CYBERCRIME LAW: An Imperfect Copy

A planet of more than 7 billion inhabitants; more than two (2) billion personal computers, fifteen percent of which carry the Apple brand; and more than five (5) billion cell phones, smartphones and tablets, the Earth has become a world of interconnected digital natives and immigrants, communication devices, and computers through a worldwide network called the Internet.

There have been profound changes brought by the computerization, convergence, and continuing globalization of networks.

There have been concerns on “the risk that computer networks and electronic information may be used for committing criminal offenses and that evidence relating to such offenses may be stored and transferred by these networks.”  

Many countries saw the “need for cooperation between States and private industry in combating cybercrime and the need to protect legitimate interests in the use and development of information technologies.”

The same countries also believed “that an effective fight against cybercrime requires increased, rapid and well-functioning international cooperation in criminal matters.”

This is why the Council of Europe, joined by the United States and other non-Council members adopted the international agreement called CONVENTION ON CYBERCRIME (CCC).

Records show that the Philippines was a participant and, in fact, a signatory of the Convention which encourages Parties to follow a suggested format and/or provisions of a Cybercrime Prevention Law.

After a careful read of the Philippines’ Cybercrime Prevention Act of 2012, and the Convention on Cybercrime (CCC), I am not surprised that the Philippine legislators copied, almost verbatim, most of the provisions of the former from the latter.

The only problem is that some important provisions of the CCC were omitted and the Philippine legislators inserted some that have no place in the law.

The entire Chapter II dealing with all the Punishable Acts, except for the insertion of LIBEL and Sections 6 and 7, all came from CCC.

The provision on Corporate Liability is also a virtual copy of the CCC article (12).

If not because legislators are encouraged and permitted to copy the provisions of the CCC, they could have been easily accused of Plagiarism or even Copyright Infringement in some jurisdictions.

Upon learning of the legislators’ copying, my barber expressed disappointment because he thought Senator Sotto and his staff worked so hard on coming up with the legislation.

“Article 15 – Conditions and safeguards (CONVENTION ON CYBERCRIME)

1. Each Party shall ensure that the establishment, implementation and application of the powers and procedure provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1996 United Nations International Covenant  on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.
2. Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and duration of such power or procedure.
3. To the extent that it is consistent with the public interest, in particular the sound administration of justice, each Party shall consider the impact of the powers and procedures in this section upon the rights, responsibilities and legitimate interests of third parties.”

In its Preamble, the CCC also recognizes the applicability of international human rights treaties which “reaffirm the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including the freedom to seek, receive, and import information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy.”

Nowhere in the copied Philippine Cybercrime law does it reflect the said conditions and safeguards.

On the contrary, LIBEL has been added despite its absence in the CCC, and in other Cybercrime laws of foreign countries including the United States. It omitted offenses related to infringements of Intellectual Property Rights and yet it added Section 6 of the Philippine law, which states;

“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.”

A cell/smart phone use could increase a criminal’s penalty by one degree higher. In fact, Infringement of Intellectual Property rights in the Revised Penal Code such as Articles 187 and 188 (Trade Name and Trademarks) could be included if committed by, through and with the use of ICT. The most widely violated laws in the Internet are Intellectual Property Rights. By knowingly omitting it, our legislators must have unknowingly included it.

In my last week’s column on the Cybercrime law, I emphasized that the new law should be “read, interpreted, and enforced” together with Sections 1-4 of Article III of the Philippine Constitution. The said provisions deal with the Bill of Rights relating to Free Speech, Unreasonable Searches and Seizures, Privacy of Communications and Correspondence, and Equal Protection of the laws.

These are built-in constitutional safeguards that Internet users could utilize; that Judges could use for the interpretation of statutes, and that law enforcers including the Department of Justice could consider in implementing and applying the law. They are superior to any statute.

The Implementing Rules and Regulations of the law might still cure some of the defects. The Supreme Court could declare some parts of the law unconstitutional and let the rest remain valid. A bill could be introduced to amend it and invite the public including bloggers and Internet users to express their views.

The House of Representatives should probably take the initiative. After all, their version of the Cybercrime bill did not include Libel and other insertions made by the Senate.

