Senate Cybercrime Acts: On A War Footing against Freedom

"Unnecessary write-ups and comments have been made in the social networking systems with the public having in mind an imprecise concept of freedom of speech." Senator Sotto, Senate Journal, January 24, 2012

Senate Attitude: "THE INTERNET IS EVIL!!!"

Reader Baycas referred me to a document that pertains to the Cybercrime Bill and how it evolved in the Senate. This is a record from the Senate Journal, I believe posted by Pia Cayetano in response to inquiry from Top Blogger Raissa Robles. Having never read a congressional transcript before, I was fascinated by the proceedings. I will review some basic facts regarding the meeting, offer some observations regarding general Senate processes, then focus on specific deliberations regarding the Cybercrime Bill. I'll wrap it up with conclusions and a well-deserved Golden Bluto Award.

Factoids

1. This was the January 24, 2012, session of the Senate, the second session of the year. It began at 9:17 a.m. and ended at 10:47 a.m., lasting one hour and 30 minutes.

2. During the course of this meeting the Senate dispensed with a variety of bills and committee reports, moving them along. Exactly one half of the meeting time (45 minutes) was devoted to amendments on the Second Reading of the Cybercrime Bill.

3. Thirteen senators were physically present in the chambers, enough for a quorum. Another six senators were recorded as present, but asterisked for reasons not included in the journal; possibly in the building but not in the room. Two were absent. Two were double asterisked with no entry. It was a small crowd.

4. The session began with a short prayer from Senator Angara, then acceptance, unread, of the minutes from the prior meeting on January 17.

5. It was registered during the discussion that the Senate only meets in session twice a week.

General Proceedings

1. Most work is obviously done outside the formal meetings. The process is mainly a rubber stamping of various procedural check-points on bills and other actions, first readings, second readings, committee reports, etc. It is done by voice vote with "no objection" moving an item forward. During the entire meeting, there was only one objection, by Senator Guingona, regarding one Cybercrime amendment.

2. The time prior to and just after the Cybercrime discussion was dedicated to action on 16  different motions if my count is accurate.  The most substantive of these were:

1. An appeal by Senator Pia Cayetano that the HR Bill be moved forward for attention. Majority Leader Sotto explained that it was being held up by absences and other reasons, and said he, too wanted it to move forward because "I am itching to deliver my turno en contra speech on the subject." [Note: this is the speech, broken into four parts, that contained substantive information copied from other original sources without attribution.]

2. A reading by Senator Guingona of the findings and recommendations by a Blue Ribbon Panel looking into alleged graft and corruption activities by prior board of the Philippine Charity Sweepstakes Office (PCSO). The reading took about 20 minutes. The report included 10 substantive recommendations. The matter was referred to senators for consideration outside the meeting. This concluding remark gives the tone of the findings:

• "Let this serve as a reminder to all that public funds are sacred as it is imbued with public interest. Public funds could only be spent for authorized public purposes and can never be used as a private piggy bank."

3. One gets the impression that a lot of paper is moving, generally without any in-session comment. It is difficult to say whether or not senators had read the documents pertaining to any of the measures addressed. If I were to guess, given the technical reading required, Senators only brief up on matters that they deem important and let the rest flow like water downstream.

Cybercrime Proceedings

1. Senator Angora held the floor during the reading of amendments. It was his bill and he clearly held full power to decide what went into the document and what did not. This resulted in an efficient movement forward on the bill but a curt dismissal of the objection by Senator Guingona and comment from Senator Pia Cayetano. The Senate approved 37 amendments with one objection. It then approved three amendments by Senator Santiago offered during the meeting. Amendment subjects:

1. Definition:  Computer
2. Definition: Critical Infrastructure
3. Definition: Cybersecurity
4. Word insert
5. Word deletion
6. Word substitution
7. Delete "intentional or reckless" from definition of system interference
8. Insertion of new paragraph on "Cybersquatting" (banning the acquiring of a site name for profit)
9. Delete "intentional" from the definition of computer related forgery
10. Delete "intentional and" from the definition of computer related fraud [JoeAm: Does this mean accidental violations are fraudulent???]
11. Punctuation change
12. Insert a new definition of "Cybersex" [Objection by Senator Guingona; see below]
13. Revised definition of "Child Pornography" [Senator Pia Cayetano indicated she wanted to confirm that this definition is correct outside the meeting; Angara said conclusively it was "her words"]
14. Punishment for 4A-5  stated
15. Punishment for acts against critical infrastructure stated
16. Replacement language for "Real Time Collection of Traffic Data" (requiring no warrant)
17. Typo correction
18. Simplifying language on "interception" to exclude reference to eavesdropping and tapping
19. Insert words
20. New section on restricting or blocking access to data if the computer is in violation of the act
21. New provision creating the Office of Cybercrime within the Department of Justice
22. New wording on creation of a National Cyber Security Center within the Department of Science and Technology
23. Word change to provide different name: National Cybersecurity Coordinating Council (NCCC)
24. Change in wording on provision placing the NCCC under President Aquino
25. Change in wording on NCCC composition: includes reps of NBI, PNP, DOJ, private sector and academe [JoeAm hothead reaction: "Jesus Christ, it is just the internet, why are we going to a war footing? Which unit is the Gestapo?"]
26. Change initials to NCCC
27. Change initials to NCCC
28. Word change
29. Word change
30. Word change
31. Change initials to NCCC
32. Word change
33. Word change
34. Change 10,000,000 to 50,000,000
35. Word change
36. Word change
37. Limit "Repealing clause" only to section 33-A of E-Commerce Law.

2. Mr Guingona's Objection and Discussion:

Senator Guingona. Mr. President, I would like to say that we still have a problem with the definition. It still acts...smacks of prior restraint and I am very sure this would, in my humble opinion, run against constitutional infirmities.

Senator Angara. We do not intend to impose any prior restraint, Mr. President. But if I can just ask our distinguished colleague to hold on until I read all the individual amendments into the Record  and then we will go back to him on his point.

Senator Guingona. Thank you, Mr. President.

[Later after completion of reading of minutes]

Senator Angara. That summarizes it all, Mr. President, the individual amendments proposed by our Members in the course of the debate. And with the Chair's permission, I would like to go back to the query of--to the question of our distinguished colleague, Senator Guingona, on page 5 of this Memorandum on the definition of "Cybersex". Mr. President, this new definition of Cybersex, precisely, was made in response to the reservations expressed by Senators Guingona and Santiago specifically to remove the word "arousal" from this definition. Arousal, being said and I agree, is a very subjective term. However, the clause for favor or consideration was kept because this is the moving consideration. It is the crux of cybersex crime that it is done for money, for consideration, for a favor, just similar to the definition of "prostitution". So, I would like to hear now why this definition will suggest or imply a prior restraint, Mr. President. 

Senator Guingona. Again, with the Chair's permission. Again, it leaves discretion on the judge. For example, "lascivious exhibition" can refer to anything very broad. And so, I still feel very, very uncomfortable with this, Mr. President. And my suggestion then is: Why do we not just delete the whole section?

Senator Angara. But there must be a definition of the crime, Mr. President. Otherwise....

Senator Guingona. That is precisely my point. It smacks of legislating morality, Mr. President.

Senator Angara. No, we are not legislating morality. But if we delete the definition, Mr. President, then the other implication is that we do not agree that cybersex is a crime and yet, that is probably one of the most rampant crimes being committed and particularly committed on our kids.

Senator Guingona. Well, Mr. President, I still cannot in conscience agree to it. I still believe that it will run smack against the Constitution.

Senator Angara. I respect the gentleman's personal opinion, Mr. President, and I....

Senator Guingona. I hope the gentleman will understand, Mr. President. These are my principles.

Senator Angara. Yes, yes. I respect the gentleman's libertarian inclinations, Mr. President, and I respect it.

Senator Guingona. Thank you.

Senator Angara. But may I still suggest that we must keep this, Mr. President, otherwise, we would be leading a large, large field of unregulated and noncriminalized activity which is quite often seen in practically every kid's computer and Internet kiosk in this country

3. Senator Santiago's amendments

1. Expand hacking enforcement to online programs, emails and social networks
2. Word change substituting "fraudulent intent" for clarification
3. New paragraph requiring certain testaments before a warrant is issued to prevent abuse by law enforcement agencies

4. Strange discussion between Senator Lacson and Senator Angara about phone sex not being cybersex, as there is nothing to see on a phone, with an apparent private joke made at Senator Casino's Osmena's expense. Good old boy lascivious humor?

