further prevent the indiscriminate and bulk collection of traffic data beyond what is necessary for a regular criminal investigation.
As to the type of technology to be used for collection, it seems that this cannot be specified beforehand. Certainly, only a general restriction can be made – that the technology should be capable of collecting only non-content and non-identifying traffic data. It should not be able to directly point to the location of the users of the Internet, the websites visited, the search words used, or any other data that reveal the thoughts of the user.
In the end, whatever mechanism is to be set in place must satisfy the Constitution’s requirements for the safeguard of the people’s right to privacy and against undue incursions on their liberties.
Final Words
Laws and jurisprudence should be able to keep current with the exponential growth in information technology.131 The challenge is acute, because the rapid progress of technology has opened up new avenues of criminality. Understandably, governments try to keep pace and pursue criminal elements that use new technological avenues. It is precisely during these times of zeal that the Court must be ever ready to perform its duty to uphold fundamental rights when a proper case is brought before it.
The Court has carefully trod through the issues that have been heard in these Petitions, especially since they involve the exercise of our power of judicial review over acts of the legislature. I believe that we have tried to exercise utmost judicial restraint and approached the case as narrowly as we could so as to avoid setting sweeping and overreaching precedents.132 We have thus prudently resolved the present Petitions with the view in mind that a future re-examination of the law is still possible,133 especially when the constitutional challenges set forth become truly ripe for adjudication. This is also so that we do not unduly tie the hands of the government when it regulates socially harmful conduct in the light of sudden changes in technology, especially since the regulation is meant to protect the very same fundamental rights that petitioners are asking this Court to uphold.
However, we have also not hesitated to strike down as unconstitutional those regulatory provisions that clearly transgress the Constitution and upset the balance between the State’s inherent police power and the citizen’s fundamental rights. After all, the lofty purpose of police power is to be at the loyal service of personal freedom.
WHEREFORE, I join the ponencia in resolving to leave the determination of the correct application of Section 7 to actual cases, except as it is applied to libel. Charging an offender both under Section 4(c)(4) of the Cybercrime Prevention Act and under Article 353 of the Revised Penal Code violates the guarantee against double jeopardy and is VOID and UNCONSTITUTIONAL for that reason.
Moreover, I join in declaring the following as UNCONSTITUTIONAL:
1. Section 4(c)(4), insofar as it creates criminal liability on the part of persons who receive a libelous post and merely react to it ;
2. Section 12, insofar as it fails to provide proper safeguards for the exercise of the authority to collect traffic data in real time;
3. Section 19, also insofar as it fails to provide proper standards for the exercise of the authority to restrict or block access to computer data.
However, I vote to declare Section 6 UNCONSTITUTIONAL, insofar as it applies to Section 4(c)(4), for unduly curtailing freedom of speech.
As regards the remaining assailed provisions, I vote to DISMISS the Petitions for failure to establish that a pre-enforcement judicial review is warranted at this time.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
1 !SAGAN! A. CRUZ, CONSTITUTIONAL LAW, I (2000).
2 See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA 579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, 19 March 2013; Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, 15 February 2011, 643 SCRA 198; Francisco v. House of Representatives, 460 Phil. 830 (2003); Demetria v. Alba, 232 Phil. 222 (1987).
3 CONSTITUTION, Art. VIII, Sec. 2(a).
4 5 U.S. 137 (1803).
5 Francisco v. House of Representatives, supra note 2 (citing U.S. v. Ang Tang Ho, 43 Phil 1 [1922]; McDaniel v. Apacible, 42 Phil 749 [1922]; Concepcion v. Paredes, 42 Phil 599 [1921]; In re Prautch, 1 Phil. 132 [1902]; and Casanovas v. Hord, 8 Phil 125 [1907]).
6 Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).
7 Francisco v. House of Representatives, supra note 2; Gutierrez v. House of Representatives Committee on Justice, supra note 2; CONSTITUTION, Art. VIII, Sec. 1.
8 Oposa v. Factoran, G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809.
9 Francisco v. House of Representatives, supra note 2; Tañada v. Angara, 338 Phil. 546 (1997); Oposa v. Factoran, supra (citing Llamas v. Orbos, 279 Phil. 920 [1991]; Bengzon v. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]); Gonzales v. Macaraig, 191 SCRA 452 [1990]; Coseteng v. Mitra, 187 SCRA 377 [1990]; Daza v. Singson, 259 Phil. 980 [1989]; and I RECORD, CONSTITUTIONAL COMMISSION 434-436 [1986]).
10 See: Francisco v. House of Representatives, supra note 2; United States v. Raines, 362 U.S. 17 (1960); and Angara v. Electoral Commission, supra note 6.
11 Morfe v. Mutuc, 130 Phil. 415 (1968); Angara v. Electoral Commission, supra.
12 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (citing Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 [2006]; and Regan v. Time, Inc., 468 U. S. 641, 652 [1984]).
13 Supra note 2.
14 Supra note 2, at 922-923.
15 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
16 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, 5 October 2010, 632 SCRA 146; David v. Macapagal-Arroyo, 522 Phil. 705, 753 (2006); Francisco v. House of Representatives, supra note 2, at 923-924; Angara v. Electoral Commission, supra note 6.
17 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra.
18 Information Technology Foundation of the Philippines v. Commission on Elections, 499 Phil. 281 (2005) (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227 [1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra; David v. Macapagal-Arroyo, supra note 16; Francisco v. House of Representatives, supra note 2; Angara v. Electoral Commission, supra note 6.
19 Lozano v. Nograles, G.R. Nos. 187883 & 187910, 16 June 2009, 589 SCRA 356.
20 Information Technology Foundation of the Philippines v. Commission on Elections, supra note 18; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra; Lozano v. Nograles, supra.
21 Angara v. Electoral Commission, supra note 6, at 158-159.
22 VICENTE V. MENDOZA, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS: CASES AND MATERIALS 91 (2nd Ed. 2013) (MENDOZA) (citing Paul A. Freund, "The Supreme Court," in TALKS ON AMERICAN LAW 81 [H. J. Berman Rev. Ed. 1972]).
23 Paul A. Freund, "The Supreme Court," in TALKS ON AMERICAN LAW 81 (H. J. Berman Rev. Ed. 1972) (quoted in MENDOZA, supra)
24 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.
25 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.
26 Nevertheless, we ultimately found that the petitioners therein failed to show their entitlement to a pre-enforcement judicial review of the Human Security Act of 2007. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16 (quoting Holder v. Humanitarian Law Project, 561 U.S. [unpaginated] [2010]); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); See also: Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979); Doe v. Bolton, 410 U.S. 179, 188-189 (1973) (citing Epperson v. Arkansas, 393 U.S. 97 [1968]);
27 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.
28 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16; De Castro v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA 579 (citing Buckley v. Valeo, 424 U.S. 1, 113-118 [1976]; Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 [1974]); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979) (citing Regional Rail Reorganization Act Cases, 419 U.S. 102 [1974]; Steffel v. Thompson, 415 U.S. 452 [1974]; O’Shea v. Littleton, 414 U.S. 488 [1974]; Doe v. Bolton, 410 U.S. 179 [1973]; Younger v. Harris, 401 U.S. 37 [1971]; Golden v. Zwickler, 394 U.S. 103 [1969]; Epperson v. Arkansas, 393 U.S. 97 [1968]; Evers v. Dwyer, 358 U.S. 202 [1958]; Pierce v. Society of Sisters, 268 U.S. 510 [1925]; Pennsylvania v. West Virginia, 262 U.S. 553 [1923]).
29 G.R. No. 203325, Jose Jesus M. Disini, Jr. v. The Secretary of Justice.
30 See Petition of Disini (G.R. No. 203335), pp. 22-23, 26-27; Petition of Reyes (G.R. No. 203407), p. 25; Petition of Castillo, (G.R. No. 203454), pp. 10-11; Petition of Cruz (G.R. No. 203469), pp. 39-40; Petition of Philippine Internet Freedom Alliance (G.R. No. 203518), p. 9.
31 See Petition of Adonis (G.R. No. 203378), p. 29; Petition of Sta. Maria (G.R. No. 203440), p. 22; Petition of Cruz (G.R. No. 203469), pp. 60-61; Petition of Philippine Bar Association (GRN 203501), p. 19; Petition of Colmenares (G.R. No. 203509), p. 15; Petition of National Press Club of the Philippines (G.R. No. 203515), pp. 16-17.
32 See Petition of Adonis (G.R. No. 203378), p. 33; Petition of National Union of Journalists of the Philippines (G.R. No. 203453), p. 11; Petition of National Press Club of the Philippines (G.R. No. 203515), p. 9; Petition of Philippine Internet Freedom Alliance (G.R. No. 203518), pp. 47-48; Petition of Philippine Bar Association (GRN 203501), p. 19.
33 See Petition of Disini (G.R. No. 203335), pp. 10-12.
34 Petition of Disini (G.R. No. 203335), pp. 10-12.
35 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16 (citing David v. Macapagal-Arroyo, supra note 16; Romualdez v. Commission on Elections, 576 Phil. 357 (2008).
36 Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.
37 Id.
38 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, supra note 16.
39 Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto, [Sep. Op. of J. Mendoza], 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2; Ashwander v. Tennessee Valley Authority, 297 U.S. 288 [1936]).
40 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16; David v. Macapagal-Arroyo, supra note 16.
41 G.R. No. 95770, 1 March 1993, 219 SCRA 256.
42 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16; David v. Macapagal-Arroyo, supra note 16; Estrada v. Sandiganbayan, 421 Phil. 290 (2001).
43 Id.
44 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (citing Sabri v. United States, 541 U. S. 600, 609 [2004]).
45 Petition of Disini, pp. 9-10. The computation of the imposable penalty in the Petition seems to be erroneous. Insofar as the crime of libel is concerned, I have discussed below that the imposable penalty in libel qualified by the use of ICT should be prisión correccional in its maximum period to prisión mayor in its minimum period.
46 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.
47 The Philippine Railway Co. v. Geronimo Paredes, 64 Phil. 129 (1936).
48 RAMON C. AQUINO, THE REVISED PENAL CODE – VOL. 1, 3 (1961) (AQUINO).
49 Id.
50 See AQUINO, at 8-11.
51 Id. at 277; LUIS B. REYES, THE REVISED PENAL CODE – CRIMINAL LAW, BOOK ONE, 328 (2008) (REYES).
52 People v. Lab-eo, 424 Phil. 482 (2002); REYES, supra.
53 See REVISED PENAL CODE, Art. 61 (on rules for graduating penalties); REYES, supra, at 705-706 (2008); Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
54 See: Jalosjos v. Commission on Elections, G.R. Nos. 193237 and 193536, 9 October 2012, 683 SCRA 1 (citing Lacuna v. Abes, 133 Phil. 770, 773-774 [1968]); Aratea v. Commission on Elections, G.R. No. 195229, 9 October 2012, 683 SCRA 105.
55 See REVISED PENAL CODE, Art. 61 (on rules for graduating penalties); REYES, supra note 51, at 705-706; Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
56 Probation Law; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Baclayon v. Mutia, 241 Phil. 126 (1984). See: Del Rosario v. Rosero, 211 Phil. 406 (1983).
57 See REVISED PENAL CODE, Art. 61 (on rules for graduating penalties); REYES, supra note 51, at 705-706; Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
58 Probation Law, Sec. 4.
59 Moreno v. Commission on Elections, G.R. No. 168550, 10 August 2006, 498 SCRA 547.
60 Baclayon v. Mutia, 241 Phil. 126 (1984).
61 See generally: Monsanto v. Factoran, G.R. No. 78239, 9 February 1989, 170 SCRA.
62 AQUINO, supra note 48, at 695-696 (citing People v. Montenegro, 68 Phil 659 [1939]; People v. Moran, 44 Phil. 387, 433 [1923]; Santos v. Superintendent, 55 Phil. 345 [1930]).
63 Id.
64 Id.
65 Id.
66 Id.
67 Id.
68 Id.
69 REYES, supra note 51, at 845.
70 See also TSN dated 15 January 2013, pp. 80-81.
71 Senate Transcript of the Bicameral Conference Committee on the Disagreeing Provisions of SBN 2796 and HBN 5808 (Cybercrime Prevention Act of 2012) (31 May 2012) 15th Congress, 2nd Regular Sess. at 43-47, 52-56 [hereinafter Bicameral Conference Committee Transcript].
72 AQUINO, supra note 48, at 277 (citing People v. Bayot, 64 Phil. 269 [1937]). See also VICENTE J. FRANCISCO, THE REVISED PENAL CODE: ANNOTATED AND COMMENTED, BOOK I, 414 (2ND ED. 1954).
73 LEONOR D. BOADO, NOTES AND CASES ON THE REVISED PENAL CODE, 147 (2008)
74 Id at 146.
75 AQUINO, supra note 48, at 277.
76 Quinto v. COMELEC, G.R. No. 189698, 22 February 2010 (citing Broadrick v. Oklahoma 413 U.S. 601, 93 S.Ct. 2908 [1973]).
77 321 Phil. 279 (1995).
78 Id., at 346.
79 Undersecretary of the Department of Justice Ernesto L. Pineda sent a letter to the Secretary General of the Council of Europe dated 31 August 2007, expressing the wish of the Philippine government to be invited to accede to the Convention on Cybercrime. The Council of Europe granted the request in 2008. See Decision of the Council of Europe on the Request by the Philippines to be invited to accede to the Convention on Cybercrime, 1021st Meeting of the Ministers’ Deputies, dated 12 March 2008. Available at <https://wcd.coe.int/ViewDoc.jsp?id=1255665&Site=CM>, accessed on 12 September 2013.
80 Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281; Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.
81 JONATHAN CLOUGH, PRINCIPLES OF CYBERCRIME, 22 (2010);
82 Id.
83 <http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=8&DF=&CL=ENG>, accessed on 20 October 2013.
84 Twenty-eight of COE’s members also belong to the European Union (EU). All its member states have signed up to the European Convention on Human Rights, a treaty designed to protect human rights, democracy and the rule of law. <http://www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en> accessed on 20 October 2013.
85 Canada, Japan, South Africa, and the United States.
86 <http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=8&DF=&CL=ENG.> accessed on 20 October 2013.
87 Supra note 28.
88 SUMIT GHOSH ET AL., EDITORS, CYBERCRIMES: A MULTIDISCIPLINARY ANALYSIS, 330 (2010).
89 Id. at 330-331.
90 Id. at 331.
91 Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281; Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.
92 Explanatory Report to the Convention on Cybercrime, [2001] COETSER 8 (23 November 2001), available at <http://conventions.coe.int/Treaty/en/Reports/Html/185.htm>, accessed on 12 September 2013.
93 Richard W. Downing. Columbia Journal of Transnational Law, Vol. 43, p. 743 (2005).
94 Id.
95 Id.
96 UNITED NATIONS OFFICE ON DRUGS AND CRIME, COMPREHENSIVE STUDY ON CYBERCRIME (DRAFT), 130 (2013).
97 Id.
98 JOAQUIN BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 162 (2003).
99 Tan v. Sy Tiong Gue, G.R. No. 174570, 17 February 2010, 613 SCRA 98, 106;
100 Supra note 1 at 163, citing Brinegar v. United States, 338 U.S. 160, 175 (1949)
101 Supra note 44.
102 Id.
103 See: United States v. Jones 132 S. Ct. 945, 950 n.3 (2012).
104 Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People v. Johnson, 401 Phil 734 (2000).
105 389 U.S. 347 (1967).
106 Id.
107 Supra note 104.
108 Id.
109 442 U.S. 735 (1979).
110 Supra note 55.
111 512 F.3d 500 (2007).
112 512 F.3d 500 (2007).
113 Fred C. Stevenson Research Professor, George Washington University Law School.
114 Orin S. Kerr, Enforcing Privacy Rights: Communications Privacy: Lifting the "Fog" of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law, 54 HASTINGS L.J. 805 (2003).
115 442 U.S. 735 (1979).
116 490 F.3d 455, 470-71 (6th Cir. 2007).
117 Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 WM. & MARY L. REV. 2105, 2115 (2009).
118 Id. The Sixth Circuit later granted a petition for rehearing en banc and skirted the constitutional issue. It vacated the Decision upon a finding that the case was unripe.
119 Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 STAN. L. REV. 1005 (2010).
120 These are: 1.) COMESA Draft Model Bill, Art. 38; 2.) Commonwealth Model Law, Art. 19; 3.) Council of Europe Cybercrime Convention, Art. 20; 4.) ITU/CARICOM/CTU Model Legislative Texts, Art. 25; 5.) League of Arab States Convention, Art. 28 and 6.) Draft African Union Convention, Art. 3-55.
121 UNITED NATIONS OFFICE ON DRUGS AND CRIME, COMPREHENSIVE STUDY ON CYBERCRIME (DRAFT), 130 (2013).
122 TSN dated 29 January 2013, p. 49.
123 Id at 86.
124 Id at 95-96.
125 Ople v. Torres, 354 Phil. 948 (1998).
126 TSN dated 29 January 2013, p. 48.
127 See Senate Bill (SB) No. 126, "An Act Repealing Section 4(c) (4), Chapter II of Republic Act No. 10175"; SB No. 11, "An Act Amending Section 6 of Republic Act 10175 Otherwise Known as an Act Defining Cybercrime, Providing For the Prevention, Investigation and Imposition of Penalties Therefor and For Other Purposes"; SB No. 154, "An Act Amending Republic Act No. 10175, Otherwise Known as the Cybercrime Prevention Act of 2012"; SB No. 249, "An Act Repealing Sections 4 (c) (4), 5, 6, and 7 of RA 10175, Otherwise Known as the Cybercrime Prevention Act of 2012"; SB Nos 53 and 1091 and House Bill (HB) No. 1086 or the Magna Carta for Philippine Internet Freedom; HB No. 1132, "An Act Repealing Republic Act No. 10175 or the Cybercrime Prevention Act of 2012."
128 Richard W. Downing, Shoring up the Weakest Link: What Lawmakers around the World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime, 43 COLUM. J. TRANSNAT’L L. 705 (2005).
129 TSN dated 29 January 2013, p. 50.
130 TSN dated 29 January 2013, p. 92.
131 RAY KURZWEIL, THE AGE OF SPIRITUAL MACHINES: WHEN COMPUTERS EXCEED HUMAN INTELLIGENCE, 13 (1999); Ray Kurzweil, The Law of Accelerating Returns, 7 March 2001, available at <http://www.kurzweilai.net/the-law-of-accelerating-returns>, accessed on 29 September 2013.
