A LOOK INTO THE MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM
The Internet has become an intergral part in the lives of people across the globe. Even some of those in the poor section of society for example has a Facebook account; which means to say that even if they are lacking in the basic necessities, these people still find the means to access the internet and be connected with others everywhere. This dependence on the internet can even be seen in the lives of Filipinos. Most are hooked on social networks like Facebook, Twitter and Instagram to name a few. For academic purposes, the students are dependent on the internet for research, homework and papers. Wifi is an in demand commodity and a lot of households subscribes to Internet Service Providers (ISPs). This is but a showing of how information and communications technology has seeped into an average persons life and ingrained itself in his or her daily routine.
According to Kahn and Cerf in their 1999 article, in the new Information Age, we are learning to magnify brainpower by putting the power of computation wherever we need it, and to provide information services on a global basis. Computer resources are infinitely flexible tools; networked together, they allow us to generate, exchange, share and manipulate information in an uncountable number of ways. The Internet, as an integrating force, has melded the technology of communications and computing to provide instant connectivity and global information services to all its users at very low cost(Kahn & Cerf, 2003). With the important role internet has, and the diverse ways it can be utilized, it has been used as a means of improving lives. Families separated by thousands of miles can stay connected, students have been using it for online sources, and ideas circulate by uploading or posting articles, opinions or “tweets” for others to read, comment, and pass on to their peers.
But it can also cause injury ranging from mere annoyance to grave damage. Viruses, cyberbullying, piracy and data theft are some examples of these acts. Because of how vital internet has become, it gave way to clamor between the government and the people on how best to manage the use of the internet. The United States of America (USA) has its Computer Crime and Intellectual Property Section (CCIPS)
responsible for implementing the Department’s national strategies in combating computer and intellectual property crimes worldwide. CCIPS prevents, investigates, and prosecutes computer crimes by working with other government agencies, the private sector, academic institutions, and foreign counterparts. Section attorneys work to improve the domestic and international infrastructure-legal, technological, and operational-to pursue network criminals most effectively. The Section’s enforcement responsibilities against intellectual property crimes are similarly multi-faceted. Intellectual Property (IP) has become one of the principal U.S. economic engines, and the nation is a target of choice for thieves of material protected by copyright, trademark, or trade-secret designation. In pursuing all these goals, CCIPS attorneys regularly run complex investigations, resolve unique legal and investigative issues raised by emerging computer and telecommunications technologies; litigate cases; provide litigation support to other prosecutors; train federal, state, and local law enforcement personnel; comment on and propose legislation; and initiate and participate in international efforts to combat computer and intellectual property crime (The United States Department of Justice).
Here in the Philippines, we also have Republic Act 10175 also known as the Cybercrime Law. But in the wake of passing such law, a lot of netizens rose in outrage at what they consider as containing reperssive and contentious. This brought forth an action by the netizens to call for a Magna Carta for Internte Freedom. In the artilce of Galla,
it is the story of how six ordinary, tech- and internet-savvy citizens, over three hundred online onlookers on Facebook, Twitter, and Google Docs, and a number of their politically-connected friends brought the dream of a Magna Carta for Philippine Internet Freedom to the august halls of the Senate of the Republic of the Philippines, and found in Senator Miriam Defensor Santiago a champion for civil and political rights in cyberspace. It is their belief that the lack of understanding of government in general and legislators in particular of information and communications technology and the Internet, and that the crafting of laws governing their areas of interest could not be allowed to be shoddy work by the technologically semi-illiterate. It was up to these tweeps to craft something that made sense, and then present it to legislators for their consideration. (Galla, 2012).
Constitutional rights shall not be diluted in the Information Age. This is the guarantee sought to be galvanized by Senate Bill 3327, filed on November 12, 2012, by the eminent constitutionalist and international law expert Senator Miriam-Defensor Santiago. In what is a first in Philippine legislative history, the provisions of the bill authored by Senator Santiago draw directly upon the suggestions of Filipino netizens solicited through online “crowdsourcing”. The proposed measure seeks to address not only the protection of but also the establishment of the rights of Internet users in the Philippines. Also, guided by the expert knowledge of the diverse set of IT and legal specialists who advised on the bill, SBN 3327 seeks to establish a sensible, fact-oriented and balanced environment that defends Filipinos against against cybercrimes and cyberattacks. Senate Bill 3327 is titled, appropriately enough, “An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement, Cyberdefense and National Cybersecurity” (Galla, Santiago Files Magna Carta for Philippine Internet Freedom, 2012). Senate Bill 3327 was initially Senate Bill 53 in the First Regular Session of Congress and later became Senate Bill 3327 at the Third Regular Session.
