Final Requirement in Legal Logic

David, Jan UrielFogata, Javed

Sison, Aldous Francis

I. Cybercrime Law

Introduction

Republic Act No. 10175 or the “Cybercrime Prevention Act of 2012” is an act promulgated by the Philippine Legislature to regulate access to and use of the cyberspace. The said law provides measures to prevent and supress cybercrimes. It also establishes the procedure for the investigation of any violation and the penalties corresponding thereto.

As provided in the Declaration of Policy of the Cybercrime law, the State recognizes the vital role of information and communications industries in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information.

Consequently, the State finds it necessary to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts.

However, when the law was enacted, it was challenged by an overwhelming opposition from various sectors or stake holders some of which claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain of their constitutional rights.

This paper aims to discuss, by using logic tools(e.g., ex ante point of view), the reasons why the law was passed despite the opposition; and the reasons why the Supreme Court generally ruled in favour of its constitutionality

Analysis

When the Cybercrime Prevention Act of 2012 was passed, there was an impression that the law was done in haste. Thousands of Filipino citizens averred that the statute was poorly drafted; that its provisions were vague and overly broad. Little did the citizens know, it took almost 11 years for the law to materialize.

While laws such as the Electronic Commerce Act of 2000 (Republic Act No. 8792[6]) regulated certain computer-related activities, these laws did not provide a legal basis for criminalizing crimes committed on a computer in general. As the E-Commerce Law was only passed last June 2000 and for the lack of special laws, Onel de Guzman, the computer programmer who was purportedly responsible for the ILOVEYOU computer virus, was ultimately not prosecuted by Philippine authorities. The said virus caused damage from US$2 to 5 billion.

At present, one of the acts punished under the Cybercrime Prevention Act of 2012  is “Data Interference” or 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. Some citizens claimed that the said provision suffer overbreadth in that, while it seeks to discourage date

interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms

One might think that an unintentional transmission, where an owner of a storage device or a sender of an electronic mail might inadvertently transmit a virus through an infected file, may be unduly penalized under this law. However, such is not the case. The law specifically provides that it only punishes those which are intentionally and deliberately done, thus, making malice an element of the crime; and consequently, making good faith a plausible defense. Moreover, what the law seeks to prevent are not those petty transmissions; but primarily those, such as the “ILOVEYOU” computer virus, which cause multitude of damage.

Accordingly, the law does not merely punish the culprit with imprisonment and impose amount to compensate the damage incurred. It also seeks to discourage the commission of such crimes in the first place, here is where the ex ante perspective comes into play.  The law aims to effectively prevent and combat 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.

Prior to the passage of the Cybercrime Prevention Act of 2012, vast number of cybercrimes were committed, one of which were the growing number of hacking attacks. Nevertheless, most victims did not

file complaints for lack of clarity on how the process works. Law enforcement was also lagging behind

due to lack of resources as the existing laws at that time did not specifically provides for it. Furthermore, more and more companies were coming out as well filing complaints against local scammers and hackers taking advantage of Filipino e-commerce sites. 

One of the reasons which prompted the Philippine legislature to enact the Cybercrime Prevention Act of 2012 was the growth of home-based workers and BPO industries. This is important as investors have a lot of choices in the region and having an efficient cybecrime law is seen as critical because it is a factor which contributes to the future growth of the sector.

Another act punished under the Cybercrime Prevention Act of 2012 is “Illegal Access” or the access to the whole or any part of a computer system without right. Some citizens contended that such fails to meet the strict scrutiny standard required of laws that interfere with the fundamental rights of the people and should thus be struck down. According to this standard, a legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal protection.3

In Disini v. Secretary of Justice, the Supreme Court found nothing in the provision that calls for the application of the strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right. It is a universally condemned conduct.

The critics of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools and techniques used by criminal hackers but would neither damage the target systems nor steal information. The Court, in the same case, responded by stating that ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give instructions for how these can be remedied. Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the search, the methods to be used, and the systems to be tested. Since the ethical hacker does his job with prior permission from the client, such permission would insulate him from the coverage of the prohibition.

Necessarily, the law will not totally discourage the study of the tools and techniques of hacking, it will only deject those who wishes to pursue the science of hacking just to cause havoc and damage. The statute isn’t going to cause everyone to pursue hacking or not to pursue such. The hope, realistic or not, is just that it cuts down on the practice at the margin. The margin who pursued the career solely for the purpose of interfering, for ill-gotten wealth, the legitimate transactions of the cyberspace.