132 See: Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto, [Sep. Op. of J. Mendoza] 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2; and Ashwander v. Tennessee Valley Authority, 297 U.S. 288 [1936]).
133 See: Republic v. Roque, G.R. No. 204603, 24 September 2013.
The Lawphil Project - Arellano Law Foundation
CONCURRING AND DISSENTING OPINION
CARPIO, J.:
Corporations of all shapes and sizes track what you buy, store and analyze our data, and use it for commercial purposes; thats how those targeted ads pop up on your computer or smartphone. But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say:
trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends upon the law to constrain those in power.1
President Barack Obama
17 January 2014, on National
Security Agency Reforms
I concur in striking down as unconstitutional Section 4(c)(3), Section 7, Section 12, and Section 19 of Republic Act No. 10175 (RA 10175) (1) penalizing unsolicited commercial speech; (2) allowing multiple prosecutions post-conviction under RA 10175; (3) authorizing the warrantless collection in bulk of traffic data; and (4) authorizing the extrajudicial restriction or blocking of access to computer data, respectively, for being violative of the Free Speech, Search and Seizure, Privacy of Communication, and Double Jeopardy Clauses.
I dissent, however, from the conclusion that (1) Article 354 of the Revised Penal Code (Code) creating the presumption of malice in defamatory imputations, and (2) Section 4(c)(1) of RA 10175 penalizing "cybersex," are not equally violative of the constitutional guarantees of freedom of speech and expression. I therefore vote to declare Article 354 of the Code, as far as it applies to public officers and public figures, and Section 4(c)(1) of RA 10175, unconstitutional for violating Section 4, Article III of the Constitution.
Article 354 of the Code Repugnant to the Free Speech Clause
Article 354’s Presumption of Malice Irreconcilable with Free Speech Jurisprudence On Libel of Public Officers and Public Figures
Article 4(c)(4) of RA 10175 impliedly re-adopts Article 354 of the Code without any qualification. Article 354 took effect three years2 before the ratification of the 1935 Constitution that embodied the Free Speech Clause.3 Unlike most of the provisions of the Code which are derived from the Spanish Penal Code of 1870, Article 354 is based on legislation4 passed by the Philippine Commission during the American occupation. Nevertheless, Article 354 is inconsistent with norms on free speech and free expression now prevailing in both American and Philippine constitutional jurisprudence.
Article 354 provides as follows:
Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Italicization supplied)
While the text of Article 354 has remained intact since the Code’s enactment in 1930, constitutional rights have rapidly expanded since the latter half of the last century, owing to expansive judicial interpretations of broadly worded constitutional guarantees such as the Free Speech Clause. Inevitably, judicial doctrines crafted by the U.S. Supreme Court protective of the rights to free speech, free expression and free press found their way into local jurisprudence, adopted by this Court as authoritative interpretation of the Free Speech Clause in the Philippine Bill of Rights. One such doctrine is the New York Times actual malice rule, named after the 1964 case in which it was crafted, New York Times v. Sullivan.5
New York Times broadened the mantle of protection accorded to communicative freedoms by holding that the "central meaning" of the Free Speech Clause is the protection of citizens who criticize official conduct even if such criticism is defamatory and false. True, the defamed public official may still recover damages for libel. However, as precondition for such recovery, New York Times laid down a formidable evidentiary burden6 – the public official must prove that the false defamatory statement was made "with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not."7
The broad protection New York Times extended to communicative rights of citizens and the press vis-à-vis the conduct of public officials was grounded on the theory that "unfettered interchange of ideas for the bringing about of political and social changes desired by the people"8 is indispensable in perfecting the experiment of self-governance. As for erroneous statements, the ruling considered them "inevitable in free debate, and that [they] must be protected if the freedoms of expression are to have the ‘breathing space’ that they need x x x to survive."9 The actual malice doctrine was later made applicable to public figures.10
Six years after New York Times became U.S. federal law in 1964, this Court took note of the actual malice doctrine as part of a trend of local and foreign jurisprudence enlarging the protection of the press under the Free Speech Clause.11 Since then, the Court has issued a steady stream of decisions applying New York Times as controlling doctrine to dismiss civil12 and criminal13 libel complaints filed by public officers or public figures. As Justice Teehankee aptly noted:
The Court has long adopted the criterion set forth in the U.S. benchmark case of New York Times Co. vs. Sullivan that "libel can claim no talismanic immunity from constitutional limitations" that protect the preferred freedoms of speech and press. Sullivan laid down the test of actual malice, viz. "(T)he constitutional guaranty of freedom of speech and press prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not." x x x.14
Indeed, just as the actual malice doctrine is enshrined in the U.S. First Amendment jurisprudence, it too has become interwoven into our own understanding of the Free Speech Clause of the Philippine Bill of Rights of the 1973 and 1987 Constitutions.15
The actual malice rule enunciates three principles, namely:
1) Malice is not presumed even in factually false and defamatory statements against public officers and public figures; it must be proven as a fact for civil and criminal liability to lie;
2) Report on official proceedings or conduct of an officer may contain fair comment, including factually erroneous and libelous criticism; and
3) Truth or lack of reckless disregard for the truth or falsity of a defamatory statement is an absolute defense against public officers and public figures.
In contrast, Article 354, in relation to Article 361 and Article 362 of the Code, operates on the following principles:
1) Malice is presumed in every defamatory imputation, even if true (unless good intention and justifiable motives are shown);
2) Report on official proceedings or conduct of an officer must be made without comment or remarks, or, alternatively, must be made without malice;16 and
3) In defamatory allegations made against a public official, truth is a defense only if the imputed act or omission constitutes a crime or if the imputed act or omission relates to official duties.17
The actual malice rule and Article 354 of the Code impose contradictory rules on (1) the necessity of proof of malice in defamatory imputations involving public proceedings or conduct of a public officer or public figure; and (2) the availability of truth as a defense in defamatory imputations against public officials or public figures. The former requires proof of malice and allows truth as a defense unqualifiedly, while the latter presumes malice and allows truth as a defense selectively. The repugnancy between the actual malice rule and Article 354 is clear, direct and absolute.
Nonetheless, the Office of the Solicitor General (OSG) argues for the retention of Article 354 in the Code, suggesting that the Court can employ a "limiting construction" of the provision to reconcile it with the actual malice rule.18 The ponencia appears to agree, holding that the actual malice rule "impl[ies] a stricter standard of ‘malice’ x x x where the offended party is a [public officer or] public figure," the "penal code and, implicitly, the cybercrime law mainly target libel against private persons."19
Allowing a criminal statutory provision clearly repugnant to the Constitution, and directly attacked for such repugnancy, to nevertheless remain in the statute books is a gross constitutional anomaly which, if tolerated, weakens the foundation of constitutionalism in this country. "The Constitution is either a superior, paramount law, x x x or it is on a level with ordinary legislative acts,"20 and if it is superior, as we have professed ever since the Philippines operated under a Constitution, then "a law repugnant to the Constitution is void."21
Neither does the ponencia’s claim that Article 354 (and the other provisions in the Code penalizing libel) "mainly target libel against private persons" furnish justification to let Article 354 stand. First, it is grossly incorrect to say that Article 354 "mainly target[s] libel against private persons." Article 354 expressly makes reference to news reports of "any judicial, legislative or other official proceedings" which necessarily involve public officers as principal targets of libel. Second, the proposition that this Court ought to refrain from exercising its power of judicial review because a law is constitutional when applied to one class of persons but unconstitutional when applied to another class is fraught with mischief. It stops this Court from performing its duty,22 as the highest court of the land, to "say what the law is" whenever a law is attacked as repugnant to the Constitution. Indeed, it is not only the power but also the duty of the Court to declare such law unconstitutional as to one class, and constitutional as to another, if valid and substantial class distinctions are present.
Undoubtedly, there is a direct and absolute repugnancy between Article 354, on one hand, and the actual malice rule under the Free Speech Clause, on the other hand. Section 4(c)(4) of RA 10175 impliedly re-adopts Article 354 without qualification, giving rise to a clear and direct conflict between the re-adopted Article 354 and the Free Speech Clause based on prevailing jurisprudence. It now becomes imperative for this Court to strike down Article 354, insofar as it applies to public officers and public figures.
The ramifications of thus striking down Article 354 are: (1) for cases filed by public officers or public figures, civil or criminal liability will lie only if the complainants prove, through the relevant quantum of proof, that the respondent made the false defamatory imputation with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not; and (2) for cases filed by private individuals, the respondent cannot raise truth as a defense to avoid liability if there is no good intention and justifiable motive.
Section 4(c)(1) Fails Strict Scrutiny
Section 4(c)(1) which provides:
Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:
x x x x
(c) Content-related Offenses:
(1) Cybersex. — 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.
is attacked by petitioners as unconstitutionally overbroad. Petitioners in G.R. No. 203378 contend that Section 4(c)(1) sweeps in protected online speech such as "works of art that depict sexual activities" which museums make accessible to the public for a fee.23 Similarly, the petitioner in G.R. No. 203359, joining causes with the petitioner in G.R. No. 203518, adopts the latter’s argument that the crime penalized by Section 4(c)(1) "encompasses even commercially available cinematic films which feature adult subject matter and artistic, literary or scientific material and instructional material for married couples."24
The OSG counters that Section 4(c)(1) does not run afoul with the Free Speech Clause because it merely "seeks to punish online exhibition of sexual organs and activities or cyber prostitution and white slave trade for favor or consideration."25 It adds that "publication of pornographic materials in the internet [is] punishable under Article 201 of the Revised Penal Code x x x which has not yet been declared unconstitutional."26 The ponencia agrees, noting that the "subject" of Section 4(c)(1) is "not novel" as it is allegedly covered by two other penal laws, Article 201 of the Code and Republic Act No. 9208 (The Anti-Trafficking in Persons Act of 2003 [RA 9208]). The ponencia rejects the argument that Section 4(c)(1) is overbroad because "it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating x x x the lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system."27
The government and the ponencia’s position cannot withstand analysis.
As Section 4(c) of RA 10175 itself states, the crimes defined under that part of RA 10175, including Section 4(c)(1), are "Content-related Offenses," penalizing the content of categories of online speech or expression. As a content-based regulation, Section 4(c)(1) triggers the most stringent standard of review for speech restrictive laws – strict scrutiny – to test its validity.28
Under this heightened scrutiny, a regulation will pass muster only if the government shows (1) a compelling state interest justifying the suppression of speech; and (2) that the law is narrowly-tailored to further such state interest. On both counts, the government in this case failed to discharge its burden.
The state interests the OSG appears to advance as bases for Section 4(c)(1) are: (1) the protection of children "as cybersex operations x x x are most often committed against children," and (2) the cleansing of cyber traffic by penalizing the online publication of pornographic images.29 Although legitimate or even substantial, these interests fail to rise to the level of compelling interests because Section 4(c)(1) is both (1) overinclusive in its reach of the persons exploited to commit the offense of cybersex, and (2) underinclusive in its mode of commission. These defects expose a legislative failure to narrowly tailor Section 4(c)(1) to tightly fit its purposes.
As worded, Section 4(c)(1) penalizes 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." On the first interest identified by the government, the overinclusivity of this provision rests on the lack of a narrowing clause limiting its application to minors. As a result, Section 4(c)(1) penalizes the "lascivious exhibition of sexual organs of, or sexual activity" involving minors and adults, betraying a loose fit between the state interest and the means to achieve it.
Indeed, the proffered state interest of protecting minors is narrowly advanced not by Section 4(c)(1) but by the provision immediately following it, Section 4(c)(2), which penalizes online child pornography. Section 4(c)(2) provides:
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system x x x.
Republic Act No. 9775 defines "Child pornography" as referring to –
any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities.30 (Emphasis supplied)
Under Section 3 of that law, the term "explicit sexual activities" is defined as follows:
Section 3. Definition of terms. –
x x x x
(c) "Explicit Sexual Activity" includes actual or simulated –
(1) As to form:
(i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex;
x x x x
(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus[.] (Emphasis supplied)
Clearly then, it is Section 4(c)(2), not Section 4(c)(1), that narrowly furthers the state interest of protecting minors by punishing the "representation x x x by electronic means" of sexually explicit conduct including the exhibition of sexual organs of, or sexual acts, involving minors.
Section 4(c)(1) does not advance such state interest narrowly because it is broadly drawn to cover both minors and adults. Section 4(c)(2) is constitutional because it narrowly prohibits cybersex acts involving minors only, while Section 4(c)(1) is unconstitutional because it expands the prohibition to cybersex acts involving both minors and adults when the justification for the prohibition is to protect minors only.
The overinclusivity of Section 4(c)(1) vis-a-vis the second state interest the government invokes results from the broad language Congress employed to define "cybersex." As the petitioners in G.R. No. 203378, G.R. No. 203359 and G.R. No. 203518 correctly point out, the crime of "lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration" embraces within its ambit "works of art that depict sexual activities" made accessible to the public for a fee or "commercially available cinematic films which feature adult subject matter and artistic, literary or scientific material and instructional material for married couples."31 Congress could have narrowly tailored Section 4(c)(1) to cover only online pornography by hewing closely to the Miller test – the prevailing standard for such category of unprotected speech, namely, "an average person, applying contemporary standards would find [that] the work, taken as a whole, appeals to the prurient interest by depicting or describing in a patently offensive way, sexual conduct specifically defined by the applicable x x x law and x x x, taken as a whole, lacks serious literary, artistic, political, or scientific value."32
Moreover, Section 4(c)(1) penalizes "any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration." There are many fee-based online medical publications that illustrate sexual organs and even sexual acts. Section 4(c)(1) will now outlaw all these online medical publications which are needed by doctors in practicing their profession. This again shows the overinclusiveness of Section 4(c)(1) in violation of the Free Speech Clause.
The loose fit between the government interests of cleansing the Internet channels of immoral content and of protecting minors, on the one hand, and the means employed to further such interests, on the other hand, is highlighted by the underincluvisity of Section 4(c)(1) insofar as the manner by which it regulates content of online speech. Section 4(c)(1) limits the ambit of its prohibition to fee-based websites exhibiting sexual organs or sexual activity. In doing so, it leaves outside its scope and unpunished under Section 4(c)(1) non-fee based porn websites, such as those generating income through display advertisements. The absence of regulation under Section 4(c)(1) of undeniably unprotected online speech in free and open porn websites defeats the advancement of the state interests behind the enactment of Section 4(c)(1) because unlike fee-based online porn websites where the pool of viewers is narrowed down to credit card-owning subscribers who affirm they are adults, free and open porn websites are accessible to all, minors and adults alike. Instead of purging the Internet of pornographic content, Section 4(c)(1) will trigger the proliferation of free and open porn websites which, unlike their fee-based counterparts, are not subject to criminal regulation under Section 4(c)(1). What Section 4(c)(1) should have prohibited and penalized are free and open porn websites which are accessible by minors, and not fee-based porn websites which are accessible only by credit card-owning adults, unless such fee-based websites cater to child pornography, in which case they should also be prohibited and penalized.
It is doubtful whether Congress, in failing to tailor Section 4(c)(1) to narrowly advance state interests, foresaw this worrisome and absurd effect. It is, unfortunately, an altogether common by-product of loosely crafted legislations.
Contrary to the ponencia’s conclusion, Section 4(c)(1) does not cover "the same subject" as Article 201 of the Code and RA 9208. Article 201penalizes "Immoral doctrines, obscene publications and exhibitions and indecent shows" as understood under the Miller test.33 On the other hand, RA 9208 penalizes trafficking in persons (or its promotion) for illicit purposes (Section 4[a]). The fact that these statutory provisions remain valid in the statute books has no bearing on the question whether a statutory provision penalizing the "lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration" offends the Free Speech Clause.
The majority’s decision to uphold the validity of Section 4(c)(1) reverses, without explanation, the well-entrenched jurisprudence in this jurisdiction applying the obscenity test of Miller. Just five years ago in 2009, this Court unanimously applied Miller in Soriano v. Laguardia34 to test whether the statements aired on late night TV qualified for protection under the Free Speech Clause. Much earlier in 2006, the Court also applied Miller to review a conviction for violation of Article 201 of the Code on obscene publications in Fernando v. Court of Appeals.35 It was in Pita v. Court of Appeals,36 however, decided in 1989 over a decade after Miller, where the Court had first occasion to describe Miller as "the latest word" in the evolution of the obscenity test in the U.S. jurisdiction. Indeed, as I noted in my separate opinion in Soriano, Miller is an "expansion" of previous tests on pornography developed in the U.S. and English jurisdictions, liberalizing the elements of previous tests (Hicklin and Roth):
The leading test for determining what material could be considered obscene was the famous Regina v. Hicklin case wherein Lord Cockburn enunciated thus:
I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.
Judge Learned Hand, in United States v. Kennerly, opposed the strictness of the Hicklin test even as he was obliged to follow the rule. He wrote:
I hope it is not improper for me to say that the rule as laid down, however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.
Roth v. United States laid down the more reasonable and thus, more acceptable test for obscenity: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Such material is defined as that which has "a tendency to excite lustful thoughts," and "prurient interest" as "a shameful or morbid interest in nudity, sex, or excretion."
Miller v. California merely expanded the Roth test to include two additional criteria: "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and the work, taken as whole, lacks serious literary, artistic, political, or scientific value." The basic test, as applied in our jurisprudence, extracts the essence of both Roth and Miller – that is, whether the material appeals to prurient interest.37 (Italicization supplied; internal citations omitted)
Miller is the modern obscenity test most protective of speech uniformly followed in this jurisdiction for over two decades. The majority, in upholding Section 4(c)(1) and rejecting Miller, regresses to less protective frameworks of speech analysis. Because neither the ponencia nor the concurring opinions devote discussion on this doctrinal shift, one is left guessing whether the Philippine jurisdiction’s test on pornography has reverted only up to Roth or reaches as far back as the discredited Hicklin test. Either way, the lowered protection afforded to works claimed as obscene turns back the clock of free expression protection to the late 1960s and beyond when prevailing mores of morality are incongruous to 21st century realities.