“Who should order the search and/or seizure of one’s computer or block access to data, Judge or the Secretary of Justice?”

Cybercriminal: “Judge. It is cheaper and easier to bribe a Judge.”

Law-abiding Internet User: “Now, Justice Secretary – member of “Daang Matuwid Team. Later, after CJ Sereno's Judicial Reforms, Judge."

Philippine Cybercrime Prevention Act

On September 12, 2012, President Benigno Aquino III signed the Cybercrime Prevention Act of 2012 into law. It shall take effect fifteen days after the completion of its publication in the Official Gazette or in at least two newspapers of general circulation.

Looking at it positively, the law is enacted to encourage an accelerated and rational development of the “application and exploitation of information and communications technology.  It is also meant “to protect and safeguard the integrity of computers, computer and communications systems, networks, 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.”

The punishable acts enumerated under the law are:

1.  Offenses against the confidentiality, integrity, and availability of computer data and systems such as illegal access; illegal interception; data interference; cyber-squatting; and misuse of devices.

2. Computer-related offenses such as computer-related Forgery; and computer-related Fraud;

 3. Content-related offenses such as cybersex; child pornography; unsolicited commercial communications;

 4. Libel; and

 5. Other offenses such as aiding or abetting in the commission of cybercrime; and attempt in the commission of cybercrime.

Misuse, abuse, and illegal access are the key words that define the offenses. They should be read, interpreted, and enforced together with the Bill of Rights that the Constitution provided for its citizens.

The Constitution states; “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.” – Section 4, Article III

It should be emphasized that this constitutional provision supersedes any statutory law.  While in some cases Libel is a way to check the abuse of the Freedom of Speech or of the Press, the latter is as strong a protection against abusive use of Libel laws to harass and silence citizens in freely expressing their views and/or distributing information, data, and knowledge online or offline.

“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.” – Section 3, Article III

The provisions of the Act relating to the offenses should also be read, interpreted, and enforced together with Section 3, Article III of the Constitution because they also touch on the privacy of the citizen's communications and contents or libraries stored in his computer/s or electronic devices and even online through the cloud.

This is especially true when the specific provision under Section 2, Article III of the Constitution is taken into consideration.  This provision states,

“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.”

The enactment of a Cybercrime law in the Philippines is a good start. We can no longer be isolated from the virtual world.  Having been dubbed as the Twitter, Facebook, Text, and Call Center Capital of the World, it is now incumbent upon the Philippine Government to monitor, regulate and protect the lawful behavior and rights of netizens as well as to prevent and punish the misuse, abuse, and illegal use of these rights by others.

The Office of Cybercrime within the Department of Justice (DOJ) to be the central authority in all matters related to international mutual assistance and extradition will be created.

A National Cyber Security Center within the Department of Science and Technology-Information and Communications Technology Office (DOST-ICTO) will also be created to formulate and implement a national cybersecurity plan, and extend technical assistance for the suppression of real-time commission of cybercrime offenses through a Computer Emergency Response Team (CERT).

The National Cybersecurity Coordinating Council (NCCC) under the Office of the President will, most importantly, be created to formulate and implement the national cybersecurity plan.

By the creation of the above-mentioned offices; the search, recruitment, and training of the personnel manning such offices; the training of the judges, prosecutors and the staff of the courts that would be trying potential cases; and the allocation of more funds (the initial budget of P50-M is small) to finance the implementation and enforcement of the law, should get the Philippines as a cyber law nation up and going.

One significant observation on my part is why the Senators and Congressmen failed to include in the recently enacted law a provision that deals with Intellectual Property Crimes such as those that deal with violating Copyrights (original expression of an idea); Trademarks (Identify Source of goods and services); Trade Secrets; and Patent Rights. The infringement is usually massive in scale and is akin to theft.

Section 1, Article III of the Constitution touches on this issue;

“No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

The Copyrights including written works; Trademarks; Trade Names; Trade Secrets; and Patents are properties that are protected by the Constitution and should also be safeguarded against theft or misappropriation either online or offline.

Violations against Intellectual Property Rights are always included in Cybercrime laws in the United States and other countries. In my Computer/Cyber Crimes class, we had extensive discussions on Intellectual Property Crimes. There was none on Libel.