There are differences between the Cybercrime Law and the Magna Carta for Philippine Internet Freedom (MCPIF) which makes people believe that the MCPIF is better than the Cybercrime Law. One of the most prominent is the issue on libel. In the MCPIF liber is penalized with a civil liability while the Cybercrime Law imposes the penalty for internet libel with criminal and civil liability. With regards to this, it has its ups and downs. On one hand, it is more lenient on the offender since at most he will be made to pay compensation for damages caused by him which is what the offended person would most likely aim for. And in case of malicious prosection, the accused would not be made to worry gravely with that idea that possible imprisonment is upon him. But on the other hand, removing the criminal liabilty would not instill discipline on the offender, especially if he has a lot of money to spare. The offender could just pay his way out with a civil liabilty and in a way decriminalize libel. This would depend on how the Cybercrime Courts would handle cases.
In extreme cases for example, decriminalizing libel would give way to a large avenue for cyberbullying. This kinds of things are not uncommon even here in the Philippines. Chris Lao the guy who drove his car through floodwater and the Amalayer girl, Paula Salvosa are examples of those who endured cyberbullying here in th Philippines. They had been made fun of and even hated on in social networks. Some people would experience trauma from bullying, how much more if it is placed online for the world to see. It would have a longer effect and a wider range of people to join in the bullying. What is to deter these would-be cyberbullies if what they did would only incur civil liabilty. Though there is a law that punishes bullying, it does not cover the cases of those beyond elementary students. The persons of Chris Lao and Paula Salvosa would not fall under the Anti-Child Bullying law.
Thus the MCPIF in decriminalizing libel would strip protection and deterrence against such kinds of occurances. What could be done maybe is to define clearly what could fall under libel and what would be considered as a valid exercise of freedom of speech. Or certain exceptions under libel can be introduced and widened to minimize the effects against those who only wish to express their dissatisfaction against public figures, corporations or even against individual persons. But within reasonable limits, of course.
Another differnce would lie on provisions regarding illegal search and seizure. There are those who argue that the R.A. 10175 violates the right to privacy and the constitutional guarantee against illegal search and seizure by allowing warrantless real-time collection. This is why the MCPIF provides strict, detailed guidelines in collecting data to counter possible abuse and violation of the constitutional guarantee against illegal search and seizure. This ideally is good but of course implementation may not be the same. This can be improved by providing specific procedures on how to do about with a valid search and seizure as to establish a clearer cut line on valid and invalid search and seizure.
The MCPIF used the term hacking as one of the violations against data security. The term should have been made more specific since hacking can either be for a good or bad cause. It can be a means to test a software’s security system or it can be made to obtain files without valid authorization as to cause injury to the owner. This has been the problem with the E-Commerce Law. The terms used were not technical which should have been since we are talking about information and communications technology.
Layman’s terms are to be avoided in such cases. Hacking had been the word used to describe an offense falling under violation of data security. Since there are such hackers which are considered white hat hacker and there are those which are considered as black hat hackers, the terms hacking could have been substituted. Hacking itself has its purposes which may not be entirely illegal. The word “hacking” has two definitions.The first definition refers to the hobby/profession of working with computers. The second definition refers to breaking into computer systems. While the first definition is older and is still used by many computer enthusiasts (who refer to cyber-criminals as “crackers”), the second definition is much more commonly used. In particular, the web pages here refer to “hackers” simply because our web-server logs show that every one who reaches these pages are using the second definition as part of their search criteria (Internet Security Systems).
In Section 4 (ii) regarding the right of people to petition the government for redress of grievances, I think this can be better exercised if there are procedures provided in how to go about this petitions. Because sometimes, theses petitions when received are just left on the desk, buried under mountains of other papers and thus forgotten. People who may have a valid and reasonable arguments in their petitions would be left wondering what happened to those petitions and feel that the government is ignoring their grievances. This is way some go to social networks as a media to air their grievances due to the feeling that their petitions would be futile. If there are rules and regulations with regards on how to efficiently address the petitions that are coming to the government, then the right granted by Section 4 (ii) can be effectively exercised by the people with hope for results.