Section 4(c)(3) Repugnant to the Free Speech Clause
Section 4(c)(3) of RA 10175 makes criminal the transmission through a computer system of "electronic communication x x x which seek to advertise, sell, or offer for sale products and services" unless they fall under three categories of exceptions. These categories are: (1) the recipient of the commercial message "gave prior affirmative consent" to do so; (2) the "primary intent" of the commercial message "is for service and/or administrative announcements from the sender" to its "users, subscribers or customers"; and (3) the commercial message (a) has an "opt-out" feature; (b) has a source which is "not purposely disguise[d]"; and (c) "does not purposely include misleading information x x x to induce the recipient to read the message." According to the OSG, Congress enacted Section 4(c)(3) to improve the "efficiency of commerce and technology" and prevent interference with "the owner’s peaceful enjoyment of his property [computer device]."38
Section 4(c)(3) fails scrutiny. Section 4(c)(3) impermissibly restricts the flow of truthful and non-misleading commercial speech in cyberspace that does not fall under any of the exceptions in Section 4(c)(3), lowering the protection it enjoys under the Free Speech Clause.39 Section 4(c)(3) would be constitutional if it allowed the free transmission of truthful and non-misleading commercial speech, even though not falling under any of the exceptions in Section 4(c)(3). There is no legitimate government interest in criminalizing per se the transmission in cyberspace of truthful and non-misleading commercial speech.
Under the exception clauses of Section 4(c)(3), commercial speech may be transmitted online only when (1) the recipient has subscribed to receive it ("opted-in"); or (2) the commercial speech, directed to its "users, subscribers or customers," contains announcements; or (3) the undisguised, non-misleading commercial speech has an "opt-out" feature. The combination of these exceptions results in penalizing the transmission online (1) of commercial speech with no "opt-out" feature to non-subscribers, even if truthful and non-misleading; and (2) of commercial speech which does not relay "announcements" to subscribers, even if truthful and non-misleading. Penalizing the transmission of these protected categories of commercial speech is devoid of any legitimate government interest and thus violates the Free Speech Clause.
Indeed, the free flow of truthful and non-misleading commercial speech online should remain unhampered to assure freedom of expression of protected speech. In cyberspace, the free flow of truthful and non-misleading commercial speech does not obstruct the public view or degrade the aesthetics of public space in the way that billboards and poster advertisements mar the streets, highways, parks and other public places. True, commercial speech does not enjoy the same protection as political speech in the hierarchy of our constitutional values. However, any regulation of truthful and non-misleading commercial speech must still have a legitimate government purpose. Regulating truthful and non-misleading commercial speech does not result in "efficiency of commerce and technology" in cyberspace.
In fact, the free flow of truthful and non-misleading commercial speech should be encouraged in cyberspace for the enlightenment of the consuming public, considering that it is cost-free to the public and almost cost-free to merchants. Instead of using paper to print and mail truthful and non-misleading commercial speech, online transmission of the same commercial message will save the earth's dwindling forests and be more economical, reducing marketing costs and bringing down consumer prices. If any regulation of truthful and non-misleading commercial speech is to take place, its terms are best fixed through the interplay of market forces in cyberspace. This is evident, in fact, in the menu of options currently offered by email service providers to deal with unwanted or spam email, allowing their account holders to customize preferences in receiving and rejecting them. Unwanted or spam emails automatically go to a separate spam folder where all the contents can be deleted by simply checking the "delete all" box and clicking the delete icon. Here, the account holders are given the freedom to read, ignore or delete the unwanted or spam email with hardly any interference to the account holders' peaceful enjoyment of their computer device. Unless the commercial speech transmitted online is misleading or untruthful, as determined by courts, government should step aside and let this efficient self-regulatory market system run its course.
Section 7 of RA 10175 Repugnant to the Double Jeopardy and Free Speech Clauses
The petitioners in G.R. No. 203335 and G.R. No. 203378 attack the constitutionality of Section 7, which makes conviction under RA 10175 non-prejudicial to "any liability for violation of any provision of the Revised Penal Code, as amended, or special laws," for being repugnant to the Double Jeopardy Clause. The OSG sees no merit in the claim, citing the rule that "a single set of acts may be prosecuted and penalized under two laws."40
The OSG misapprehends the import of Section 7. Although RA 10175 defines and punishes a number of offenses to which Section 7 applies, its application to the offense of online libel under Section 4(c)(4) of RA 10175, in relation to the offense of libel under Article 353 of the Code, suffices to illustrate its unconstitutionality for trenching the Double Jeopardy and Free Speech Clauses.
RA 10175 does not define libel. Its definition is found in the Code (Article 353) which provides:
Definition of libel - A libel is a public and malicious imputation of a crime or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
As defined, the medium through which libel is committed is not an element of such offense. What is required of the prosecution are proof of the (1) statement of a discreditable act or condition of another person; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice.41 The irrelevance of the medium of libel in the definition of the crime is evident in Article 355 of the Code which punishes libel with a uniform penalty42 whether it is committed "by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means."
RA 10175 adopts the Code's definition of libel by describing online libel under Section 4(c)(4) as "[t]he unlawful or prohibited acts 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." By adopting the Code's definition of libel, Section 4(c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article 355 of the Code. Section 4(c)(4) merely adds the media of "computer system or any other similar means which may be devised in the future" to the list of media enumerated in Article 355. This is understandable because at the time the Code was enacted in 1930, the Internet was non-existent. In the words of the OSG itself (in contradiction to its position on the constitutionality of Section 7), Congress enacted Section 4(c)(4) not to create a new crime, but merely to "ma[ke] express an avenue already covered by the term 'similar means' under Article 355, to keep up with the times":
Online libel is not a new crime. Online libel is a crime punishable under x x x Article 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an avenue already covered by the term "similar means" under Article 355, to keep up with the times.43 (Emphasis supplied)
For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and Article 353 in relation to Article 355 of the Code define and penalize the same offense of libel. Under the Double Jeopardy Clause, conviction or acquittal under either Section 4(c)(4) or Article 353 in relation to Article 355 constitutes a bar to another prosecution for the same offense of libel.
The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No. 203378 provides a perfect example for applying the rules on print and online libel in relation to the Double Jeopardy Clause. These petitioners write columns which are published online and in print by national and local papers.44 They allege, and respondents do not disprove, that "their columns see publication in both print and online versions of the papers they write for."45 Should these petitioners write columns for which they are prosecuted and found liable under Section 4(c)(4) of RA 10175 for online libel the Double Jeopardy Clause bars their second prosecution for print libel for the same columns upon which their first conviction rested, under Article 353 in relation to Article 355 of the Code. Such constitutional guarantee shields them from being twice put in jeopardy of punishment for the same offense of libel.
The foregoing analysis applies to all other offenses defined and penalized under the Code or special laws which (1) are penalized as the same offense under RA 10175 committed through the use of a computer system; or (2) are considered aggravated offenses under RA 10175. Conviction or acquittal under the Code or such special laws constitutes a bar to the prosecution for the commission of any of the offenses defined under RA 10175. Thus, for instance, conviction or acquittal under Section 4(a) of RA 9775 (use of a child to create child pornography46) constitutes a bar to the prosecution for violation of Section 4(c)(2) of RA 19175 (online child pornography) and vice versa. This is because the offense of child pornography under RA 9775 is the same offense of child pornography under RA 10175 committed through the use of a computer system.
Section 7 of RA 10175 also offends the Free Speech Clause by assuring multiple prosecutions of those who fall under the ambit of Section 4(c)(4). The specter of multiple trials and sentencing, even after conviction under RA 10175, creates a significant and not merely incidental chill on online speech. Section 7 stifles speech in much the same way that excessive prison terms for libel, subpoenas to identify anonymous online users or high costs of libel litigation do. It has the effect of making Internet users "steer far wide of the unlawful zone"47 by practicing self-censorship, putting to naught the democratic and inclusive culture of the Internet where anyone can be a publisher and everyone can weigh policies and events from anywhere in the world in real time. Although Section 7, as applied to Section 4(c)(4), purports to strengthen the protection to private reputation that libel affords, its sweeping ambit deters not only the online publication of defamatory speech against private individuals but also the online dissemination of scathing, false, and defamatory statements against public officials and public figures which, under the actual malice rule, are conditionally protected. This chilling effect on online communication stifles robust and uninhibited debate on public issues, the constitutional value lying at the core of the guarantees of free speech, free expression and free press.
Section 12 of RA 10175 Violative of the Search and Seizure and Privacy of Communication Clauses
Section 12 of RA 10175 grants authority to the government to record in bulk and in real time electronic data transmitted by means of a computer system,48 such as through mobile phones and Internet-linked devices. The extent of the power granted depends on the type of electronic data sought to be recorded, that is, whether traffic data or non-traffic data ("all other data").
For traffic data, which RA 10175 defines as "the communication’s origin, destination, route, time, date, size, duration, or type of underlying service," the government, for "due cause" can record them on its own or with the aid of service providers, without need of a court order. For non-traffic data collection, a "court warrant" is required based on reasonable grounds that the data to be collected is "essential" for the prosecution or prevention of violation of any of the crimes defined under RA 10175. The full text of Section 12 provides:
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 or 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.
The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.
Section 12 of RA 10175 is the statutory basis for intelligence agencies of the government to undertake warrantless electronic data surveillance and collection in bulk to investigate and prosecute violations of RA 10175.
Section 12 fails constitutional scrutiny. Collection in bulk of private and personal electronic data transmitted through telephone and the Internet allows the government to create profiles of the surveilled individuals’ close social associations, personal activities and habits, political and religious interests, and lifestyle choices expressed through these media. The intrusion into their private lives is as extensive and thorough as if their houses, papers and effects are physically searched. As such, collection in bulk of such electronic data rises to the level of a search and seizure within the meaning of the Search and Seizure Clause, triggering the requirement for a judicial warrant grounded on probable cause. By vesting the government with authority to undertake such highly intrusive search and collection in bulk of personal digital data without benefit of a judicial warrant, Section 12 is unquestionably repugnant to the guarantee under the Search and Seizure Clause against warrantless searches and seizures.
Further, Section 12 allows the use of advanced technology to impermissibly narrow the right to privacy of communication guaranteed under the Privacy of Communications Clause. Although such clause exempts from its coverage searches undertaken "when public safety or order requires otherwise, as prescribed by law," Section 12 is not a "law" within the contemplation of such exception because it does not advance the interest of "public safety or order." Nor does it comply with the warrant requirement which applies to all searches of communication and correspondence not falling under recognized exceptions to the Search and Seizure Clause, such as the search of non-legal communication sent and received by detainees49 search of electronic data stored in government issued computers,50 or security searches at airports.51
Scope of Information Subject of Real-Time Extrajudicial Collection and Analysis by Government
Section 12’s definition of traffic data – the communication’s origin, destination, route, time, date, size, duration, or type of underlying service – encompasses the following information for mobile phone, Internet and email communications:
Mobile phone:
telephone number of the caller
telephone number of the person called
location of the caller
location of the person called
the time, date, and duration of the call
(For messages sent via the Short Messaging System, the same
information are available save for the duration of the communication.)
Email:
date
time
source
destination and size
attachment/s
country of sender and recipient
city of sender and recipient
Internet:
search keywords
public IP (Internet Protocol) of user
geolocation of user
client’s name (for smartphone, PC or desktop)
browser
OS (Operating System)
URL (Universal Source Locator)
date and time of use
Unlike personal information which form part of the public domain (hence, readily accessible) because their owners have either disclosed them to the government as a result of employment in that sector or are part of transactions made with regulatory agencies (such as the land transportation, passport and taxing agencies), the information indicated above are personal and private. They reveal data on the social associations, personal activities and habits, political and religious interests, and lifestyle choices of individuals that are not freely accessible to the public. Because Section 12 contains no limitation on the quantity of traffic data the government can collect, state intelligence agencies are free to accumulate and analyze as much data as they want, anytime they want them.
Randomly considered, traffic data do not reveal much about a person’s relationships, habits, interests or lifestyle expressed online or through phone. After all, they are mere bits of electronic footprint tracking a person’s electronic communicative or expressive activities. When compiled in massive amounts, however, traffic data, analyzed over time, allows the state to create a virtual profile of the surveilled individuals, revealing their close relationships, mental habits, political and religious interests, as well as lifestyle choices – as detailed as if the government had access to the content of their letters or conversations. Or put differently –
When [traffic] information x x x is combined, it can identify all of our surreptitious connections with the world, providing powerful evidence of our activities and beliefs. [L]aw enforcement can construct a "complete mosaic of a person's characteristics" through this type of x x x surveillance.Under these circumstances, the information the government accumulates is more akin to content than mere cataloguing.52 (Emphasis supplied)
The profiling of individuals is not hampered merely because the bulk data relate to telephone communication. As pointed out in a Report, dated 12 December 2013, by a government panel of experts53 which reviewed the U.S. government’s electronic surveillance policy (Panel’s Report) –
[t]he record of every telephone call an individual makes or receives over the course of several years can reveal an enormous amount about that individual’s private life. x x x. [T]elephone calling data can reveal x x x an individual’s "familial, political, professional, religious, and sexual associations." It can reveal calls "to the psychiatrist, the plastic surgeon, x x x the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay bar, and on and on."54
This virtual profiling is possible not only because of software55 which sifts through telephone and Internet data to locate common patterns but also because, for Internet "Universal Resource Locators x x x, they are [both] addresses (e.g., www.amazon.com/kidneydisease) and [links] x x x allowing access to the website and thus permit government to ascertain what the user has viewed."56 The identities of users of mobile phone numbers can easily be found through Internet search or in public and private mobile phone directories, calling cards, letterheads and similar documents.
Bulk Data Surveillance Rises to the
Level of a "Search and Seizure" Within
the Meaning of the Search and Seizure
Clause
There is no quarrel that not all state access to personal information amount to a "search" within the contemplation of the Search and Seizure Clause. Government collection of data readily available (or exposed) to the public, even when obtained using devices facilitating access to the information, does not implicate constitutional concerns of privacy infringement.57 It is when government, to obtain private information, intrudes into domains over which an individual holds legitimate privacy expectation that a "search" takes place within the meaning of the Search and Seizure Clause.58 To determine whether the collection of bulk traffic data of telephone and online communication amounts to a constitutional search, the relevant inquiry, therefore, is whether individuals using such media hold legitimate expectation that the traffic data they generate will remain private.
Unlike this Court, the U.S. Supreme Court had weighed such question and answered in the negative. In Smith v. Maryland,59 promulgated in 1979, that court was confronted with the issue whether the warrantless monitoring of telephone numbers dialed from a private home and stored by the telephone company, amounted to a search within the meaning of the Fourth Amendment. The U.S. High Court’s analysis centered on the reasoning that a caller has no legitimate privacy expectation over telephone numbers stored with telephone companies because he "assumed the risk that the company would reveal to police the numbers he dialed."60
Several reasons undercut not only the persuasive worth of Smith in this jurisdiction but also the cogency of its holding. First, all three modern Philippine Constitutions, unlike the U.S. Constitution, explicitly guarantee "privacy of communications and correspondence."61 This is a constitutional recognition, no less, of the legitimacy of the expectation of surveilled individuals that their communication and correspondence will remain private and can be searched by the government only upon compliance with the warrant requirement under the Search and Seizure Clause. Although such guarantee readily protects the content of private communication and correspondence, the guarantee also protects traffic data collected in bulk which enables the government to construct profiles of individuals’ close social associations, personal activities and habits, political and religious interests, and lifestyle choices, enabling intrusion into their lives as extensively as if the government was physically searching their "houses, papers and effects."62
Second, at the time the U.S. Supreme Court decided Smith in 1979, there were no cellular phones, no Internet and no emails as we know and use them today. Over the last 30 years, technological innovations in mass media and electronic surveillance have radically transformed the way people communicate with each other and government surveils individuals. These radical changes undergirded the refusal of the District Court of Columbia to follow Smith in its ruling promulgated last 16 December 2013, striking down portions of the spying program of the U.S. National Security Agency (NSA).63 The District Court observed:
[T]he relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. x x x x In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, x x x which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the (NSA) now receives as part of its Bulk Telephony Metadata Program. It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. x x x.64 (Emphasis supplied)
Third, individuals using the telephone and Internet do not freely disclose private information to the service providers and the latter do not store such information in trust for the government. Telephone and Internet users divulge private information to service providers as a matter of necessity to access the telephone and Internet services, and the service providers store such information (within certain periods) also as a matter of necessity to enable them to operate their businesses. In what can only be described as an outright rejection of Smith’s analysis, the Panel’s Report, in arriving at a similar conclusion, states:65
In modern society, individuals, for practical reasons, have to use banks, credit cards, e-mail, telephones, the Internet, medical services, and the like. Their decision to reveal otherwise private information to such third parties does not reflect a lack of concern for the privacy of the information, but a necessary accommodation to the realities of modern life. What they want — and reasonably expect — is both the ability to use such services and the right to maintain their privacy when they do so.66 (Emphasis supplied)
Clearly then, bulk data surveillance and collection is a "search and seizure" within the meaning of the Search and Seizure Clause not only because it enables maximum intrusion into the private lives of the surveilled individuals but also because such individuals do not forfeit their privacy expectations over the traffic data they generate by transacting with service providers. Bulk data and content-based surveillance and collection are functionally identical in their access to personal and private information. It follows that the distinction Section 12 of RA 10175 draws between content-based and bulk traffic data surveillance and collection, requiring judicial warrant for the former and a mere administrative "due cause" for the latter, is unconstitutional. As "searches and seizures" within the contemplation of Search and Seizure Clause, bulk data and content-based surveillance and collection are uniformly subject to the constitutional requirement of a judicial warrant grounded on probable cause.
Section 12 of RA 10175
Impermissibly Narrows the
Right to Privacy of Communication
and Correspondence
The grant under Section 12 of authority to the government to undertake bulk data surveillance and collection without benefit of a judicial warrant enables the government to access private and personal details on the surveilled individuals’ close social associations, personal activities and habits, political and religious interests, and lifestyle choices. This impermissibly narrows the sphere of privacy afforded by the Privacy of Communication Clause. It opens a backdoor for government to pry into their private lives as if it obtained access to their phones, computers, letters, books, and other papers and effects. Since Section 12 does not require a court warrant for government to undertake such surveillance and data collection, law enforcement agents can access these information anytime they want to, for whatever purpose they may deem as amounting to "due cause."
The erosion of the right to privacy of communication that Section 12 sanctions is pernicious because the telephone and Internet are indispensable tools for communication and research in this millennium. People use the telephone and go online to perform tasks, run businesses, close transactions, read the news, search for information, communicate with friends, relatives and business contacts, and in general go about their daily lives in the most efficient and convenient manner. Section 12 forces individuals to make the difficult choice of preserving their communicative privacy but reverting to non-electronic media, on the one hand, or availing of electronic media while surrendering their privacy, on the other hand. These choices are inconsistent with the Constitution’s guarantee to privacy of communication.