In the year 2008, increasing cases of cybersex and child trafficking were noted. The State was troubled by the probability that the absence of a Cybercrime Law would render the Philippines a haven for individuals engage in various cybercrime especially cybersex and child trafficking. A catastrophic future where guileless children and women would be exploited by malevolent individuals.

At present, 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 punishable under the Cybercrime Prevention Act of 2012. Despite the benevolent purpose of the law, some people still claimed that the above prohibition 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.

The deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act manifested that the Congress does not intend to penalize a private showing between and among two private persons although that may be a form of obscenity to some. The understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary to constitute the illegal cybersex. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.

The Supreme Court also held that it will not declare unconstitutional where it stands a construction that makes it apply ONLY to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.

As for Child Pornography or the unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act(ACPA) of 2009, committed through a computer system. Some citizens point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture or create any form of child pornography" clearly relates to the prosecution of persons who aid and abet the core offenses that ACPA seeks to punish.

Considering the dynamism and the complexities of the cyberspace, some are wary that the mere formulation of sexually-inspired ideas on one’s own laptop would constitute a violation of the law. Further, if the author posted his ideas on a social network(e.g. Facebook, Twitter), anyone who would like, share, or comment to the post could be considered aiding and abetting a cybercrime.

It may be noted that the Supreme Court held the provision of “aiding and abetting a cybercrime” ,with respect to Cyber Libel, unconstitutional. According to the Court, its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. Conversely, the Court permitted the application of the crime “aiding or abetting the commission of cybercrimes” with respect to Cybersex. Such offense does not border the exercise of the freedom of expression. The critics also averred that punishing “aiding or abetting the commission of cybercrimes” lacks positive limits and could cover the innocent. To answer such averment, the court held that while the claim may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts such cybersex can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of course be spared.

In can be inferred, on how Disini v. Secretary of Justice was decided upon, that the Court doesn’t want people to stop expressing and disseminating their thoughts on the cyberspace; probably because such exchange of thoughts and the free flow of information is necessary for intellectual growth of Citizens. But the Court do want people to think about substituting away from things which appeal to the prurient interest because such probably have lesser intellectual, legal, or social value; especially those which are utterly obscene and have no redeeming value.

Sources

Disini v. Secretary of Justice, G.R. No. 203335, Feb. 11, 2014

Republic Act No. 10175, “Cybercrime Prevention Act of 2012” http://www.gov.ph/2012/09/12/republic-act-no-10175/

http://digitalfilipino.com/timeline-cybercrime-prevention-act-of-2012-a-law-11-years-in-the-making/

http://www.rappler.com/rich-media/13901-the-road-to-the-cybercrime-prevention-act-of-2012

https://sites.google.com/site/cybercrimelaw101/archives/history-background

II. Compulsory military service for 21 year old male citizens

Introduction

Men have been debating on the issue whether or not conscription is a key to suppress threats to a nation’s security. Conscription is the compulsory enlistment of people in a national service, most often a military service.

Currently, no mandatory conscription is in effect in the country. The closest military service that the Philippines has is the RA 9163 or the National Service Training Program Act of 2001. The law requires a student to choose between Reserve Officers' Training Corps (ROTC), Literacy Training Service, or Civic Welfare Training Service. ROTC was designed to provide military training to tertiary level students in order to motivate, train, organize and mobilize them for national defense preparedness. This law repealed Sec. 38 and 39 of RA 7077 or Citizen Armed Forces of the Philippines Reservist Act which mandated students enrolled in colleges, universities and similar institutions of learning to train. Mandatory ROTC was abolished when a student named Mark Chua from the University of Sto. Tomas and member of the UST ROTC unit was found dead. Prior to his death, he and another student had reported an account of alleged corruption within the UST ROTC unit to the school's student publication. The National Bureau of Investigation would later conclude that members of the UST ROTC unit were responsible for Chua's death. Despite of this controversy connecting to conscription, military service may still be may still be mandated under conditions provided by law as stated in Sec 4, Art. II of the 1987 Constitution:

Sec 4.“The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.”

