Jose Jesus Disini, Jr. et al. vs Secretary of Justice et al.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, 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.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

Section 15 is constitutional.

Section 4(a)(1)

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

The concern of the petitioners here, as well as in the sections below, is the case of white hat hackers or ethical hackers. These are usually independent good-intentioned hackers who test vulnerabilities of computer systems with the intention of helping the owner of the system to improve their system. Or ethical hackers who access questionable websites to obtain information to help government authorities.

Section 4(a)(1) is constitutional.

Section 4(a)(3)

(3) Data Interference. – The 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.

Section 4(a)(3) is constitutional.

Sec. 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

SC also emphasized Informational Privacy which is the right to refuse to disclose personal matters.

Section 12 is unconstitutional.

Section 4(c)(3)

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited.

The government presents no basis for holding that unsolicited electronic ads reduce the “efficiency of computers.” Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him.

Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Section 4(c)(3) is unconstitutional.

Section 4(b)(3)

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of identifying information belonging to another, whether natural or juridical, without right.

Atty. Chan’s note: The above provision, for the petitioners, may violate press freedom as it restricts anonymity practices used by the press to protect their sources, i.e., suppose an online source does not want to be identified and had assumed an identity which is coincidentally owned by another, it will be unfair to prosecute that source under this provision

The allegation that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered from accessing the unrestricted user account of a person in the news to secure information about him that could be published has no merit. Such is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, 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.

In theft, intent to gain as an internal act which can be established through the overt acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. As such, the press, whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain which is required by this Sec. 4(b)(3).

SC emphasized: Zones of Privacy: Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process.

Section 4(b)(3) is constitutional.

Atty. Chan’s note: Not sure if the SC and the petitioners are referring to the same “theft.” Though not presented in the full text, petitioners seem to refer to the usual act of journalists of hiding the identity of their sources by using fictitious names – that such practice may be adversely affected by this provision if ever the chosen fictitious identity coincides with that of an actual person – hence violating the press freedom law which essentially allows a journalist to make his or her source anonymous. On the other hand, SC seem to mean “theft” as the act of unilaterally acquiring the identity of the thief for publication purposes – that such is not theft because there is no intent to gain.

Section 4(a)(6)

(6) Cyber-squatting. – The 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.

Consider two individuals, one whose real name is JULIO GANDOLFO and one whose nickname is JULIO GANDOLFO; suppose the person whose nickname is JULIO GANDOLFO purchases a domain name , with the law worded as it is, JULIO GANDOLFO (nickname) is at risk of being sued by JULIO GANDOLFO (real name) for cyber-squatting.

This does not also violate the equal protection clause for the same reason stated.

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxx

(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.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. They express fear that private communications of sexual character between husband and wife or consenting adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when done “for favor” in cyberspace (dirty sexy talk between couples or consenting adults). In common usage, the term “favor” includes “gracious kindness,” “a special privilege or right granted or conceded,” or “a token of love (as a ribbon) usually worn conspicuously.”

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxx

(c) Content-related Offenses:

(4) The unlawful or prohibited acts of libel 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.

Petitioners argue that both the penal code and the Cybercrime Prevention Act violate the country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth.

Nevertheless, only the author of the libelous online material is liable.

Netizens who like, share, re-post (re-tweet) the libelous online material will not be liable either as principals or accomplices / accessories (aiding or abetting). Commenting is generally not punishable but if the “Comment” does not merely react to the original posting but creates an altogether new defamatory story, then that would be considered an original posting subject to our libel laws.

The SC also emphasized a qualification:

Our libel laws mainly target those done against private persons. Libelous materials against government officials may not be punished so long as the author is not motivated by malice and the writing was done for justifiable ends.