Section 12 of RA 10175 not a "law"
Within the Contemplation of the
Exception Clause in Section 3(1),
Article III of the 1987 Constitution
Undoubtedly, the protection afforded by the Constitution under the Privacy of Communication Clause is not absolute. It exempts from the guarantee intrusions "upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law." Does Section 12 of RA 10175 constitute a "law" within the contemplation of the Privacy of Communication Clause?
When the members of the 1971 Constitutional Convention deliberated on Article III, Section 4(1) of the 1973 Constitution, the counterpart provision of Article III, Section 3(1) of the 1987 Constitution, the phrase "public safety or order" was understood by the convention members to encompass "the security of human lives, liberty and property against the activities of invaders, insurrectionists and rebels."67 This narrow understanding of the public safety exception to the guarantee of communicative privacy is consistent with Congress’ own interpretation of the same exception as provided in Article III, Section 1(5) of the 1935 Constitution. Thus, when Congress passed the Anti-Wiretapping Act68 (enacted in 1965), it exempted from the ban on wiretapping
"cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security" (Section 3). In these specific and limited cases where wiretapping has been allowed, a court warrant is required before the government can record the conversations of individuals.
Under RA 10175, the categories of crimes defined and penalized relate to (1) offenses against the confidentiality, integrity and availability of computer data and systems (Section 4[a]); (2) computer-related offenses (Section 4[b]); (3) content-related offenses (Section 4[c]); and (4) other offenses (Section 5). None of these categories of crimes are limited to public safety or public order interests (akin to the crimes exempted from the coverage of the Anti-Wiretapping Law). They relate to crimes committed in the cyberspace which have no stated public safety or even national security dimensions. Such fact takes Section 12 outside of the ambit of the Privacy of Communication Clause.
In any event, even assuming that Section 12 of RA 10175 is such a "law," such "law" can never negate the constitutional requirement under the Search and Seizure Clause that when the intrusion into the privacy of communication and correspondence rises to the level of a search and seizure of personal effects, then a warrant issued by a judge becomes mandatory for such search and seizure. Fully cognizant of this fact, Congress, in enacting exceptions to the ban on wiretapping under the Anti-Wiretapping Act, made sure that law enforcement authorities obtain a warrant from a court based on probable cause to undertake wiretapping. Section 3 of the Anti-Wiretapping Act provides:
Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding Sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security:
Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. (Emphasis supplied)
Section 12 of RA 10175 More
Expansive than U.S. Federal Electronic
Surveillance Laws
Under U.S. federal law, authorities are required to obtain a court order to install "a pen register or trap and trace device" to record in real time or decode electronic communications.69 Although initially referring to technology to record telephone numbers only, the term "pen register or trap and trace device" was enlarged by the Patriot Act to cover devices which record "dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications," including Internet traffic data.70 The court of competent jurisdiction may issue ex parte the order for the installation of the device "if [it] finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation."71
For electronic surveillance relating to foreign intelligence, U.S. federal law requires the government to obtain ex parte orders from the Foreign Intelligence Surveillance Court (FISC)72 upon showing that "the target of surveillance was a foreign power or an agent of a foreign power."73 Under an amendment introduced by the Patriot Act, the government was further authorized to obtain an ex parte order from the FISC for the release by third parties of "tangible things" such as books, papers, records, documents and other items "upon showing that the tangible things sought are relevant to an authorized investigation x x x to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."74 The investigation is further subjected to administrative oversight by the Attorney General whose prior authorization to undertake such investigation is required.75
In contrast, Section 12 of RA 10175 authorizes law enforcement officials "to collect or record by technical or electronic means traffic data in real-time" if, in their judgment, such is for "due cause."76 Unlike in the Patriot Act, there is no need for a court order to collect traffic data. RA 10175 does not provide a definition of "due cause" although the OSG suggests that it is synonymous with "just reason or motive" or "adherence to a lawful procedure."77 The presence of "due cause" is to be determined solely by law enforcers.
In comparing the U.S. and Philippine law, what is immediately apparent is that the U.S. federal law requires judicial oversight for bulk electronic data collection and analysis while Philippine law leaves such process to the exclusive discretion of law enforcement officials. The absence of judicial participation under Philippine law precludes independent neutral assessment by a court on the necessity of the surveillance and collection of data.78 Because the executive’s assessment of such necessity is unilateral, Philippine intelligence officials can give the standard of "due cause" in Section 12 of RA 10175 as broad or as narrow an interpretation as they want.
The world by now is aware of the fallout from the spying scandal in the United States arising from the disclosure by one of its intelligence computer specialists that the U.S. government embarked on bulk data mining, in real time or otherwise, of Internet and telephone communication not only of its citizens but also of foreigners, including heads of governments of 35 countries.79 The District Court’s observation in Klayman on the bulk data collection and mining undertaken by the NSA of telephone traffic data is instructive:
I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgment of freedom of the people by gradual and silent encroachments by those in power," would be aghast.80
Equally important was that court’s finding on the efficacy of the bulk surveillance program of the U.S. government: "the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature."81
To stem the ensuing backlash, legislative and executive leaders of the U.S. government committed to re-writing current legislation to curb the power of its surveillance agencies.82 The pressure for reforms increased with the recent release of an unprecedented statement by the eight largest Internet service providers in America calling on the U.S. government to "limit surveillance to specific, known users for lawful purposes, and x x x not undertake bulk data collection of Internet communications."83 Along the same lines, the Panel’s Report recommended, among others that, "the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future queries and data-mining for foreign intelligence purposes"84 as such poses a threat to privacy rights, individual liberty and public trust. The Panel’s Report elaborated:
Because international terrorists inevitably leave footprints when they recruit, train, finance, and plan their operations, government acquisition and analysis of such personal information might provide useful clues about their transactions, movements, behavior, identities and plans. It might, in other words, help the government find the proverbial needles in the haystack. But because such information overwhelmingly concerns the behavior of ordinary, law-abiding individuals, there is a substantial risk of serious invasions of privacy.
As a report of the National Academy of Sciences (NAS) has observed, the mass collection of such personal information by the government would raise serious "concerns about the misuse and abuse of data, about the accuracy of the data and the manner in which the data are aggregated, and about the possibility that the government could, through its collection and analysis of data, inappropriately influence individuals’ conduct."
According to the NAS report, "data and communication streams" are ubiquitous:
[They] concern financial transactions, medical records, travel, communications, legal proceedings, consumer preferences, Web searches, and, increasingly, behavior and biological information. This is the essence of the information age — x x x everyone leaves personal digital tracks in these systems whenever he or she makes a purchase, takes a trip, uses a bank account, makes a phone call, walks past a security camera, obtains a prescription, sends or receives a package, files income tax forms, applies for a loan, e-mails a friend, sends a fax, rents a video, or engages in just about any other activity x x x x Gathering and analyzing [such data] can play major roles in the prevention, detection, and mitigation of terrorist attacks x x x x [But even] under the pressures of threats as serious as terrorism, the privacy rights and civil liberties that are cherished core values of our nation must not be destroyed x x x x One x x x concern is that law-abiding citizens who come to believe that their behavior is watched too closely by government agencies x x x may be unduly inhibited from participating in the democratic process, may be inhibited from contributing fully to the social and cultural life of their communities, and may even alter their purely private and perfectly legal behavior for fear that discovery of intimate details of their lives will be revealed and used against them in some manner.85 (Emphasis supplied)
In lieu of data collection in bulk and data mining, the Panel’s Report recommended that such data be held by "private providers or by a private third party,"86 accessible by American intelligence officials only by order of the FISC, upon showing that the requested information is "relevant to an authorized investigation intended to protect ‘against international terrorism or clandestine intelligence activities,’"87 a more stringent standard than what is required under current federal law.
Finding merit in the core of the Panel’s Report’s proposal, President Obama ordered a two-step "transition away from the existing program" of telephone data collection in bulk and analysis, first, by increasing the threshold for querying the data and requiring judicial oversight to do so (save in emergency cases), and second, by relinquishing government’s possession of the bulk data:
[I]’ve ordered that the transition away from the existing program will proceed in two steps
Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization, instead of the current three, and I have directed the attorney general to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding or in the case of a true emergency.
Next, step two: I have instructed the intelligence community and the attorney general to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself. x x x.88 (Emphasis supplied)
The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of communication caused by the grant of broad powers to the state to place anyone under electronic surveillance without or with minimal judicial oversight. If judicial intervention under U.S. law for real time surveillance of electronic communication did not rein in U.S. spies, the total absence of such intervention under Section 12 of RA 10175 is a blanket legislative authorization for data surveillance and collection in bulk to take place in this country.
Section 12 Tilts the Balance in Favor
of Broad State Surveillance Over
Privacy of Communications Data
As large parts of the world become increasingly connected, with communications carried on wired or wirelessly and stored electronically, the need to balance the state’s national security and public safety interest, on the one hand, with the protection of the privacy of communication, on the other hand, has never been more acute. Allowing the state to undertake extrajudicial, unilateral surveillance and collection of electronic data in bulk which, in the aggregate, is just as revealing of a person’s mind as the content of his communication, impermissibly tilts the balance in favor of state surveillance at the expense of communicative and expressive privacy. More than an imbalance in the treatment of equally important societal values, however, such government policy gives rise to fundamental questions on the place of human dignity in civilized society. This concern was succinctly articulated by writers from all over the world protesting the policy of mass surveillance and collection of data in bulk:
With a few clicks of the mouse, the state can access your mobile device, your email, your social networking and Internet searches.1âwphi1 It can follow your political leanings and activities and, in partnership with Internet corporations, it collects and stores your data.
The basic pillar of democracy is the inviolable integrity of the individual. x x x [A]ll humans have a right to remain unobserved and unmolested. x x x.
A person under surveillance is no longer free; a society under surveillance is no longer a democracy. [O]ur democratic rights must apply in virtual as in real space.89
The Government must maintain fidelity to the 1987 Constitution’s guarantee against warrantless searches and seizures, as well as the guarantee of privacy of communication and correspondence. Thus, the Government, consistent with its national security needs, may enact legislation allowing surveillance and data collection in bulk only if based on individualized suspicion and subject to meaningful judicial oversight.
Section 19 of RA 10175 Violative of the
Free Speech, Free Press, Privacy of Communication
and Search and Seizure Clauses
The OSG concedes the unconstitutionality of Section 19 which authorizes the Department of Justice (DOJ) to "issue an order to restrict or block access" to computer data, that is, "any representation of facts, information, or concepts in a form suitable for processing in a computer system,"90 whenever the DOJ finds such data prima facie violative of RA 10175. The OSG's stance on this "take down" clause is unavoidable. Section 19 allows the government to search without warrant the content of private electronic data and administratively censor all categories of speech. Although censorship or prior restraint is permitted on speech which is pornographic, commercially misleading or dangerous to national security,91 only pornographic speech is covered by RA 10175 (under Section 4(c)(2) on online child pornography). Moreover, a court order is required to censor or effect prior restraint on protected speech.92 By allowing the government to electronically search without warrant and administratively censor all categories of speech, specifically speech which is non-pornographic, not commercially misleading and not a danger to national security, which cannot be subjected to censorship or prior restraint, Section 19 is unquestionably repugnant to the guarantees of free speech, free expression and free press and the rights to privacy of communication and against unreasonable searches and seizures. Indeed, as a system of prior restraint on all categories of speech, Section 19 is glaringly unconstitutional.
ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL Article 354 of the Revised Penal Code, insofar as it applies to public officers and public figures, and the following provisions of Republic Act No. 10175, namely: Section 4( c )(1 ), Section 4( c )(3-), Section 7, Section 12, and Section 19, for being violative of Section 2, Section 3(1) Section 4, and Section 21, Article III of the Constitution.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 Transcript of President Obama’s Jan. 17 Speech on NSA Reforms, THE WASHINGTON POST, 17 January 2014, http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html.
2 On 1 January 1932.
3 Article III, Section 1(8) ("No law shall be passed abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and petition the Government for redress of grievances."). This is substantially reiterated in Article III, Section 9 of the 1973 Constitution and Article III, Section 4 of the 1987 Constitution.
4 Act No. 277.
5 376 U.S. 254 (1964) (involving a libel complaint for damages filed by the Montgomery, Alabama police commissioner against the New York Times Company and other individuals for a paid political advertisement published in the New York Times, criticizing police conduct during a series of protests staged by civil rights activists at the height of the campaign for racial equality in the American South in the 1960s).
6 Also described as "an escalati[on] of the plaintiff’s burden of proof to an almost impossible level." Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 771 (1985) (White, J., concurring).
7 Supra note 5 at 279-280.
8 Supra note 5 at 269 quoting Roth v. United States, 354 U.S. 476, 484 (1957).
9 Supra note 5 at 271-272 citing N. A. A. C. P. v. Button, 371 U.S. 415, 433 (1963).
10 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
11 Lopez v. Court of Appeals, 145 Phil. 219 (1970).
12 Borjal v. CA, 361 Phil. 1 (1999); Baguio Midland Courier v. CA, 486 Phil. 223 (2004); Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, 15 May 2009, 588 SCRA 1.
13 Flor v. People, 494 Phil. 439 (2005); Guingguing v. CA, 508 Phil. 193 (2005); Vasquez v. CA, 373 Phil. 238 (1999).
14 Babst v. National Intelligence Board, 217 Phil. 302, 331-332 (1984) (internal citations omitted).
15 Justice Enrique Fernando consistently espoused the theory that U.S. v. Bustos, 37 Phil. 731 (1918), preceded New York Times by over three decades (Mercado v. CFI of Rizal, 201 Phil. 565 [1982]; Philippine Commercial and Industrial Bank v. Philnabank Employees Association, 192 Phil. 581 [1981]). The OSG does one better than Justice Fernando by claiming that a much earlier case, U.S. v. Sedano, 14 Phil. 338 (1909), presaged New York Times (OSG Memorandum, pp. 62-63).
16 Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. (Emphasis supplied)
17 Art. 361. Proof of the truth. — x x x x
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. (Emphasis supplied)
18 OSG Memorandum, pp. 56-66, citing Snyder v. Ware, 397 U.S. 589 (1970).
19 Decision, p. 15.
20 Marbury v. Madison, 5 U.S. 137, 180 (1803).
21 Id. at 177.
22 The obligatory nature of judicial power is textualized under the 1987 Constitution. Section 1, Article VIII provides: "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." (Emphasis supplied)
23 Memorandum (G.R. No. 203378), p. 19.
24 Memorandum (G.R. No. 203359), p. 58.
25 OSG Memorandum, p. 43.
26 Id. at 44-45.
27 Decision, p. 11.
28 Osmeña v. COMELEC, 351 Phil. 692 (1998).
29 Id. at 44.
30 Section 3(c).
31 For the same reason, Section 4(c)(1) is unconstitutionally overbroad, sweeping in "too much speech" including the protected indecent but non-obscene type. G. GUNTHER AND K. SULLIVAN, CONSTITUTIONAL LAW 1287 (14th ed.).
32 Miller v. California, 413 U.S. 15 (1973), cited with approval in Soriano v. Laguardia, G.R. No. 164785, 15 March 2010, 615 SCRA 254, (Carpio, J., dissenting); Fernando v. Court of Appeals, 539 Phil. 407 (2006).
33 Fernando v. Court of Appeals, supra note 32.
34 G.R. No. 164785, 29 April 2009, 587 SCRA 79.
35 539 Phil. 407 (2006).
36 258-A Phil. 134 (1989).
37 G.R. No. 164785, 15 March 2010, 615 SCRA 254, 270-271 (Resolution).
38 Decision, p. 13.
39 The protected nature of truthful and non-misleading commercial speech was adverted to in Philippine jurisprudence in Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health Duque III, 562 Phil. 386, 448-451 (Puno, C.J., concurring).
40 OSG Consolidated Comment, pp. 109-110, citing People v. Sandoval, G.R. Nos. 95353-54, 7 March 1996, 254 SCRA 436.
41 Vasquez v. Court of Appeals, 373 Phil. 238 (1999).
42 Prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
43 OSG Consolidated Comment, p. 77.
44 Malaya (http://www.malaya.com.ph/) and Abante (http://www.abante.com.ph); Manila Standard Today (manilastandardtoday.com); and The News Today (www.thenewstoday.info), respectively.
45 Petition (G.R. No. 203378), p. 37.
46 "Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person: (a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography[.]"
47 Speiser v. Randall, 357 U.S. 513, 526 (1958).
48 Defined in the law (Section 3[g]) as "refering to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media."
49 Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189.
50 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505 Phil. 298 (2005).
51 People v. Canton, 442 Phil. 743 (2002); People v. Johnson, 401 Phil. 734 (2000). See also United States v. Arnold, 523 F.3d 941 (9th Cir. Cal., 2008), certiorari denied by the U.S. Supreme Court in Arnold v. United States, 129 S. Ct. 1312 (2009) (involving a warrantless search of a laptop of a passenger who had arrived from overseas travel).
52 Christopher Slobogin, The Search and Seizure of Computers and Electronic Evidence: Transaction Surveillance by the Government, 75 Miss. L.J. 139, 178. (Hereinafter Slobogin, Transaction Surveillance).
53 Composed of Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein, and Peter Swire.
54 Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies, 12 December 2013, pp. 116-117 (internal citations omitted), http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf (last visited on 29 December 2013).
55 Commercially available programs are collectively referred to as "snoopware" which "allows its buyer to track the target well beyond a single website; it accumulates the addresses of all the Internet locations the target visits, as well as the recipient of the target’s emails." Slobogin, Transaction Surveillance at 146. The government surveillance agencies tend to develop their own version of such programs.
56 Id. at 153.
57 See, e.g., Florida v. Riley, 488 U.S. 445 (1989) and California v. Ciraolo, 476 U.S. 207 (1986) (uniformly holding that aerial surveillance of private homes and surrounding areas is not a "search" under the Fourth Amendment).
58 This standard, crafted by Mr. Justice Harlan in his separate opinion in Katz v. US, 389 U.S. 347 (1967), has been adopted by this Court to settle claims of unreasonable search (see, e.g., Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People v. Johnson, supra note 51).