The proposed lawUnlike ROTC which is integrated in collegiate education, the proposed law is to mandate Filipino youth to train in the military for a certain period to be set by the legislature. That certain period will only be for military training and not instilled in collegiate education. According to www.globalfirepower.com, the following is the list of top performing countries in military power based on manpower;

1. People’s Republic of China2. United States of America3. India4. Russia5. North Korea6. South Korea7. Pakistan8. Iran9. Algeria10. Indonesia

While the Philippines is on the 25th spot. Six among the top 10 have conscription in force namely; Russia, North Korea, South Korea, Iran, Algeria, and Indonesia. But the top three in the list does not require military services to its citizens. However this may be connected to their population. China, India, and USA are also the most populous countries ranking 1 st, 2nd, and 3rd

respectively. While the Philippines is on the 12th spot. In a resolution released by the Association of Generals and Flag Officers (AGFO), they called for the revival of ROTC. They said that the current NSTP is insufficient "(More than) 10 years after the abolition of the ROTC as mandatory program, there is now a growing sentiment that the

national defense preparedness of our nation has not been served well since the alternative programs in the National Service Training Program are deemed insufficient to inculcate the values of discipline and patriotism required of every citizen and do not address the military training ideally required of every citizen." It is now weigh whether or not we need to enforce conscription in the country. With the information above, it can be seen that the need of conscription weighs greater that the contrary.

Threats to the National SecurityThe Philippines security has been challenged by both internal and external forces are trying to infiltrate or break the national security. In a special report of the Australian Strategic Policy Institute, outlines the range of internal and external challenges facing the Philippines and some of the implications for prospective partner countries and the region.

Internal Threats

MILF, MNLF, BIFF- The Moro Islamic Liberation Front (MILF) broke away from the secular Moro National Liberation Front (MNLF) in 1978, and formally incorporated in 1984. It is committed to the establishment of an independent Islamic homeland for the Moro peoples. The Philippine Government always treated the MILF as a small fringe. But when the MILF rejected the government’s 1996 autonomy accord with the MNLF, the ranks of the MILF swelled. From 1996 to 2001, the MILF controlled significant territory in the Maguindanao and Maranao regions of Mindanao Island.

Abu Sayyaf- the Abu Sayyaf Group (ASG), which is based in the Sulu Archipelago and on Basilan Island, has sometimes been a movement with ideological pretensions and sometimes nothing more than a criminal enterprise. They are contained to the mountainous and densely covered Jolo Island, with a presence on Basilan and Tawi-Tawi, though they have conducted kidnappings in Zamboanga, including most recently an Australian citizen Warren Rodwell in December 2011. They sometimes engage in piracy, but have never attacked large sea-going vessels. Although the US Special Forces contingent remains in the southern Philippines, they are there in a training and intelligence-sharing capacity, not in a combat role. Despite the annual US$50 million budget, there seems to be marginal utility in the US program. The AFP tends to break up the units that the US has trained and continually fails to adequately fund their troops, relying on US support instead.

Private Armies- local political elites rely on private armies to stay in power. Often they are armed and supported by the government or military. The Ampatuans are a major Muslim clan who are long-time power brokers in Maguindanao and deadly enemies with the MILF. Members of the family serve as mayors, provincial governors and governors of the Autonomous Region in Muslim Mindanao. The AFP and President Arroyo have relied on the Ampatuans and seen them as key allies. Before the massacre in 2009, the Ampatuans delivered votes for President Arroyo and were rewarded handsomely. The size of their private army grew to nearly 2,400.Communist Party of the Philippines/New People’s Army- The CPP/NPA is committed to establishing a progressive communist state based on the Marxist-Leninist-Maoist foundation, in particular the elimination of capitalism and the Philippines’ alliance with neo-colonial states. The AFP currently estimates the NPA’s strength to be roughly 4,100 armed cadres, down sharply

from 4,700 at the end of 2009. At its peak in the 1980s, the NPA had over 20,000 armed combatants.

External Threats

China- the Philippines has become more preoccupied by external threats to its maritime interests in the South China Sea, which is claimed by the People’s Republic of China. Several countries have made competing territorial claims over the South China Sea. Such disputes have been regarded as Asia's most potentially dangerous point of conflict. Both People's Republic of China (PRC) and the Republic of China (ROC, commonly known as Taiwan) claim almost the entire body as their own, demarcating their claims within what is known as the nine-dotted line, which claims overlap with virtually every other country in the region. Competing claims include: Indonesia, China, and Taiwan over waters NE of the Natuna Islands The Philippines, China, and Taiwan over Scarborough Shoal. Vietnam, China, and Taiwan over waters west of the Spratly Islands. Some or all of the

islands themselves are also disputed between Vietnam, China, Taiwan, Brunei, Malaysia, and the Philippines.