This is probably an inadvertent omission on the part of the legislators because of their focus on debating the RH Bill and Plagiarism/Copyright Infringement charges led by Senators Sotto (Anti) and Pia Cayetano (Pro).

My barber is also asking me if the Parliamentary Immunity of legislators is limited to the physical boundaries of the walls of Congress. If a legislator commits a cybercrime, is he still protected by the immunity? :)

Technology and Social Media at the Conventions

The role of technology in our everyday lives either as consumers or as citizens cannot be denied. Using technology as consumers affects the economy. Utilizing it in the exercise of our rights as citizens definitely influences the political landscape.

Indeed, in the advent of the Internet that connects computers and electronic gadgets as well as the introduction of mobile devices ( IPADs, Tablets, iPhones and Smart Phones) as tools to communicate; to gather data, info, knowledge; to educate; to deliver and respond to various kinds of messages; and to entertain and be entertained, such a role has become more significantly defined.

This is especially true when technology is used in social media involving major events. Two of such events were the national conventions of the Republican Party, which was held in Tampa, Florida and the Democratic Party, which was held in Charlotte, North Carolina.

While the conventions were going on, noticeable were the number of tweets registered. According to the data released by Twitter and published by press agencies and bloggers online, during the two-week convention season there were 16 million convention-related tweets. There were only 360,000 tweets for the same period in the 2008 party conventions.

On Election Day in 2008 there were 1.8 million tweets globally on all topics. Comparatively, on Thursday night of the Democratic National Convention, there were 4 million tweets.

During the 3 days of the Republican convention, there was a total of 4 million tweets – equivalent to the number of tweets during the last night of the Democratic National Convention.

During the entire week of the Republican convention 7 million tweets were sent, while during the period of the Democratic convention, 9.5 million tweets were sent.

President Obama’s speech generated 52,756 tweets per minute which, according to Twitter, is a record. Gov. Mitt Romney’s speech, on the other hand, reached a peak of 14,289 tweets per minute.

It must be noted, however, that the number of tweets does not necessarily mean all positive views for the speaker.  They could be  responses to other tweets and retweets.

Tweets during Vice-President Biden’s speech peaked at 17,932 per minute while Congressman Paul Ryan’s peaked at 6,669 tweets per minute.

Both the speeches of Michelle Obama and Ann Romney were very effective and generated thousands of tweets per minute accordingly. The former generated 28,003 tweets per minute while the latter had 6,193 tweets per minute.

Former President Bill Clinton’s speech was definitely the most persuasive and convincing one in the entire convention. It generated 22,087 tweets per minute. Among the Republicans, Florida Senator Marco Rubio who also delivered a stirring speech ranked second at 8,937 tweets per minute.

Other speakers who had significantly high tweets were Clint Eastwood (7044 per minute); Gov. O’Malley (7602); Gov. Patrick (6909) and Gov. Christie (6079).

Facebook also monitored the mentions of Obama and Romney in status updates, comments, posts and shared posts. It reported that Obama had 192 percent more citations than Romney.

I understand that the citizen and consumer participation via Twitter and Facebook is also reflected in TV ratings.

With the other features of the gadgets that attendees brought and used during the two conventions, we can just imagine how many photos and videos were taken and emailed and/or uploaded for the benefit of friends, fans and followers.

The Smart Phone Battles and the Tablet Wars

APPLE

The iPhone still rules.  So does the IPAD. According to Apple Inc. it sold 26 million iPhones last quarter, 28% more than last year’s. There were also 17 million IPADs sold, an 84% increase, a quarterly record.

The patent rights case that resulted in a billion dollar ruling in favor of Apple and against Samsung devices that utilizes the Android OS further reinforces Apple’s current frontrunner status.

On September 12, 2012, Apple will launch the iPhone 5 and a new iPod. The launching of the IPAD Mini sometime later will follow.  We expect that these new devices would generate more sales and would again increase the Apple stock price and should let the company maintain its lead.

GOOGLE

Google, Inc. which owns and pushes the Android OS to compete against Apple’s IOS has not given up. On the contrary, with the purchase of Motorola and its patents Google is determined to go after Apple in the battle for the smart phone and tablet markets.