59 442 U.S. 735 (1979). The earlier ruling in United States v. Miller, 425 U.S. 435 (1976), found no legitimate privacy expectation over the contents of checks and bank deposit slips. Unlike in the United States, however, Philippine law treats bank deposits "as of an absolutely confidential nature" (For deposits in local currency, see Section 2 of Republic Act No. 1405, as amended. For deposits in foreign currency, see Section 8 of Republic Act No. 6426, as amended).
60 Id. at 744.
61 Constitution (1935), Article III, Section 1(5) ("The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order require otherwise."); Constitution (1973), Article III, Section 4(1) ("The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety and order require otherwise."); Constitution (1987), Article III, Section 3(1) ("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."). The inclusion of the phrase "as prescribed by law" in the 1987 Constitution indicates heightened protection to the right, removing the executive exemption to the guarantee (on the ground of public safety or order).
62 The protection afforded by Section 3(1), Article III of the Constitution to the privacy of communication and correspondence is supplemented by the Rule of the Writ of Habeas Data, effective 2 February 2008, giving judicial relief to "any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the x x x correspondence of the aggrieved party" (Section 1). If the writ lies, the court hearing the application for the writ "shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information x x x." (Section 16).
63 Klayman v. Obama, 2013 U.S. Dist. LEXIS 176928.
64 Id. at 84-85 (internal citations omitted).
65 Panel’s Report at 744.
66 Id. at 111-112.
67 I J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 135, citing 1971 Constitutional Convention, Session of 25 November 1972.
68 Republic Act No. 4200.
69 Under the Electronic Communications Privacy Act, codified in 18 USC § 3121(a) which provides: "In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)." (Emphasis supplied)
70 18 USC § 3121 (c) which provides: "Limitation.— A government agency authorized to install and use a pen register or trap and trace device under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications." (Emphasis supplied)
71 18 USC § 3123(a) (2) which provides: "State investigative or law enforcement officer.— Upon an application made under section 3122 (a)(2), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." (Emphasis supplied)
72 Composed of eleven district court judges appointed by the Chief Justice of the U.S. Supreme Court.
73 Foreign Intelligence Surveillance Act, codified at 50 USC § 1804(a)(3), 1805(a)(2).
74 50 USC § 1861(b)(2)(A).
75 50 USC § 1861(a)(2)(A).
76 Under the first paragraph of Section 12 which provides: "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." (Emphasis supplied)
77 Decision, p. 33.
78 While the U.S. law has been criticized as turning courts into "rubber stamps" which are obliged to issue the order for the installation of recording devices once the applicant law enforcement officer certifies that the information to be recorded is relevant to an ongoing criminal investigation (see Slobogin, Transaction Investigation at 154-155), the objection relates to the degree of judicial participation, not to the law’s structure.
79 Costas Pitas, Report: US Monitored the Phone Calls of 35 World Leaders, REUTERS http://worldnews.nbcnews.com/_news/2013/10/24/21124561-report-us-monitored-the-phone-calls-of-35-world-leaders (last visited on 16 December 2013).
80 Supra note 63 at 114-115 (internal citations omitted).
81 Supra note 63 at 109 (emphasis supplied).
82 Dan Roberts, Patriot Act Author Prepares Bill to Put NSA Bulk Collection ‘Out of Business,’ THE GUARDIAN, 10 October 2013 http://www.theguardian.com/world/2013/oct/10/nsa-surveillance-patriot-act-author-bill; Andrew Raferty, Obama: NSA Reforms Will Give Americans 'More Confidence' in Surveillance Programs, NBC NEWS, http://nbcpolitics.nbcnews.com/_news/2013/12/05/21776882-obama-nsa-reforms-will-give-americans-more-confidence-in-surveillance-programs (last visited on 16 December 2013).
83 "Global Government Surveillance Reform," http://reformgovernmentsurveillance.com/ (last visited on 16 December 2013).
84 Panel’s Report at 27.
85 Id. at 109-111 (internal citations omitted).
86 Id. at 25.
87 Id. at 26.
88 Supra note 1.
89 World Writers Demand UN Charter to Curb State Surveillance, AGENCE FRANCE-PRESSE, 10 December 2013, http://www.globalpost.com/dispatch/news/afp/131210/world-writers-demand-un-charter-curb-state-surveillance.
90 Section 3(e), RA I 0175.
91 Chavez v. Gonzales, 569 Phil. 155, 237 (2008), Carpio, J, concurring.
92 Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529, 575-578 (1996) (Mendoza, J., Separate Opinion)
The Lawphil Project - Arellano Law Foundation
DISSENTING AND CONCURRING OPINION
SEPARATE CONCURRING OPINION
BRION, J.:
A. Concurrences & Dissents
Technology and its continued rapid development in the 21st century have been pushing outward the boundaries of the law, compelling new responses and the redefinition of fundamental rights from their original formulation; enlarging the need for, and the means of, governmental regulation; and more importantly, sharpening the collision between the individual’s exercise of fundamental rights and governmental need for intervention.
In this kind of collision, the Court – as constitutionally designed – finds itself in the middle, balancing its duty to protect individuals’ exercise of fundamental rights, with the State’s intervention (through regulation and implementation) in the performance of its duty to protect society. It is from this vantage point that the Court, through the ponencia, closely examined the Cybercrime prevention Act (Cybercrime Law) and the validity of the various provisions the petitioners challenged.
I write this Separate Concurring Opinion to generally support the ponencia, although my vote may be qualified in some provisions or in dissent with respect to others. In line with the Court’s "per provision" approach and for ease of reference, I have tabulated my votes and have attached the tabulation and explanation as Annex "A" of this Separate Opinion.
This Opinion likewise fully explains my vote with a full discussion of my own reasons and qualifications in the areas where I feel a full discussion is called for. I am taking this approach in Section 12 of the Cybercrime Law in my vote for its unconstitutionality. My qualifications come, among others, in terms of my alternative view that would balance cybercrime law enforcement with the protection of our citizenry’s right to privacy.
I concur with the ponencia’s finding that cyber-libel as defined in Section 4(c)(4) of the Cybercrime Law does not offend the Constitution. I do not agree, however, with the ponencia’s ultimate conclusion that the validity is "only with respect to the original author of the post" and that cyber-libel is unconstitutional "with respect to others who simply receive the post and react to it."
I believe that the constitutional status of cyber-libel hinges, not on Section 4(c)(4), but on the provisions that add to and qualify libel in its application to Internet communications. For example, as the ponencia does, I find that Section 51 of the Cybercrime Law (which penalizes aiding, abetting or attempting to commit a cybercrime) is unconstitutional for the reasons fully explained below, and should not apply to cyber-libel.
I likewise agree with Chief Justice Sereno’s point on the unconstitutionality of applying Section 6 of the Cybercrime Law (which penalizes crimes committed through information communications technology) and impose on libel a penalty one degree higher.
Further, I join Justice Carpio’s call to declare Article 354 of the Revised Penal Code unconstitutional when applied to libellous statements committed against public officers and figures, and to nullify the application of Section 7 of the Cybercrime Law to cyber-libel.
On the other content-related offenses in the Cybercrime Law, I concur with the ponencia in upholding the constitutionality of Section 4(c)(1) on cybersex and Section 4(c)(2) on child pornography committed through computer systems, and in striking down as unconstitutional Section 4(c)(3) for violating the freedom of speech.
I also agree that Section 52 of the Cybercrime Law, in so far as it punishes aiding, abetting or attempting to commit online commercial solicitation, cyber-libel and online child pornography, violates the Constitution.
Lastly, I partially support the ponencia’s position that Section 193 of the Cybercrime Law (which empowers the Secretary of the Department of Justice to restrict or block access to computer data found to be in violation of its provisions) is unconstitutional for violating the right to freedom of expression.
B. My Positions on Cyber-libel
B.1. The Core Meaning and
Constitutionality of Section 4(c)(4)
Based on a facial examination of Section 4(c)(4) of the Cybercrime Law, I find no reason to declare cyber-libel or the application of Section 355 of the Revised Penal Code (that penalizes libel made in print and other forms of media, to Internet communications) unconstitutional.
Laws penalizing libel normally pit two competing values against each other – the fundamental right to freedom of speech on one hand, and the state interest’s to protect persons against the harmful conduct of others. The latter conduct pertains to scurrilous speech that damages the reputation of the person it addresses. Jurisprudence has long settled this apparent conflict by excluding libelous speech outside the ambit of the constitutional protection.4 Thus, the question of whether a libelous speech may be penalized by law – criminally or civilly – has already been answered by jurisprudence in the affirmative.
Article 355 of the Revised Penal Code penalizes "libel5 committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means." Section 4(c)(4) of the Cybercrime Law merely extends the application of Article 355 to "communications committed through a computer system, or any other similar means which may be devised in the future." It does not, by itself, redefine libel or create a new crime – it merely adds a medium through which libel may be committed and penalized.
Parenthetically, this medium – under the statutory construction principle of ejusdem generis – could already be included under Article 355 through the phrase "any similar means."
Thus, I fully support the constitutionality of Section 4(c)(4) as it stands by itself; its intended effect is merely to erase any doubt that libel may be committed through Internet communications.6 However, my support stops there in light of the qualifications under the law’s succeeding provisions.
B.2. Sections 5, 6 & 7 of the Cybercrime Law
In the process of declaring internet defamatory statements within the reach of our libel law, the Cybercrime Law also makes the consequences of cyber-libel far graver than libelous speech in the real world. These consequences result from the application of other provisions in the Cybercrime Law that Congress, in the exercise of its policy-making power, chose to impose upon cybercrimes.
Thus, the law, through Section 5, opts to penalize the acts of aiding, abetting, and attempting to commit a cybercrime; increases the penalty for crimes committed by, through and with the use of information and communications technologies in Section 6; and clarifies that a prosecution under the Cybercrime Law does not ipso facto bar a prosecution under the Revised Penal Code and other special laws in Section 7.
In my view, the application of these provisions to cyber-libel unduly increases the prohibitive effect of libel law on online speech, and can have the effect of imposing self-censorship in the Internet and of curtailing an otherwise robust avenue for debate and discussion on public issues. In other words, Section 5, 6 and 7 should not apply to cyber-libel, as they open the door to application and overreach into matters other than libelous and can thus prevent protected speech from being uttered.
Neither do I believe that there is sufficient distinction between libelous speech committed online and speech uttered in the real, physical world to warrant increasing the prohibitive impact of penal law in cyberspace communications.
The rationale for penalizing defamatory statements is the same regardless of the medium used to communicate it. It springs from the state’s interest and duty to protect a person’s enjoyment of his private reputation.7 The law recognizes the value of private reputation and imposes upon him who attacks it – by slanderous words or libelous publications – the liability to fully compensate for the damages suffered by the wronged party.8
I submit that this rationale did not change when libel was made to apply to Internet communications. Thus, cyber-libel should be considered as the State’s attempt to broaden the protection for a person’s private reputation, and its recognition that a reputation can be slandered through the Internet in the same way that it can be damaged in the real world.9
A key characteristic of online speech is its potential to reach a wider number of people than speech uttered in the real world. The Internet empowers persons, both public and private, to reach a wider audience – a phenomenon some legal scholars pertain to as "cyber-reach."10 Cyber-reach increases the number of people who would have knowledge of a defamatory statement – a post published by a person living in the Philippines, for instance, can reach millions of people living in the United States, and vice versa. It could thus be argued that an increase in the audience of a libelous statement made online justifies the inhibitive effect of Section 5, 6, and 7 on online speech.
I find this proposition to be flawed. Online speech has varying characteristics, depending on the platform of communications used in the Internet. It does not necessarily mean, for instance, that a libelous speech has reached the public or a wider audience just because it was communicated through the Internet. A libelous statement could have been published through an e-mail, or through a private online group, or through a public website – each with varying degrees in the number of people reached.
I also find it notable that the publicity element of libel in the Revised Penal Code does not take into consideration the amount of audience reached by the defamatory statement. For libel prosecution purposes, a defamatory statement is considered published when a third person, other than the speaker or the person defamed, is informed of it.11 Libelous speech may be penalized when, for instance, it reaches a third person by mail,12 or through a television program,13 or through a newspaper article published nationwide.14 All these defamatory imputations are punishable with the same penalty of prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos or both.15
Penalizing libelous speech committed through the Internet with graver penalties and repercussions because it allegedly reaches a wider audience creates an unreasonable classification between communications made through the Internet and in the real, physical world, to the detriment of online speech. I find no basis to treat online speech and speech in the real world differently on account of the former’s cyber-reach because Article 355 of the Revised Penal Code does not treat libel committed through various forms of media differently on account of the varying numbers of people they reach.
In other words, since Article 355 of the Revised Penal Code does not distinguish among the means of communications by which libel is published, the Cybercrime Law, which merely adds a medium of communications by which libel may be committed, should also not distinguish and command a different treatment than libel in the real world.
Notably, the enumeration of media in Article 355 of the Revised Penal Code have for their common characteristic, not the audience a libelous statement reaches, but their permanent nature as a means of publication.16 Thus, cyber-libel’s addition of communications through the Internet in the enumeration of media by which libel may be committed is a recognition that it shares this common characteristic of the media enumerated in Article 355 of the RPC, and that its nature as a permanent means of publication injures private reputation in the same manner as the enumeration in Article 355 does.
Neither should the ease of publishing a libelous material in the Internet be a consideration in increasing the penalty for cyber-libel. The ease by which a libelous material may be published in the Internet, to me, is counterbalanced by the ease through which a defamed person may defend his reputation in the various platforms provided by the Internet - a means not normally given in other forms of media.
Thus, I agree with the ponencia that Section 517 of the Cybercrime Law, which penalizes aiding, abetting, or attempting to commit any of the cybercrimes enumerated therein, is unconstitutional in so far as it applies to the crime of cyber-libel. As the ponente does, I believe that the provision, when applied to cyber-libel, is vague and can have a chilling effect on otherwise legitimately free speech in cyberspace.
I further agree with the Chief Justice’s argument that it would be constitutionally improper to apply the higher penalty that Section 6 imposes to libel.
Section 618 qualifies the crimes under the Revised Penal Code and special laws when committed by, through and with the use of information and communications technologies, and considers ICT use as an aggravating circumstance that raises the appropriate penalties one degree higher. As Chief Justice Sereno points out, Section 6 not only considers ICT use to be a qualifying aggravating circumstance, but also has the following effects: first, it increases the accessory penalties of libel; second, it disqualifies the offender from availing of the privilege of probation; third, it increases the prescriptive period for the crime of libel from one year to fifteen years, and the prescriptive period for its penalty from ten years to fifteen years; and fourth, its impact cannot be offset by mitigating circumstances.
These effects, taken together, unduly burden the freedom of speech because the inhibiting effect of the crime of libel is magnified beyond what is necessary to prevent its commission.
I also agree with Justice Carpio that the application of Section 7 to cyberlibel should be declared unconstitutional. By adopting the definition of libel in the Revised Penal Code, Section 4(c)(4)’s definition of cyberlibel penalizes the same crime, except that it is committed through another medium enumerated in Article 355. Thus, Section 7 exposes a person accused of uttering a defamatory statement to multiple prosecutions under the Cybercrime Law and the Revised Penal Code for the same utterance. This creates a significant chill on online speech, because the gravity of the penalties involved could possibly compel Internet users towards self-censorship, and deter otherwise lawful speech.
B.3. Article 354 of the Revised Penal Code
Lastly, I join in Justice Carpio’s call for the Court to declare Article 354 of the Revised Penal Code as unconstitutional in so far as it applies to public officers and figures.
The petitions against the Cybercrime Law provide us with the opportunity to clarify, once and for all, the prevailing doctrine on libel committed against public officers and figures. The possibility of applying the presumed malice rule against this kind of libel hangs like a Damocles sword against the actual malice rule that jurisprudence established for the prosecution of libel committed against public officers and figures.
The presumed malice rule embodied in Article 35419 of the Revised Penal Code provides a presumption of malice in every defamatory imputation, except under certain instances. Under this rule, the defamatory statement would still be considered as malicious even if it were true, unless the accused proves that it was made with good and justifiable intentions.
Recognizing the importance of freedom of speech in a democratic republic, our jurisprudence has carved out another exception to Article 354 of the Revised Penal Code. Through cases such as Guingguing v. Court of Appeals20 and Borjal v. Court of Appeals,21 the Court has applied the actual malice rule in libel committed against public officers and figures. This means that malice in fact is necessary for libel committed against public officers and figures to prosper, i.e., it must be proven that the offender made the defamatory statement with the knowledge that it is false or with reckless disregard of whether it is false or not. As the Court held in Guinguing, adopting the words in New York Times v. Sullivan:22: "[w]e have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."
I agree with Justice Carpio’s point regarding the necessity of a concrete declaration from the Court regarding Article 354’s unconstitutional application to libelous speech against public officers and officials. To neglect our duty to clarify what the law would amount to and leave a gap in the implementation of our laws on libel, in the words of Justice Carpio, would "leave[s] fundamental rights of citizens to freedom of expression to the mercy of the Executive’s prosecutorial arm whose decision to press charges depends on its own interpretation of the penal provision’s adherence to the Bill of Rights."
This need for a clear signal from the Court has become even more pronounced given the current nature of the Internet – now a vibrant avenue for dialogue and discussion on matters involving governance and other public issues, with the capacity to allow ordinary citizens to voice out their concerns to both the government and to the public in general.
B.4. Summation of Constitutionality of Section 4(c)(4)
With the four provisions – i.e., Section 5, Section 6 and Section 7 of the Cybercrime Law and Article 354 of the Revised Penal Code, removed from cyber-libel, Section 4(c)(4) would present a proper balance between encouraging freedom of expression and preventing the damage to the reputation of members of society. Conversely, the presence of either one of these three provisions could tilt this delicate balance against freedom of expression, and unduly burden the exercise of our fundamental right. Thus, hand in hand with the recognition of the constitutionality of Section 4(c)(4) of the Cybercrime Law under a facial challenge, the four mentioned provisions should likewise be struck down as unconstitutional.
C. My Positions on Section 12 of the Cybercrime Law
In agreeing with the ponencia’s conclusion regarding the unconstitutionality of Section 12, I begin by emphasizing the point that no all-encompassing constitutional right to privacy exists in traffic data. I stress the need to be sensitive and discerning in appreciating traffic data as we cannot gloss over the distinctions between content data and traffic data, if only because of the importance of these distinctions for law enforcement purposes.