The Paracel Islands are disputed between the PRC/ROC and Vietnam. Malaysia, Cambodia, Thailand and Vietnam over areas in the Gulf of Thailand. Singapore and Malaysia along the Strait of Johore and the Strait of Singapore.China and Vietnam have both been vigorous in prosecuting their claims. China (various governments) and South Vietnam each controlled part of the Paracel Islands before 1974. A brief conflict in 1974 resulted in 18 soldiers being killed, and China has controlled the whole of Paracel since then. The Spratly Islands have been the site of a naval clash, in which over seventy Vietnamese sailors were killed just south of Chigua Reef in March 1988. Disputing claimants regularly report clashes between naval vessels.

ISIS- Islamic State of Iraq and Syria is an Islamic extremist rebel group controlling territory in Iraq and Syria, with operations in Lebanon, Libya, the Sinai Peninsula of Egypt, and other areas of the Middle East, North Africa, West Africa, South Asia, and Southeast Asia. In 23 July 2014, Abu Sayyaf leader Isnilon Hapilon swore loyalty to al-Baghdadi Caliph of ISIS in a video, along with the rest of the organization, giving ISIL a presence in the Philippines.

Benefits based on ex post perspective and ex ante point of viewWith the developing and developed threats against the national security of the Philippines, it is now clear that the country really needs a well thought-out armed forces to defend the nation into rising chaotic events made by present and future groups.

Ex post prospective

Lesser reliance from the USWith this prospective, the nation will have the power to defend itself with reserved forces from the mandatory military training. Currently, we are in partnership with other countries, especially the US to justify the countries insufficient forces. The Enhanced Defense Cooperation Agreement was signed by the US and the Republic to allow US forces to train in the Philippine territory. In return, the Philippines will be indirectly under the umbrella of the US if a serious

conflict with China arises. The agreement bore conflicts and problems, among those are; the constitutionality of EDCA, sexual abuses by American soldiers, etc. If the conscription would push through, there will be lesser chances of having agreements with other countries. The Philippines will be independent from the US and won’t be accused of being a puppet.

Stronger security against current internal and external forcesIf the proposed law will push through, the country will be able to prevent terrorism and external attacks. This could make the rebels, the terrorists, and modern day conquerors think twice before bullying the Philippines or before starting attacks. It would eliminate current rebels and terrorist from the country by force and intimidation.

Ex ante point of view

Stronger security against future threatsThreats from rebel groups die and born again with a different group and ideologies. Eliminating one does not certify that another will not rise. History repeat itself and it is repeating. The country needs to be ready to defend new forces inside and outside the country. The Philippines needs to be ready when another country declares war against its motherland. With the reserved forces ready to defend, there will be no problem in recruiting new blood for wars and threats. The country can easily defend without asking for alliance for forces.

Assistance to other countriesDuring the Vietnam war, the Philippines handed the US some of its forces. If the proposed law would be signed, the Philippines could do it again. The Philippines can give forces to an international offensive strategies against future rebel groups.

Benefits to the traineeA trainee would develop skills that are not taught in the four walls of the classroom. First is leadership, soldiers develop a sense of leadership by heading their groups. Soldiers once trained bring their sense of leadership outside camp. Some soldiers tend to be good company leaders and public servants. Some of the Philippine presidents who train in the military are Ferdinand Marcos, Emilio Aguinaldo, and Manuel L. Quezon.

Disadvantages

Constitutionality- Once this law is passed, negative reactions from various sectors would arise. Akbayan in its official statement stressed that ROTC would only violate basic human rights. This law may violate the equal protection clause because only male citizens are required to train. freedom of association and religion because some see that enlistment in the military or going in wars as violation of their personal and religious belief.

Extralegal killings- As we go back to the history of ROTC, it was abolished because of the death of Chua, which is a violation of human rights. There are a lot of controversies arising from the military. Both civilian and armed men alike are killed because of conflicts.

Budget- the opportunity cost of the implementation of the law may be used for other expenditures like education and infrastructures. The source of the budget is another problem because this training will cost the national budget a big chunk.