5. Senator Sotto inserts section on libel. This lays to rest any notion that Senator Sotto did not insert the libel section. He did on the Second Reading of the Bill.

Senator Sotto. We are aware of the numerous abuses in our technology today. Videos and photos are uploaded. Unnecessary write-ups and comments have been made in the social networking systems with the public having in mind an imprecise concept of freedom of speech. Lampas na sa freedom of speech, if we will go through these social networking systems.

Mr. President, in Mendez v. Court of Appeals , G.R. No. 124491, June 1, 1999,"Libel is defined 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 discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are:(a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

Furthermore, Mr. President, in Lacsa v. Intermediate Appellate Court, 161 SCRA427, 1988, it was stated, "Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue, or reputation, or to hold the person or persons up to public ridicule".

Now, with this in mind, I hope the Sponsor could include the following in addition to contempt-related crimes with the end in view of applying libel in cyberspace. We would want to place it on record that the publication requirement in the crime of libel is achieved by the mere fact that it is seen in cyberspace and this can further promote the advocacy of "Think before you click". So, cybercrime offenses, Mr. President, are not covered under Republic Act No. 3815 where libel is there in Article 355.

So, Mr. President, may I propose that we insert on page 6, line 37, probably the last one for Section 4,

LIBEL. - THE UNLAWFUL OR PROHIBITED ACTS OF LIBEL AS DEFINED IN ARTICLE 355 OF THE REVISED PENAL CODE COMMITTED THROUGH A COMPUTER SYSTEM OR ANY OTHER SIMILAR MEANS WHICH MAY BE DEVISED IN THE FUTURE.

The insertion was accepted by the Senate without objection.

6. The Second Reading of the Bill was approved with "a few ayes".

Conclusion

Senator Angara was the driver of the Bill. He was dogmatic and insistent on the language that is now causing so much trouble. His brusque shuffling aside of Senator Guingona's objection with personal insult illustrates his determined approach. He also did not appreciate Senator Cayetano's interruption, being curt with her.

In my imagination, I see President Aquino, Senator Angara, Senator Enrile and Senator Sotto having lunch together in 2010 and deciding to come down hard on cyber crimes as a part of the President's initiative to "clean up the Philippines". Somewhere, somehow, the President was being counseled by Justice Secretary De Lima and her assistant Sy to accept the stern language in a draft of the Bill. Or he was giving THEM the marching orders.This language was then given to several legislators and formed the core of the Bill that was eventually put into law. Sotto added the libel provision.

This was an Executive Branch bill, not a legislative bill. That's why it was moved ahead of RH and FOI legislation.

This would also explain President Aquino's obstinate, tin-eared defense of the new law even if it flies in the face of the most basic freedom of them all. Freedom of expression.

This blog's opening quote from Senator Sotto probably reflects the attitude of the Executive Branch and the "Good Old Boy" senators. The public misunderstands freedom of speech and we are going to set them straight. The alignment of all the police power in the Philippines to attack cybercrime  . . . and libel . . . illustrates the power behind this push.

Senator Guingona's objection displayed considerable courage. One voice among 23. One mind among 23 that grasped the very essence of freedom and the flaw in the bill: "It smacks of legislating morality, Mr. President."

This is no small deal. These key leaders have a different morality, a narrower comprehension of what "free expression" means. That's why the President remains tin-eared about freedom of expression. He does not hold it as a cherished value . . . for the good of the Philippines. Good governance evidently means re-defining core values of the nation.

And so the Supreme Court has the soul of the nation in its hands.

The soul, as exhibited by the Executive and Legislative branches, is lost in darkness. I suggest they let Senator Guingona draft a Constitutionally perfected bill to lead them out of the woods.

He's the only guy with any credibility left. The only guy with a flashlight that works.

Awards

Another Golden Bluto Award is earned, post-dated to January 24, 2012.

• Five Golden Blutos are granted to Senator Angara for his awe inspiring performance in "How to Cram Constitutional Violations Past Your Colleagues" and thereby successfully abandon any notion that free expression is a cherished value or that the Senate works in the public interest.