The right to privacy over the content of internet communications is a given, as recognized in many jurisdictions.23 Traffic data should likewise be recognized for what they are – information necessary for computer and communication use and, in this sense, are practically open and freely-disclosed information that law enforcers may examine.
But beyond all these are information generated from raw traffic data on people’s activities in the Internet, that are collected through real-time extended surveillance and which may be as private and confidential as content data. To my mind, the grant to law enforcement agents of the authority to access these data require a very close and discerning examination to determine the grant’s constitutionality.
I justify my position on the unconstitutionality of Section 12 as it patently lacks proper standards guaranteeing the protection of data that should be constitutionally-protected. In more concrete terms, Section 12 should not be allowed – based solely on law enforcement agents’ finding of ‘due cause’ – to serve as authority for the warrantless real-time collection and recording of traffic data.
Lastly, I clarify that the nullification of Section 12 does not absolutely bar the real-time collection of traffic data, as such collection can be undertaken upon proper application for a judicial warrant. Neither should my recommended approach in finding the unconstitutionality of Section 12 prevent Congress, by subsequent legislation, from authorizing the conduct of warrantless real-time collection of traffic data provided that proper constitutional safeguards are in place for the protection of affected constitutional rights.
C.1 The constitutional right to privacy in Internet communications data
The right to privacy essentially means the right to be let alone and to be free from unwarranted government intrusion.24 To determine whether a violation of this right exists, a first requirement is to ascertain the existence of a reasonable expectation of privacy that the government violates. The reasonable expectation of privacy can be made through a two-pronged test that asks: (1) whether, by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. Customs, community norms, and practices may, therefore, limit or extend an individual’s "reasonable expectation of privacy."25 The awareness of the need for privacy or confidentiality is the critical point that should dictate whether privacy rights exist.
The finding that privacy rights exist, however, is not a recognition that the data shall be considered absolutely private;26 the recognition must yield when faced with a compelling and fully demonstrated state interest that must be given primacy. In this exceptional situation, the balance undeniably tilts in favor of government access or intrusion into private information. Even then, however, established jurisprudence still requires safeguards to protect privacy rights: the law or rule allowing access or intrusion must be so narrowly drawn to ensure that other constitutionally-protected rights outside the ambit of the overriding state interests are fully protected.27
The majority of the Court in Ople v. Torres,28 for instance, found the repercussions and possibilities of using biometrics and computer technologies in establishing a National Computerized Identification Reference System to be too invasive to allow Section 4 of Administrative No. 308 (the assailed regulation which established the ID system) to pass constitutional muster. According to the majority, the lack of sufficient standards in Section 4 renders it vague and overly broad, and in so doing, was not narrowly fitted to accomplish the state’s objective. Thus, it was unconstitutional for failing to ensure the protection of other constitutionally-protected privacy rights.
Other governmental actions that had been declared to be constitutionally infirm for failing the compelling state interest test discussed above include the city ordinance barring the operation of motels and inns within the Ermita-Malate area in City of Manila v. Laguio Jr.,29 and the city ordinance prohibiting motels and inns from offering short-time admission and pro-rated or "wash up" rates in White Light Corporation v. City of Manila.30 In both cases, the Court found that the city ordinance overreached and violated the right to privacy of motel patrons, both single and married.
C.2 Traffic and Content Data
The Internet serves as a useful technology as it facilitates communication between people through the application programs they use. More precisely, the Internet is "an electronic communications network that connects computer networks and organizational computer facilities around the world."31 These connections result in various activities online, such as simple e-mails between people, watching and downloading of videos, making and taking phone calls, and other similar activities, done through the medium of various devices such as computers, laptops, tablets and mobile phones.32
Traffic data refer to the computer data generated by computers in communicating to each other to indicate a communication’s origin, destination, route, time, date, size, duration or type of underlying service.33 These data should be distinguished from content data which contain the body or message of the communications sent.34 Traffic data do not usually indicate on their face the actual identity of the sender of the communication; the content data, on the other hand, usually contain the identity of sender and recipient and the actual communication between them.
It must also be appreciated that as the technology now exists, data (both traffic and content) are usually sent through the Internet through a packet-switching network. The system first breaks down the materials sent into tiny packets of data which then pass through different networks until they reach their destination where they are reassembled into the original data sent.
These tiny packets of data generally contain a header and a payload. The header contains the overhead information about the packet, the service and other transmission-related information. It includes the source and destination of the data, the sequence number of the packets, and the type of service, among others. The payload, on the other hand, contains the actual data carried by the packet.35 Traffic data may be monitored, recorded and collected from the headers of packets.36
I hold the view, based on the above distinctions and as the ponencia did, that no reasonable expectation of privacy exists in traffic data as they appear in the header, as these are data generated in the course of communications between or among the participating computers or devices and intermediary networks. The absence of any expectation is based on the reality that the traffic data: are open as they pass through different unknown networks;37 cannot be expected to be private as they transit on the way to their intended destination; and are necessarily identified as they pass from network to network. In contrast, the content data they contain remain closed and undisclosed, and do not have to be opened at all in order to be transmitted. The unauthorized opening of the content data is in fact a crime penalized under the Cybercrime Law.38
For a clearer analogy, traffic data can be likened to the address that a person sending an ordinary mail would provide in the mailing envelope, while the size of the communication may be compared to the size of the envelope or package mailed through the post office. There can be no reasonable expectation of the privacy in the address appearing in the envelope and in the size of the package as it is sent through a public network of intermediary post offices; they must necessarily be read in these intermediary locations for the mail to reach its destination.
A closer comparison can be drawn from the number dialed in using a telephone, a situation that the US Supreme Court had the opportunity to pass upon in Smith v. Maryland39 when it considered the constitutionality of the Pen Register Act.40 The US Court held that the Act does not violate the Fourth Amendment (the right to privacy) because no search is involved; there could be no reasonable expectation of privacy in the telephone numbers that a person dials. All telephone users realize that they must "convey" phone numbers to the telephone company whose switching equipment serve as medium for the completion of telephone calls.
As in the case of the regular mail and the use of numbers in communicating by telephone, privacy cannot be reasonably expected from traffic data per se, because their basic nature – data generated in the course of sending communications from a computer as communications pass through a public network of intermediate computers.
To complete the comparison between transfer data and content data, an individual sending an e-mail through the Internet would expect at least the same level of privacy in his email’s content as that enjoyed by the mail sent through the post office or in what is said during a telephone conversation. Expectations regarding the confidentiality of emails may in fact be higher since their actual recipients are not identified by their actual names but by their email addresses, in contrast with regular mails where the addresses in the envelopes identify the actual intended recipients and are open to the intermediary post offices through which they pass.
At the same level of privacy are the information that an Internet subscriber furnishes the Internet provider. These are also private data that current data privacy laws41 require to be accurate under the guarantee that the provider would keep them secure, protected, and for use only for the purpose for which they have been collected.
For instance, a customer buying goods from a website used as a medium for purchase or exchange, can expect that the personal information he/she provides the website would only be used for facilitating the sales transaction.42 The service provider needs the customer’s consent before it can disclose the provided information to others; otherwise, criminal and civil liability can result.43 This should be a reminder to service providers and their staff who sell telephone numbers and addresses to commercial companies for their advertising mailing lists.
Notably, social networking websites allow its subscribers to determine who would view the information the subscribers provide, i.e., whether the information may be viewed by the public in general, or by a particular group of persons, or only by the subscriber.44 Like the contents of Internet communications, the user and the public in general expect these information to be private and confidential.
In the context of the present case where the right to privacy is pitted against government intrusion made in the name of public interest, the intrinsic nature of traffic data should be fully understood and appreciated because a miscalibration may carry profound impact on one or the other.
In concrete terms, casting a net of protection wider than what is necessary to protect the right to privacy in the Internet can unduly hinder law enforcement efforts in combating cybercrime. Raw traffic data raise no expectation of privacy and should not be beyond the reach of law enforcers.
At the opposite end, constitutionally allowing the unregulated inspection of Section 12 may unwittingly allow government access or intrusion into data greater than what the public recognizes or would allow, resulting in the violation of privacy rights.
A miscalibration may immediately affect congressional action addressing the balancing between the privacy rights of individuals and investigative police action. The recognition of the right to privacy over raw traffic data may curtail congressional action by practically requiring Congress to increase the required governmental interest not only for the real-time surveillance and collection of traffic data, but also for simple police investigative work. The effect would of course be most felt at the level of field law enforcement where officers would be required to secure a higher level of compelling governmental interest simply to look at raw traffic data even on a non-surveillance situation. Using the above email analogy, it may amount to requiring probable cause to authorize law enforcement to look at an address in a mailing envelope coursed through the public post office.
Not to be forgotten is the reality that information and communication technology – particularly on the transmission, monitoring and encryption of data – is continuously evolving with no foreseeable end in sight. In the words of Justice Scalia in Kyllo v. United States,45 a case pitting the right to privacy with the law enforcement’s use of thermal imaging devices: "the rule we adopt must take account of more sophisticated systems that are already in use or in development."46
This Court, made aware of this reality, must similarly proceed with caution in exercising its duty to examine whether a law involving the regulation of computers and cyber communications transgresses the Constitution. If we must err, we should do so in favor of slow and carefully calibrated steps, keeping in mind the possible and foreseeable impact of our decisions on future technology scenarios and on our jurisprudence. After all, our constitutionally-designed role is merely to interpret policy as expressed in the law and rules, not to create policy.
C.3 Data collected from Online Activities – the midway point between traffic data and content data.
While traffic data can practically be considered as disclosed (and consequently, open and non-confidential) data, they can – once collected and recorded over a period of time, or when used with other technologies – reveal information that the sender and even the general public expect to be private and confidential.
This potential use of raw traffic data serves as the limit for the analogy between traffic data and the addresses found in envelopes of regular mails. Mailed letters exist in the physical world and, unless coursed through one central post office, can hardly be monitored for a recognizable pattern of activities that can yield significant data about the writer or the recipient.
In contrast, the Internet allows the real-time sending and receiving of information at any given time, to multiple recipients who may be sending and receiving their own information as well. This capability and the large amount of traffic that ensues in real time open wide windows of opportunity for analysis of the ensuing traffic for trends and patterns that reveal information beyond the originally collected and recorded raw traffic data. For example, the analysis may provide leads or even specifically disclose the actual geographical location of the sender or recipient of the information, his online activity, the websites he is currently browsing, and even possibly the content of the information itself.
It is at this point that the originally raw traffic data mass cross over and partake of the nature of content data that both the individual and the public expect to be private. Evidently, privacy interests arise, not from the raw data themselves, but from the resulting conclusions that their collection and recording yield. Thus, violation of any existing constitutional right starts at this point. From the point of view of effective constitutional protection, the trigger is not at the point of the private information end result, but at the point of real-time collection and recording of data that, over time and with analysis, yield private and confidential end result. In other words, it is at the earliest point that safeguards must be in place.
That this aspect of Internet use may no longer simply be an awaited potential but is already a reality now with us, can be discerned from what computer pundits say about the application of proper traffic analysis techniques to the traffic data of phone calls conducted through the Internet (also known as Voice Over Internet Protocol or VOIP). They claim that this analysis can reveal the language spoken and the identity of the speaker, and may even be used to reconstruct the actual words spoken during the phone conversation.47 Others, on the other hand, have tested the possibility of inferring a person’s online activities for short periods of time through traffic data analysis.48
Recent developments in the Internet, such as the rise of Big Data49 and the Internet of Things,50 also serve as evidence of the realization of these possibilities, as people share more and more information on how they conduct their daily activities in the Internet and on how these information are used to perform other tasks. Right now, wireless signal strength in multiple monitoring locations may be used to accurately estimate a user’s location and motion behind walls.51 With the advent of the Internet of Things, which equips devices with sensors that allow the direct gathering of information in the physical world for transmission to the Internet, even seemingly innocuous traffic data, when collected, may possibly reveal even personal and intimate details about a person and his activities.
Thus, I believe it indisputable that information gathered from purposively collected and analyzed raw traffic data, now disclose information that the Internet user never intended to reveal when he used the Internet. These include the language used in a phone conversation in the Internet, the identity of the speaker, the content of the actual conversation, as well as a person’s exact location inside his home. From this perspective, these data, as collected and/or analyzed from online activities, are no different from content data and should likewise be protected by the right to privacy.
C.4 Deficiencies of Section 12
Section 12 of the Cybercrime Law authorizes law enforcement agents to collect and record in real-time traffic data associated with specified communications, under the following terms:
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 or 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.
The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.
I have no doubt that the state interest that this section seeks to protect is a compelling one. This can be gleaned from Section 2 of the Cybercrime Law which clearly sets out the law’s objective – to equip the State with sufficient powers to prevent and combat cybercrime. The means or tools to this objective, Section 12 among them, would enable our law enforcers to investigate incidences of cybercrime, and apprehend and prosecute cybercriminals. According to the Department of Justice, nearly nine out of ten Filipino Internet users had been victims of crimes and malicious activities committed online. Contrast this to the mere 2,778 cases of computer crimes referred to the Anti-Transnational Crime Division (ATCD) of the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police (PNP) from 2003 to 2012,52 to get a picture of just how vulnerable the citizenry is to computer-related crimes.
But bad might the situation be and as already mentioned in passing above, a demonstrated and compelling state interest effectively serves only as starting point and basis for the authority to grant collection and recording authority to state agents faced with clearly established right to privacy. In addition to and as equally important as the invoked compelling state interest, is the requirement that the authorizing law or rule must provide safeguards to ensure that no unwarranted intrusion would take place to lay open the information or activities not covered by the state interest involved; the law or rule must be narrowly drawn to confine access to what the proven state interests require.
I submit that, on its face, Section 12 fails to satisfy this latter constitutional requirement. In Section 12 terms, its "due cause" requirement does not suffice as the safeguard that the Constitution requires.
My examination of Section 12 shows that it properly deals with the various types of data that computer communication generates, i.e., with traffic data per se, with data other than the defined traffic data (thus, of content data), and with the real-time collection of these data over time. The law, however, is wanting on the required safeguards when private data are accessed.
True, traffic data per se does not require any safeguard or measure stricter than the "due cause" that the law already requires, while content data can be accessed only on the basis of a judicial warrant. The real time collection and recording of traffic data and its "due cause" basis, however, suffer from fatal flaws.
The law’s "due cause" standard is vague in terms of the substance of what is "due cause" and the procedure to be followed in determining the required "cause". The law is likewise overly broad so that real-time monitoring of traffic data can effectively overreach its allowable coverage and encroach into the realm of constitutionally-protected activities of Internet users, specifically, data that a cybercrime may not even address.
Consider, in this regard, that as worded, law enforcement agents, i.e., members of the National Bureau Investigation (NBI) and the Philippine National Police (PNP),53 practically have carte blanche authority to conduct the real-time collection and recording of traffic data at anytime and on any Internet user, given that the law does not specifically define or give the parameters of the purpose for which law enforcement authorities are authorized to conduct these intrusive activities. Without sufficient guiding standards, the "due cause" basis in effect allows law enforcement agents to monitor all traffic data. This approach, to my mind, may even allow law enforcement to conduct constitutionally-prohibited fishing expeditions for violations and their supporting evidence.
Additionally, while Section 2 empowers the State to adopt sufficient powers to conduct the detection, investigation and prosecution of cybercrime as an expressed policy, Section 12, however, does not provide a standard sufficient to render enforcement rules certain or determinable; it also fails to provide guiding particulars on the real-time monitoring of traffic data. Assuming that the Cybercrime Law contemplates that real-time collection of traffic data would assist in criminal investigations, the provision does not provide any specified or determinable trigger for this activity – should collection and recording be connected with criminal investigation in general? Is it necessary that a cybercrime has already been committed, or could it be used to prevent its commission? Would it only apply to investigations on cybercrime, or would it include investigations on crimes in the physical world whose aspects have seeped into the Internet?
In the absence of standards, guidelines or clean definitions, the ‘due cause’ requirement of Section 12 fatally opens itself to being vague as it does not even provide the context in which it should be used. It merely provides that the real-time monitoring would be related to ‘specified communications’ without mentioning as to what these communications pertain to, how these communications will be specified, and as well as the extent of the specificity of the communications.
Section 12 likewise does not provide for the extent and depth of the real-time collection and recording of traffic data. It does not limit the length of time law enforcement agents may conduct real-time monitoring and recording of traffic data, as well as the allowable contours by which a specified communication may be monitored and recorded. In other words, it does not state how long the monitoring and recording of the traffic data connected to a specified communication could take place, how specific a specified communication should be, as well as the extent of the association allowable.
The absolute lack of standards in the collection and recording of traffic data under Section 12 in effect negates the safeguards under Section 13 of the Cybercrime Law. Section 13 obligates internet service providers to collect and store traffic data for six months, which data law enforcement agents can only access based on a judicial order under Section 14. Properly understood, Section 13 is a recognition that traffic data once collected in depth and for a considerable period of time, would produce information that are private. But because Section 12 does not specify the length and extent of the real-time collection, monitoring and storage of traffic data, it in effect skirts the judicial warrant requirement before any data may be viewed under
Section 13. The limitation in this section also does not also apply if the law enforcement agency has its own collection and recording facilities, a possibility that in these days is not farfetched.
Neither does Section 12 as worded sufficiently limit the information that would be collected and recorded in real-time only to traffic data. The lack of standards in Section 12 regarding the extent and conduct of the real-time collection and recording of traffic data effectively allows for its collection in bulk, which, as earlier pointed out, reveals information that are private. The lack of standards also does not prevent the possibility of using technologies that translates traffic data collected in real-time to content data or disclose a person’s online activities.
Significantly, the Cybercrime Law’s omissions in limiting the scope and conduct of the real-time collection and recording of traffic data cannot be saved by statutory construction; neither could it be filled-in by implementing rules and regulations. We can only construe what the law provides, harmonize its provisions and interpret its language. We cannot, no matter how noble the cause, add to what is not provided in the law.
The same limitation applies to law enforcement agents in the implementation of a law – assuming they have been delegated to provide for its rules and regulations. They cannot, in fixing the details of a law’s implementation, legislate and add to the law that they seek to implement.
Given the importance of Section 12 in cybercrime prevention and its possible impact on the right to privacy, we cannot, in interpreting a law, usurp what is rightfully the Congress’s duty and prerogative to ensure that the real-time collection of traffic data does not overreach into constitutionally-protected activities. In other words, it is Congress, through law, which should draw the limits of traffic data collection. Our duty in the Court comes only in determining whether these limits suffice to meet the principles enshrined in the Constitution.