With respect to Section 5 (e) regarding persons or entities offering internet access for free, it is said that they should not restrict access to the internet made by employees, students, members and guests without reasonable ground to the protection from actual or legal threats. But then even given this scenario, how about those schools that prohibits facebook access which essetially does not constitute an actual or legal threat. Or even offices who restricts pornographic sites. Not that I would advocate for such actions but then again, when these acts does not really produce actual threats against the protection of the person or entity but are still restricted from access, would they be liable under this section and if so what would be the extent of the liabilty of the persons or entities restricting such access. I think this can be better improved if made clearer.
The MCPIF has been born precisely because of the demand of the netizens for the protection of their rights in cyberspace and the need to regulate and penalize cybercrimes. And as such it will have varying perspective in its impact on different sectors of society. For the common people or the public in general, I think the MCPIF will give the more leeway openly express their thoughts on blogs and social networks. And these ideas can be disseminated along to their peers by sharing or retweeting such posts. It can be a conglomeration of ideas and opinions and facilitate for an intellectual discussion, I hope, even among those interested in certain topics. Therefore it allows for a wider avenue for freedom of speech. It poses an advantage for the public since it would guarantee the right of the public to exercise their constitutional freedom of speech, to air out their opinions, ideas and grievances. And in doing so in terms of grievances, the general public can be made aware of anomalies or wrongdoings of public figures, groups, corporations, entities or individuals with ill-intent or fraud.
But on the other hand, it has its disadvantages. The perspective of the public and can be twisted when this freedom is used and abused at the same time, cyberbullying specifically. When would it still be considered as an exercise of freedom of speech or when does it cross the boundary into hate speech or internet libel. This is something that has to be addressed since the public looks up to MCPIF as a protection of their freedom and their right against abuse in the cyberspace.
In the government’s perspective, MCPIF provides for stricter rules and procedures in obtaining information from the public as a whole or from certain individuals. Of course if the S.B. 53 is passed, it would come with the creation of the Department of Information and Communication Technology (DICT). Of course in the point of view of the government it would need able and competent public officers versed in the law and technology to man the department and handle the responsibilities that come with the birth of the DICT. According to the MCPIF, one of the strategic objectives of the DICT would be to ensure the availability and accessibility of ICT services in areas not adequately served by the private sector. In idea though, this is beneficial to the internet-dependent public hungry for access to cyberspace but failed to do so due to lack of ICT facilities. The problem with this is the funding for such idea of course. Taxes would have to be used honestly and a means to ensure the generation of funds and full delivery of services would have to be developed so that this objective can be realized and would not die as mere words on paper.
The MCPIF imposes more responsibility on Internet Service Providers (ISPs) for security to subscribers. This failure to do so is provided under Section 44 and its penalty is stated under Section 60 (c) and (d). This would emphasize the obligation that ISPs have to the subscribers. It extends not only for adequate internet service and facilities but also the need for appropriate security level for the data and storage media. It may be either intentionally or unintentionally, the obligation still remains.
Of course the problem would lie with regards to the penalty involve with the violation of Section 44. It is said that Failure to Provide Security and Negligent Failure to Provide Security is punishable by fine and imprisonment. The problem I see here is the imposition of the penalty of imprisonment. It would be hard to impose such penalty to telecommunication entities. I mean, if proven guilty, who would be the one to go behind bars since such entities are only juridical and natural persons and the ones whom can be imprisoned.
Still, the MCPIF outlines the obligations that ISPs should have to the subscribers. It gives more protection to subscribers and it would also serve as protection to the interest of the ISPs so that they are more motivated to increase their security. If they do not provide adequate and competent services it would also be detrimental to their business leaving a bad mark on corporate reputation. They would gain as well as be restricted with the passing of the MCPIF.
The internet has really become an integral aspect of everyday routine. ICT and the Internet are part of our daily lives.
Philippine critical infrastructure is controlled, maintained, and accessed using ICT and Internet networks and these must be protected. An estimated 30 million Filipinos are internet users, with over 90% of the population mobile phone subscribers. The country’s critical infrastructure—government, utilities, communications, banking and finance, mass media, among others—have facilities that are controlled, maintained, and accessed using ICT and Internet networks. The rise of cyber attacks against critical infrastructure highlights the need to secure our critical infrastructure from similar attacks. With the MCPIF, cyber security becomes an integral part of the country’s defense program. Government must harness ICT and Internet technologies to engage citizens effectively and provide services efficiently (Galla, MCPIF: FactSheet, 2012)
Which is why although the MCPIF is not entirely perfect and would need tweaks, the call for a proper law to protect and establish the rights of netizens is necessary and MCPIF would hopefully serve as the answer to such call. Since according to York’s article, the past couple of years have seen a growing interest in Internet regulation developed in a multistakeholder environment. From Brazil to Jordan, such participatory processes have yielded mixed results, but around the world, many activists, policymakers, and other stakeholders remain optimistic that multistakeholder-developed regulation is possible (York, 2013).
This need for a competent law to regulate cyberspace is also further explained by Senator Defensor-Santiago who pushes for the passage of the MCPIF. In the Press Release article on the website of the Senate of the Philippines, it elaborates that Santiago says the country needs a more effective cyberlaw because information and communications technology (ICT) and the Internet are drivers of economic growth. According to a 2012 report by the Department of Science and Technology (DOST), the business process outsourcing (BPO) industry, the information technology outsourcing (ITO) industry, and other outsourcing industries, also known as knowledge worker industries, which are strongly dependent on fast and reliable ICT and Internet networks, have contributed USD 11B in export revenues, or an estimated 5.4% contribution to the gross domestic product (GDP) of the Philippines in 2011 (MAGNA CARTA FOR INTERNET FREEDOM TO REPLACE ANTI-CYBERCRIME LAW — MIRIAM, 2012).
To sum it up, a lot of hopes are riding on the MCPIF. With its pros and cons to different stakeholders, it is with hope that it will be able to maintain the balance between the protection of rights and enforcement of liability to those due to it. Though ideally it is good in a holistic view, its implementation would face certain problems and I think that to be able to effectively uphold the values embedded in the bill, each must do their part to achieve the objects in the MCPIF.
Galla, P. T. (2012, November 26). Crowdsourcing: The Story of the Drafting of the Magna Carta for Philippine Internet Freedom. Retrieved May 4, 2014, from The ProPinoy Project: http://propinoy.net/2012/11/26/crowdsourcing-the-story-of-the-drafting-of-the-magna-carta-for-philippine-internet-freedom/
Galla, P. T. (2012, December 1). MCPIF: FactSheet. Retrieved May 6, 2014, from The ProPinoy Project: http://propinoy.net/2012/12/01/mcpif-factsheet/
Galla, P. T. (2012, Novermber 13). Santiago Files Magna Carta for Philippine Internet Freedom. Retrieved May 4, 2014, from The ProPinoy Project: http://propinoy.net/2012/11/13/santiago-files-magna-carta-for-philippine-internet-freedom/
Internet Security Systems. (n.d.). Retrieved May 6, 2014, from Internet Security Systems: http://www.iss.net/security_center/advice/Underground/Hacking/default.htm
Kahn, R. E., & Cerf, V. G. (2003, February 10). Corporation From National Research Initiatives. Retrieved May 4, 2014, from What Is The Internet (And What Makes It Work): http://www.cnri.reston.va.us/what_is_internet.html
MAGNA CARTA FOR INTERNET FREEDOM TO REPLACE ANTI-CYBERCRIME LAW — MIRIAM. (2012, November 30). Retrieved May 6, 2014, from Senate of the Philippines 16th Congress: http://www.senate.gov.ph/press_release/2012/1130_santiago1.asp
The United States Department of Justice. (n.d.). Retrieved May 5, 2014, from Computer Crime and Intellectual Property Section: http://www.justice.gov/criminal/cybercrime/
York, J. (2013, July 8). A Brief Analysis of the Magna Carta for Philippine Internet Freedom. Retrieved May 6, 2014, from Electronic Frontier Foundation: https://www.eff.org/deeplinks/2013/07/brief-analysis-magna-carta-philippine-internet-freedom