In sum, as worded, the authorization for a warrantless real-time collection and recording of traffic data is not narrowly drawn to ensure that it would not encroach upon the privacy of Internet users online. Like A.O. No. 308 in Ople v. Torres, Section 12 of the Cybercrime threatens the right to privacy of our people, and should thus be struck down as unconstitutional.
D. Implications for law enforcement of the unconstitutionality of Sec. 12
The Court has, in addition to its constitutional duty to decide cases and correct jurisdictional errors, the duty to provide guidance to the bench and bar.54 It is in consideration of this duty, as well as the pressing need for balance between the investigation and prosecution of cybercrimes and the right to privacy, that I discuss the repercussions of my proposed ruling on law enforcement.
The declaration of the unconstitutionality of Section 12 in the manner framed by the Court, should not tie the hands of Congress in enacting a replacement provision empowering the conduct of warrantless real-time collection of traffic data by law enforcement agents. This grant of power should of course avoid the infirmities of the present unconstitutional provision by providing for standards and safeguards to protect private data and activities from unwarranted intrusion.
I clarify as well that the unconstitutionality of Section 12 does not remove from the police the authority to undertake real-time collection and recording of traffic data as an investigation tool that law enforcement agents may avail of in the investigation and prosecution of criminal offenses, both for offenses involving cybercrime and ordinary crimes. Law enforcement agencies may still conduct these activities under their general powers, but with a prior judicial authorization in light of the nature of the data to be collected. To cite an example in today’s current crime situation, this tool may effectively be used against the drug menace whose leadership has so far evaded arrest and whose operations continue despite police interdiction efforts.
Notably, Section 24 of Republic Act No. 6975 empowers the Philippine National Police to enforce all laws and ordinances relative to the protection of lives and properties; maintain peace and order and take all necessary steps to ensure public safety; investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution; and to exercise the general powers to make arrest, search and seizure in accordance with the Constitution and pertinent laws.
Section 1 of Republic Act No. 157 as amended, on the other hand, mandates the National Bureau of Investigation to investigate crimes and other offenses against Philippine laws, assist, upon request, in the investigation or detection of crimes, and to establish and maintain an up-to-date scientific crime laboratory and to conduct researches in furtherance of scientific knowledge in criminal investigation.
These laws sufficiently empower the PNP and the NBI to make use of up-to-date equipment in the investigation of crimes and in the apprehension and prosecution of criminals, including cybercriminals. The PNP is particularly empowered to undertake search and seizure under RA 6975. The need for a judicial warrant does not need be a stumbling block in these efforts in the sensitive area of Internet data, as the grant of warrant is merely a question of the existence of a probable cause, proven of course according to the requirements of the Constitution.
E. The role of the courts in cybercrime prevention and prosecution
Internet has significantly changed the way crimes are committed, and has paved the way for the emergence of new crimes committed in a totally different plane: from the previous real, physical world, to the abstract, borderless plane of interconnected computers linked through the Internet.
In the same manner that technology unleashed these new threats to security and peace, it also devised new means to detect, apprehend and prosecute those who threaten society. The Cybercrime Law is notable in its aim to penalize these new threats, and in giving clear signals and actually empowering our law enforcement agents in the investigation of these cybercrimes, in the apprehension of cybercriminals, and in the prosecution of cases against them.
In the same manner likewise that our laws and law enforcement have been adapting to the threats posed by cybercrime, we in the judiciary must also rise up to the challenge of competently performing our adjudicative functions in the cyber world.
The judicial steps in cybercrime prosecution start as early as the investigation of cybercrimes, through the issuance of warrants necessary for real-time collection of traffic data, as well as the issuance of the orders for the disclosure of data retained by internet service providers.55 After these, courts also determine the probable cause for the arrest of suspects accused of committing cybercrimes. The suspect’s arrest would then lead to a trial that, depending on the suspect’s conviction or acquittal, could then go through the judiciary appellate process. During trial, pieces of evidence would be presented and testimonies heard, and trial courts would then exercise their constitutional duty to adjudicate the cases brought before them.
Judicial involvement in all these processes requires the handling members of the Judiciary to be computer literate, at the very least. We cannot fully grasp the methodologies and intricacies of cybercrimes unless we have a basic understanding of how the world of computers operates.
From the point of law, basic knowledge must be there to grasp how cybercrimes may be proven before us during trial, and what constitutes the evidentiary threshold that would allow us to determine, beyond reasonable doubt, that the person accused really did commit a cybercrime.
For instance, I agree with the Solicitor General’s observation that time is of the utmost essence in cybercrime law enforcement, as the breadth and speed of technology make the commission of these crimes and the subsequent destruction of its evidence faster and easier. To my mind, our current rules of procedure for the issuance of search warrants might not be responsive enough to effectively track down cybercriminals and obtain evidence of their crimes. Search warrants for instance, might be issued too late to seize evidence of the commission of a cybercrime, or may not properly describe what should be seized, among others.
Due to the highly-technical nature of investigating and prosecuting cybercrimes, as well as the apparent need to expedite our criminal procedure to make it more responsive to cybercrime law enforcement, I propose that special cybercrime courts be designated to specifically handle cases involving cybercrime. In addition, these cybercrime courts should have their own rules of procedure tailor-fitted to respond to the technical requirements of cybercrime prosecution and adjudication.
The designation of special cybercrime courts of course is not outside our power to undertake: Section 2156 of the Cybercrime Law grants the Regional Trial Courts jurisdiction over any violation of the Cybercrime Law, and provides that special cybercrime courts manned by specially trained judges should be designated. Section 5, Article VIII of the 1987 Constitution,57 on the other hand, empowers this Court to promulgate rules on the pleading, practice, and procedure in all courts.
As with every petition involving the constitutionality of a law, we seek to find the proper balance between protecting a society where each individual may lawfully enjoy his or her fundamental freedoms, and where the safety and security of the members of society are assured through proper regulation and enforcement. In the present petition, I agree with the ponencia that the Cybercrime Law is improperly tilted towards strengthening law enforcement, to the detriment of our society's fundamental right to privacy. This is highlighted by the law's position under Section 12 which, as discussed, goes beyond what is constitutionally permissible. Beyond this finding, however, we need to provide - within the limits of our judicial power, remedies that will still allow effective law enforcement in the cyber world. It is in these lights that I urge my colleagues in this Court to consider the immediate training and designation of specialized cybercrime courts and the drafting of their own rules of procedure.
As I mentioned in the opening statements of this Concurring Opinion, I have prepared a table for easy reference to my votes. This table is attached as Annex "A" and is made an integral part this Opinion.
ARTURO D. BRION
Associate Justice
Footnotes
1 Section 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to commit any of the offenses enumerated in this Act shall be held liable.
2 Section 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to commit any of the offenses enumerated in this Act shall be held liable.
3 Section 19. Restricting or Blocking Access to Computer Data. — 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.
4 Guinguing v. Court of Appeals, 508 Phil. 193, 197 – 198 (2005).
See: Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, p. 272;
In as early as 1909, our jurisprudence in US v. Sedano has recognized the constitutionality of libel, noting that "the provisions of the Constitution of the United States guaranteeing the liberty of the press, from which the provisions of the Philippine Bill were adopted, have never been held to secure immunity to the person responsible for the publication of libelous defamatory matter in a newspaper."
5 Libel, as defined by Article 353 of the Revised Penal Code as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
6 During the interpellations of the cybercrime bill before the Senate, Senator Edgardo J. Angara, the bill’s principal sponsor, pointed out that cyberspace is just a new avenue for publicizing or communicating a libellous statement which is subject to prosecution and punishment as defined by the Revised Penal Code. Senate Journal, December 12, 2011, available at http://www.gov.ph/2012/10/03/for-the-record-public-records-of-senate-deliberations-on-the-cybercrime-prevention-bill/
7 American Jurisprudence (Vol. 33, p. 292) explains that "Under the common-law theory, which is embodied in some of the statutory provisions on the subject, the criminality of a defamatory statement consist in the tendency thereof to provoke a breach of the peace," but, it adds, "many of the modern enactments, ... ignore this aspect altogether and make a libelous publication criminal if its tendency is to injure the person defamed, regardless of its effect upon the public."
The present Philippine law on libel conforms to this modern tendency. For a little digression on the present law of libel or defamation, let it be noted that the Revised Penal Code has absorbed libel under Act No. 277 and calumny and insult under the old Penal Code. (Commentaries on the Revised Penal Code, Guevarra, p. 764.) The new Penal Code includes "All kinds of attacks against honor and reputation, thereby eliminating once and for all the idle distinction between calumny, insult and libel."(Idem, p. 765.) People v. del Rosario, 86 Phil. 163, 165 – 166 (1950).
8 Worcester v. Ocampo, 22 Phil. 42, 73 – 74 (1912).
9 During the senate’s deliberations on the cybercrime bill, Senator Sotto asked Senator Angara if the bill also addresses internet libel or internet defamation. Senator Angara answered that the bill includes it as a crime, an actionable offense, because one can be defamed through Twitter or social media.
To the comment that one’s reputation can easily be ruined and damaged by posts and comments in social network sites, Senator Angara stated that under the proposed law, the offended party can sue the person responsible for posting such comments. Senate Journal, December 12, 2011, available at http://www.gov.ph/2012/10/03/for-the-record-public-records-of-senate-deliberations-on-the-cybercrime-prevention-bill/
10 One of the most striking aspects of cyberspace is that it "provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions." n1 This characteristic sharply contrasts with traditional forms of mass communication, such as television, radio, newspapers, and magazines, which require significant start-up and operating costs and therefore tend to concentrate communications power in a limited number of hands. Anyone with access to the Internet, however, can communicate and interact with a vast and rapidly expanding cyberspace audience. n2 As the Supreme Court opined in its recent landmark decision, Reno v. ACLU, n3 the Internet enables any person with a phone line to "become a pamphleteer" or "a town crier with a voice that resonates farther than it could from any soapbox." n4 Indeed, the Internet is "a unique and wholly new medium of worldwide human communication" n5 that contains content "as diverse as human thought." n6
The term "cyber-reach" can be used to describe cyberspace's ability to extend the reach of an individual's voice. Cyber-reach makes the Internet unique, accounts for much of its explosive growth and popularity, and perhaps holds the promise of a true and meaningful "free trade in ideas" that Justice Holmes imagined eighty years ago. Bill Mcswain, Developments in the Law - The Long Arm of Cyber-reach, 112 Harv. L. Rev. 1610 (1998).
11 Alcantara v. Ponce, 545 Phil. 678, 683 (2007).
12 US v. Grino, 36 Phil. 738 (1917); People v. Silvela, 103 Phil. 773 (1958).
13 People v. Casten, CA-G.R. No. 07924-CR, December 13, 1974.
14 Fermin v. People of the Philippines, 573 Phil. 12 (2008).
15 Article 355 of the Revised Penal Code
16 People v. Santiago, G.R. No. L-17663, May 30, 1962, 5 SCRA 231, 233 – 234.
17 Section 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to commit any of the offenses enumerated in this Act shall be held liable.
18 Section 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
19 Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
20 508 Phil. 193 (2005).
21 361 Phil. 3 (1999).
22 376 US 254.
23 209. The type of data that can be collected is of two types: traffic data and content data. ‘Traffic data’ is defined in Article 1 d to mean any computer data relating to a communication made by means of a computer system, which is generated by the computer system and which formed a part in the chain of communication, indicating the communication’s origin, destination, route, time, date, size and duration or the type of service. ‘Content data’ is not defined in the Convention but refers to the communication content of the communication; i.e., the meaning or purport of the communication, or the message or information being conveyed by the communication (other than traffic data).
210. In many States, a distinction is made between the real-time interception of content data and real-time collection of traffic data in terms of both the legal prerequisites required to authorize such investigative measure and the offences in respect of which this measure can be employed. While recognizing that both types of data may have associated privacy interests, many States consider that the privacy interests in respect of content data are greater due to the nature of the communication content or message. Greater limitations may be imposed with respect to the real-time collection of content data than traffic data. To assist in recognizing this distinction for these States, the Convention, while operationally acknowledging that the data is collected or recorded in both situations, refers normatively in the titles of the articles to the collection of traffic data as ‘real-time collection’ and the collection of content data as ‘real-time interception’.
x x x
215. The conditions and safeguards regarding the powers and procedures related to real-time interception of content data and real-time collection of traffic data are subject to Articles 14 and 15. As interception of content data is a very intrusive measure on private life, stringent safeguards are required to ensure an appropriate balance between the interests of justice and the fundamental rights of the individual. In the area of interception, the present Convention itself does not set out specific safeguards other than limiting authorisation of interception of content data to investigations into serious criminal offences as defined in domestic law. Nevertheless, the following important conditions and safeguards in this area, applied in domestic laws, are: judicial or other independent supervision; specificity as to the communications or persons to be intercepted; necessity, subsidiarity and proportionality (e.g. legal predicates justifying the taking of the measure; other less intrusive measures not effective); limitation on the duration of interception; right of redress. Many of these safeguards reflect the European Convention on Human Rights and its subsequent case-law (see judgements in Klass (5), Kruslin (6), Huvig (7), Malone (8), Halford (9), Lambert (10) cases). Some of these safeguards are applicable also to the collection of traffic data in real-time.
Explanatory Report on the Budapest Convention on Cybercrime, [2001] COETSER 8 (November 23, 2001), available at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm
24 Morfe v. Mutuc, 130 Phil. 415, 436 (1968).
25 Ople v. Torres, 354 Phil. 948, 970 (1998).
26 See, for instance, the following cases where the Court upheld the governmental action over the right to privacy: Kilusang Mayo Uno v. NEDA, 521 Phil. 732 (2006) (regarding the validity of Executive Order No. 420, which established the unified multi-purpose identification (ID) system for government); Standard Chartered Bank v. Senate Committee on Banks, 565 Phil. 744 (2007) (regarding the Senate’s resolution compelling petitioners who are officers of petitioner SCB-Philippines to attend and testify before any further hearing to be conducted by the Senate); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 395 – 399 (regarding the Regional Trial Court of Laoag’s decision denying the petitioner’s petition for the privilege of the writ of habeas data).
27 See, for instance, the following cases where the Court nullified governmental actions and upheld the right to privacy: City of Manila v. Laguio Jr., 495 Phil. 289, 317 – 319 (2005) (regarding a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area); Social Justice Society v. Dangerous Drugs Board, 591 Phil. 393, 413 – 417 (2008) (regarding mandatory drug-testing for of candidates for public office and persons charged with a crime having an imposable penalty of imprisonment of not less than six (6) years and one (1) day before the prosecutor’s office); White Light Corporation v. City of Manila, 596 Phil. 444, 464 – 467 (2009) (regarding a city ordinance prohibiting motels and inns from offering short-time admission, as well as pro-rated or "wash up" rates).
28 Ople v. Torres, 354 Phil. 948, 970 (1998).
29 City of Manila v. Laguio Jr., 495 Phil. 289 (2005).
30 White Light Corporation v. City of Manila, 596 Phil. 444 (2009).
31 Internet definition, Merriam Webster Online Dictionary, http://www.merriam-webster.com/dictionary/internet
32 As the technology exists now, data is usually sent through the Internet through a packet-switching network. Under this system, data sent through the Internet is first broken down into tiny packets of data which pass through different networks until it reaches its destination, where it is reassembled into the data sent. These tiny packets of data generally contain a header and a payload. The header keeps overhead information about the packet, the service and other transmission-related information. This includes the source and destination of the data, the sequence number of the packets, and the type of service, among others. The payload, on the other hand, is the actual data carried by the packet. Traffic data may be monitored, recorded and collected from the headers of packets.
33 Chapter 1, Article 1 (d) of the Cybercrime Convention; see also Section 3 (p) of Republic Act No. 10175.
34 Chapter 1, Article 1 (b) of the Cybercrime Convention
35 What is a packet?, HowStuffWorks.com (Dec. 01, 2000) http://computer.howstuffworks.com/question525.htm See also: Structure of the Internet: Packet switching, in A-level Computing/AQA, http://en.wikibooks.org/wiki/A-level_Computing/AQA/Computer_Components,_The_
Stored_Program_Concept_and_the_Internet/Structure_of_the_Internet/Packet_switching; and What is Packet Switching?, Teach-ICT.com, http://www.teach-ict.com/technology_explained/packet_switching/packet_switching.html.
36 Edward J. Wegman and David J. Marchette, On Some Techniques for Streaming Data:
A Case Study of Internet Packet Headers, p.7, http://www.dmarchette.com/Papers/VisPacketHeadersRev1.pdf.
37 167. Often more than one service provider may be involved in the transmission of a communication. Each service provider may possess some traffic data related to the transmission of the specified communication, which either has been generated and retained by that service provider in relation to the passage of the communication through its system or has been provided from other service providers. Sometimes traffic data, or at least some types of traffic data, are shared among the service providers involved in the transmission of the communication for commercial, security, or technical purposes. In such a case, any one of the service providers may possess the crucial traffic data that is needed to determine the source or destination of the communication. Often, however, no single service provider possesses enough of the crucial traffic data to be able to determine the actual source or destination of the communication. Each possesses one part of the puzzle, and each of these parts needs to be examined in order to identify the source or destination. Explanatory Report on the Budapest Convention on Cybercrime, [2001] COETSER 8 (Nov. 23, 2001), available at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm.
38 A law enforcement agent’s unauthorized access to content data may constitute illegal interception, which is penalized by Section 4, paragraph 2 of the Cybercrime Law:
(2) Illegal Interception. – The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.
39 442 U.S. 735 (1979).
40 In Smith v. Maryland 442 U.S. 735 (1979), the petitioner had been charged with robbery, and prior to his trial, moved that the evidence acquired by the police through the installation of a pen register at a telephone company’s central offices. This allowed the police to record the numbers dialed from the telephone at the petitioner’s home. The US Supreme Court eventually held that this act did not violate the petitioner’s right to privacy, as it does not constitute a search. The petitioner did not entertain an actual, legitimate and reasonable expectation of privacy to the phone numbers he dialed.
41 In the Philippines, data privacy is governed by Republic Act 10173 or The Data Privacy Act of 2012. RA 10173 established the country’s data privacy framework. It recognizes the individual’s rights to his personal information and sensitive information, and fines the unlawful processing of these kinds of information and the violation of the rights of a data subject.
42 Section 16 of the Data Privacy Act provides:
Section 16. Rights of the Data Subject. – The data subject is entitled to:
(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;
x x x x
(e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information; and
(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.
43 Section 31 and 32 of the Data Privacy Act provide:
Section 31. Malicious Disclosure. – Any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).
Section 32. Unauthorized Disclosure. – (a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).
(b) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party sensitive personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00).
44 Mindi McDowell, Staying Safe on Social Network Sites, US-CERT, (Feb. 6, 2013) http://www.us-cert.gov/ncas/tips/ST06-003; See Adam Tanner, Users more savvy about social media privacy than thought, poll says, Forbes Magazine, (Nov. 11, 2013) http://www.forbes.com/sites/adamtanner/2013/11/13/users-more-savvy-about-social-media-privacy-than-thought-poll-finds/.
45 533 U.S. 27 (2001).
46 533 U.S. 27, 37 (2001).
47 Riccardo Bettatti, Traffic Analysis and its Capabilities, (Sept. 10, 2008) http://usacac.army.mil/cac2/cew/repository/papers/Modern_Traffic_Analysis_and_its_Capabilities.pdf; Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities Through Traffic Analysis (June 2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.pdf citing C.V. Wright, L. Ballard, F. Monrose, and G. M. Masson, Language identification of encrypted VoIP traffic: Alejandra y roberto or alice and bob in Proceedings of USENIX Security Symposium, 2007 and C.V. Wright, L. Ballard, S. E. Coull, F. Monrose, and G. M. Masson, Spot me if you can: Uncovering spoken phrases in encrypted VoIP conversations, In Proceedings of IEEE Symposium on Security and Privacy, 2008.
48 Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities Through Traffic Analysis (June 2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.pdf.
49 See: James Manyika, Michael Chui, Brad Brown, Jacques Bughin, Richard Dobbs, Charles Roxburgh, Angela Hung Byers, Big data: The next frontier for innovation, competition, and productivity, Mckinsey Global Institute, (May 2011) http://www.mckinsey.com/insights/business_technology/big_data_the_next_frontier_for_innovation
50 More objects are becoming embedded with sensors and gaining the ability to communicate. The resulting information networks promise to create new business models, improve business processes, and reduce costs and risks. Michael Chui, Markus Löffler, and Roger Roberts, The Internet of Things, Mckinsey Global Institute, (March 2010) http://www.mckinsey.com/insights/high_tech_telecoms_internet/the_internet_of_things.
51 Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities Through Traffic Analysis (June 2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.pdf citing T. Jiang, H.J. Wang, and Y. Hu. Preserving location privacy in wireless LANs In Proceedings of MobiSys, pages 246–257, 2007 and J. Wilson and N. Patwari, See through walls: Motion tracking using variance-based radio tomography networks, IEEE Transactions on Mobile Computing, 2010.
52 Department of Justice Primer on Cybercrime, available at http://www.upm.edu.ph/downloads/announcement/DOJ%20Primer%20on%20Cybercrime%20Law.pdf; see also "Quashing Cybercrime," Senator Edgardo Angara’s sponsorship speech on the Cybercrime Prevention Act (May 11, 2011) http://www.senate.gov.ph/press_release/2011/0511_angara3.asp
53 Section 10 of the Cybercrime Law provides:
Section 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act.
54 See for instance, Fernandez v. Comelec, 579 Phil. 235, 240 (2008) and Villanueva v. Adre, 254 Phil. 882, 887 (1989), where the Court declared a petition moot and academic, but proceeded to rule on the issue of jurisdiction for the guidance of the bench and the bar; or Altres v. Empleo, 594 Phil. 246, 261 – 262 (2008), where the Court restated in capsule form the jurisprudential pronouncements on forum-shopping; or Republic v. CA and Molina, 335 Phil. 664, 676 – 680 (1997), where the Court formulated guidelines in the interpretation and application of Art. 36 of the Family Code.
55 Section 14 and 16 of the Cybercrime Law provides:
Section 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.
Section 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.
56 Section 21 of the Cybercrime Law provides:
Section 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act. including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.
There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.
57 Article VIII, Section 5, paragraph 5 of the 1987 Constitution provides:
Section 5. The Supreme Court shall have the following powers:
x x x
5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure mall courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rule.s shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be umform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
Annex A - Submitted Votes and Explanation on Cybercrime
J. Arturo D. Brion
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Cybercrime Law provision
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J. Brion's Vote and Explanation
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Section 4(a)(l) penalizing illegal access as a cybercrime offense. Illegal access is defined as "[t]he access to the whole or any part of a computer system without a right."
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Constitutional - concur with the ponencia
According to the petitioners, Section 4(a) (1) fails the strict scrutiny test because it is not narrowly fitted to exclude the ethical hacker, who hack computer systems to test its vulnerability to threats.
What Section 4(a)(l) penalizes is harmful conduct in the Internet. It does not infringe upon the exercise of fundamental rights, and hence does not trigger a facial examination and the strict scrutiny of Section 4(a) (1).
Even assuming that the strict scrutiny test applies, what the law punishes is the act of accessing a computer WITHOUT RIGHT; this excludes the ethical hacker who has been presumably contracted by the owner of the computer systems.
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Section 4(a)(3) penalizes data interference which is defined as "[t]he intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses."
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Constitutional - concur with the ponencia
What Section 4(a)(3) penalizes is harmful conduct in the Internet. It does not infringe upon the exercise of fundamental rights, and hence does not trigger a facial examination and the strict scrutiny of Section 4(a)(3).
Even if a facial examination of Section 4(a)(3) is warranted, the petitioners failed to show sufficient reason for the law's unconstitutionality. Contrary to the petitioners' claim, this provision does not suffer from overbreadth. As elucidated by the ponencia, all penal laws have an inherent chilling effect or the fear of possible prosecution. To prevent the state from legislating criminal laws because they instill this kind of fear is to render the state powerless to penalize a socially harmful conduct. Moreover, this provision clearly describes the evil that it seeks to punish.
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Section 4(a)(6) punishes cyber-squatting which is defined as "[t]he acquisition of domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it."
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Constitutional - concur with the ponencia
- Petitioners contend that Section 4(a)(6) violates the equal protection clause because a user using his real name will suffer the same fate as those who use aliases or take the name of another in satire, parody or any other literary device. The law would be punishing both a person who registers a name in satire and the person who uses this name as it is his real name.
Section 4(a)(6) does not violate the equal protection clause because it appears to exclude the situation that the petitioners fear. The law punishes the bad faith use of a domain name; there can be no bad faith if the person registering the domain name uses his own name.
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Section 4(b)(3) which penalizes identity-theft, defined as "the intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of identifying information belonging to another, whether natural or judicial, without right."
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Constitutional – concur with ponencia
What Section 4(b)(3) penalizes is harmful conduct in the Internet. It does not infringe upon the exercise of fundamental rights, and hence does not trigger a facial examination and the strict scrunity of Section 4(b)(3) .
Even assuming that a facial examination may be conducted, the petitioners failed to show how the government's effort to curb this crime violates the right to privacy and correspondence, and the right to due process of law.
According to the ponencia, the overbreadth doctrine does not apply because there is no restriction on the freedom of speech. What this provision regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. Moreover, there is no fundamental right to acquire another's personal data.
This provision does not violate the freedom of the press. Journalists would not be prevented from accessing a person's unrestricted user account in order to secure information about him. This is not the essence of identity theft that the law seeks to punish. The theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be regarded as a form of theft.
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Section 4(c)(l) penalizing cybersex, i.e., "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".
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Constitutional - concur with the ponencia
Obscene speech is not protected speech, and thus does not trigger the strict scrutiny test for content-based regulations. Cybersex is defined as:
(1) Cybersex. - 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.
The qualification that the exhibition be 'lascivious' takes it outside the protective mantle of free speech.
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Section 4(c)(2) penalizing child pornography as defined in Republic Act No. 9975 (RA 9975) or the Anti-Child Pornography Act of 2009 when committed through computer systems
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Constitutional - concur with the ponencia
According to the ponencia, this provision merely expanded the scope of RA 9975 (The Anti-Child Pornography Act of 2009). The resulting penalty increase is the legislature's prerogative. Moreover, the potential for uncontrolled proliferation of a pornographic material when uploaded in the cyberspace is incalculable. There is thus a rational basis for a higher penalty.
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Section 4(c)(3). Unsolicited commercial communications, punishes the act of transmitting commercial electronic communications which seek to advertise, sell or offer for sale products and services (SPAM)
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Unconstitutional for infringing on commercial speech.
According to the ponencia, SPAM is a legitimate form of expression, i.e., commercial speech, which is still entitled to protection even if at a lower level. The government failed to present basis to hold that SPAM reduces the efficiency of computers, which is allegedly the reason for punishing the act of transmitting them.
I do not agree with the ponencia 's argument that Section 4(c)(3) should be declared unconstitutional because it denies a person the right to read his emails. Whether a person would be receiving SP AM is not a certainty; neither is it a right.
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Section 4( c )( 4) application of libel articles of Article 353, 354, 361 and 362 of the Revised Penal Code when committed through a computer system
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Constitutional, but the other provisions of the Cybercrime Law that qualify cyber-libel should all be declared unconstitutional for unduly increasing the prohibitive effect of the libel law on speech. The prohibitive effect encourages self-censorship and creates a chilling effect on speech
I concur with J. Carpio in de:claring Article 354 of the Revised Penal Code unconstitutional in so far as it cyber-libel involving public officers and public figures. Section 7 of the Cybercrime Law is likewise unconstitutional insofar as it applies to cyber-libel.
The 'presumed malice' found in Article 354, in relation to Article 361 and 362 of the Revised Penal Code (which the Cybercrime Act adopted) is contrary to subsequent US rulings on freedom of speech which have been transplanted when the Philippines adopted the Bill of Rights under the 193 5, 1973 and 1987 Constitutions. He noted that the RPC was enacted in 1930, before the adoption of a Bill of Rights under the 1935 Constitution. Since then, jurisprudence has developed to apply the 'actual malice' rule against public officials.
It is the duty of this Court to strike down Article 354, insofar as it applies the presumed malice rule to public officers and public figures.
Section 4(c)(4) of the Cybercrime Law, which adopted the definition of libel in the Revised Penal Code, and added only another means by which libel may be committed. Thus, for purposes of double jeopardy analysis, Section 4(c)(4) and Article 353 of the RPC define and penalize the same offense of libel
Further, Section 7 also offends the Free Speech clause by assuring multiple prosecutions of those who fall under the ambit of Section 4(c)(4). The spectre of multiple trials and entencing, even after a conviction under the Cybercrime Law, creates a significant and not merely incidental chill on online speech.
- the application of Section 6 (which increases its penalty) of the Cybercrime Law to libel, should, as CJ Sereno pointed out, be declared unconstitutional (discussed below)
- the application of Section 5, in so far as it applies to cyberlibel, should be declared as unconstitutional (discussed below)
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Section 5 on aiding or abetting and
attempt in the commission of
cybercrimes
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Unconstitutional - concur with the ponencia. It is unconstitutional in so far as it applies to unsolicited commercial communications, cyberlibel and child pornography committed online.
According to the ponencia, Section 5 is unconstitutional in so far as it applies to unsolicited commercial communications, cyberlibel and child pornography committed online
The law has not provided reasonably clear guidelines for the law enforcement authorities and the trier of facts to prevent their arbitrary and discriminatory enforcement. This vagueness in the law creates a chilling effect on free speech in cyberspace.
For example, it is not clear from the wording of the law whether the act of 'liking' or 'commenting' on a libelous article shared through a social networking site constitutes aiding or abetting in cyberlibel.
As regards aiding or abetting child pornography, the law is vague because it could also punish an internet service provider or plain user of a computer service who are not acting together with the author of the child pornography material online.
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Section 6, which provides that all crimes penalized by the Revised Penal Code, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by RA 10175. It further states that the imposable penalty shall be one degree higher than that provided for by the Revised Penal Code, and special laws.
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Unconstitutional - concurs with CJ Sereno, it is unconstitutional in so far as it increases the penalty for cyber-libel one degree higher.
According to CJ Sereno, Section 6 creates an additional in terrorem effect on top of that already created by Article 355 of the RPC:
1) The increase in penalty also results in the imposition of harsher accessory penalties
2) The increase in penalty neutralizes the full benefits of the Law on probation. Effectively threatening the public with the guaranteed imposition of imprisonment and its accessory penalties
3) It appears that Section 6 increases the prescription periods for the crime of cyberlibel and for its penalty to fifteen years
4) ICT as a qualifying aggravating circumstance cannot be offset by any mitigating circumstances
For providing that the use oflCT per se, even without malicious intent, aggravates the crime of libel, Section 6 is seriously flawed and burdens free speech.
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Section 7, which provides that "[a] prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended orspecial laws."
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Unconstitutional - concur with the ponencia and Justice Carpio, unconstitutional insofar as it applies to cyberlibel and child pornography
According to Justice Carpio, Section 7 is unconstitutional in so far as it applies to libel because it assures multiple prosecutions of those who fall under the ambit of Section 4(c)(4). The spectre of multiple trials and sentencing, even after a conviction under the Cybercrime Law, creates a significant and not merely incidental chill on online speech.
Further, Section 4(c)(4) of the Cybercrime Law, which adopted the definition of libel in the Revised Penal Code, only added another means by which libel is committed. Thus, for purposes of double jeopardy analysis, Section 4(c)(4) and Article 353 of the RPC define and penalize the same offense of libel
The same reasoning applies for striking down as unconstitutional the application of Section 7 to Section 4(c)(2) or child pornography. It merely expands the Anti-Child Pornography Act's scope to include identical activities in cyberspace.
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Section 8, which provides for penalties for the cybercrimes committed under the Cybercrime Law
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Constitutional - concur with the ponencia
According to the ponencia, it is the legislature's prerogative to fix penalties for the commission of crimes. The penalties in Section 8 appear proportionate to the evil sought to be punished
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Section 12 on the real time collection and recording of traffic data
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Unconstitutional because it violates the right to privacy.
While traffic data per se does not raise any reasonable expectation of privacy, the lack of standards in Section 12 in effect allows the real time collection and recording of traffic data of online activities and content data. Content data is indisputably private information. The collection of traffic data, over time, yields information that the internet user considers to be private. Thus, Section 12 suffers from vagueness and overbreadth that renders it unconstitutional.
This ruling does not totally disallow the real-time collection and recording of traffic data. Until Congress enacts a law that provides sufficient standards for the warrantless real-time collection of traffic data, this may still be performed by law enforcement authorities, subject to a judicial warrant.
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Section 13, which requires Internet
Service providers to retain traffic data
and subscriber data for a period of 6
months; and for ISPs to retain content
data upon order from law enforcement agents
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Constitutional - concur with the ponencia
The petitioners argued that Section 13 constitutes an undue deprivation of the right to property. The data preservation order is a form of garnishment of personal property in civil forfeiture proceedings, as it prevents internet users from accessing and disposing of traffic data that essentially belong to them.
The ponencia maintained that there was no undue deprivation of property because the user has the obligation to keep a copy of his data, and the service provider has never assumed responsibility for the data's loss or deletion while in its keep.
Further, the data that service providers preserve are not made inaccessible to users by reason of the issuance of the preservation order. The process of preserving the data will not unduly hamper the normal transmission or use of these data.
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Section 14 on Disclosure of Computer Data, which provides that "[l]aw enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber's information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation."
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Constitutional - concur with the ponencia
The petitioners argued that it is beyond the law enforcement authorities' power to issue subpoenas. They asserted that issuance of subpoenas is a judicial function.
The ponencia clarified that the power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue subpoenas as part of their investigatory powers. Further, what Section 14 envisions is merely the enforcement of a duly-issued court warrant. The prescribed procedure for disclosure would not constitute an unlawful search and seizure, nor would it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.
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Section 15 provides that the law enforcement authorities shall have the following powers and duties in enforcing a search and seizure warrant:
(a) To conduct interception;
(b) To secure a computer system or a computer data storage medium;
(c) To make and retain a copy of those computer data secured;
(d) To maintain the integrity of the relevant stored computer data;
(e) To conduct forensic analysis or examination of the computer data storage medium; and
(f) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.
Furthermore, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.
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Constitutional - concur with the ponencia
As the ponencia explained, Section15 does not supplant, but merely supplements, the established search and seizure procedures. It merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant. The exercise of these duties does not pose any threat on the rightsof the person from whom they were taken.
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Section 17 provides that "upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination."
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Constitutional - concur with the ponencia
According to the ponencia, Section 17 does not amount to deprivation of property without due process. The user has no demandable right to require the service provider to have the copy of data saved indefinitely for him in its storage system.
He should have saved them in his computer if he wanted them preserved. He could also request the service provider for a copy before it is deleted.
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Section 19 empowering the Department of Justice (DOJ) Secretary to restrict or block access to computer data when it is found to have prima facie violated the provisions of the Cybercrime Law
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Unconstitutional- partially concur with the ponencia in holding Section 19 unconstitutional because it restricts freedom of speech
According to the ponencia, the content of the computer data can also constitute speech. Section 19 constitutes an undue restraint on free speech because it allows the DOJ Secretary to block access to computer data only upon a prima facie finding that it violates the Cybercrime Act. Thus, it disregards established jurisprudence on the evaluation of restraints on free speech, i.e., the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule
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Section 20, which provides that non-compliance with the orders from the law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 (PD 1829) (Obstruction of Justice Law).
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Constitutional - concur with the ponencia
According to the ponencia, Section 20 is not a bill of attainder; it necessarily incorporates the elements of the offense of PD 1829. The act of non-compliance must still be done knowingly or willfully. There must still be a judicial determination of guilt.
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Section 24 on the creation of a Cybercrime Investigation and Coordinating Center (CICC); and Section 26(a) on CICC's Powers and Functions
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Constitutional - concur with the ponencia
The petitioners contended that the legislature invalidly delegated the power to formulate a national cybersecurity plan to the CICC.
The ponencia ruled that there is no invalid delegation of legislative power for the following reasons:
(1) The cybercrime law is complete in itself. The law gave sufficient standards for the CICC to follow when it provided for the definition of cyber-security. This definition serves as the parameters within which CICC should work in formulating the cyber-security plan.
(2) The formulation of the cyber-security plan is consistent with the policy of the law to prevent and combat such cyber-offenses by facilitating their detection, investigation and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.
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The Lawphil Project - Arellano Law Foundation