On September 5, 2012, Motorola will be unveiling the DROID RAZR M 4G LTE. Of course, the Intel-powered DROID RAZR HD will be in Verizon’s Fall lineup. Motorola jointly with Verizon will launch it on September 18, 2012.

Unbeknownst to many, there was actually a win for Samsung in the patent case with Apple. In 2011, there was an injunction against the Samsung Galaxy 10.1 Tablet in the United States.  In the patent case, the jury ruled that there was no patent infringement by Samsung in its Galaxy tablet.  This is why you now see aggressive advertising, marketing and selling of the tablet.

MICROSOFT

The other aggressive firm that both Apple and Google should really worry about in the smart phone and tablet wars is Microsoft with its Windows Operating System.

While it is true that Samsung as smart phone and tablet manufacturer would be affected by the patent rights ruling in the United States, pending its appeal, it is now aggressive in pursuing its tie-up with Microsoft.

Recently, it launched a new family of SmartPCs, tablets and smartphones called ATIV based on Windows 8 and Windows RT, and Windows Phone for the new smartphone line. ATIV brand is the reverse spelling of VITA, which is Latin for “Life,” signifying Samsung’s pledge to “make everyone’s life extraordinary with excitement.” The devices launched were the 10.1 – inch ATIV Tab,  the 4.8 – inch ATIV S (smartphone), the 11.6 – inch Smart PC, and the 11.6 – inch Smart PC Pro.


NOKIA

Nokia was formerly the largest cell/smart phone manufacturer and distributor worldwide. In fact, I still have 4 working Nokia phones that are based on the Symbian Operating system.  The assumption is that it knows how to sell and still has access to the worldwide distribution network for smart phones.

Nokia’s decision to give up the Symbian OS in favor of Microsoft’s Windows OS for its very powerful smart phone is indeed a major shot at regaining the market share that Apple, Google, and Samsung took from it.

On September 5, 2012, Nokia and Microsoft will be launching together the Lumia 920 and smaller Lumia 820 that will run on the latest Windows Phone (8) Operating System. Both hope that, outside of its current 100,000 apps that are available, more developers would create applications that could compete with Apple and Android’s 500,000 apps.

BLACKBERRY

Research in Motion (RIM) does not want to be forgotten. It continues its drive to have its Blackberry devices as an alternative to the other smartphones. In a press release, it will launch its new Blackberry 10 OS sometime in 2013 and correspondingly debut six new smartphone devices that will be powered by the QNX-backed OS.

SONY
Sony has proven skills in video games, cameras, and audio players. It expects to draw from such skills in developing smartphones and tablet computers. It intends to catch Apple and Samsung in this race in the future.

Sony’s entry into the smartphone and tablet wars is its Xperia brand for both devices.

Excitement is in the air! Competition whether we call it battle or war, is good for the consumers. It breeds innovation, encourages creativity, and of course, brings down prices.

APPLE = MVP

Recently, APPLE became Wall Street’s MVP (Most Valuable Property). This is based on the market cap valued at the New Stock Exchange. It became the most valuable by about $235-B more than Exxon, the previous leader that now ranks as the second most valuable company in the world.

Most analysts even concluded that APPLE actually became the MVP of all time. Of course, the conclusion would differ if inflation were accounted for. According to the Columbia Journalism Review, “APPLE’s market cap of $622 billion isn’t an all-time record and that Microsoft’s 1999 record still stands. Microsoft, which posted the previous record of $620.58 billion in 1999, was really worth $850 billion when adjusted for inflation.

At any rate, APPLE is really the largest company in the world now.  For mobile users, it has also become the company of choice. Its products are the most sought after. Most consumers now use the IPAD, the iPhone, the iPod, Mac laptops and other Mac mobile devices and accessories.

APPLE vs. SAMSUNG

The value of its stock already rising, APPLE late last week won its Patent case against SAMSUNG. The former was awarded over $1 billion in damages. Pending appeal, APPLE would most likely get the court to enjoin the selling in the United States of at least 7 SAMSUNG gadgets.

This would mean more sales for APPLE mobile devices, more income, and correspondingly, increase of its stock price. In fact, after the decision, APPLE stock price rose to new highs.

Wait until the iPhone 5 and the IPAD Mini are launched this coming October!

This prompted my barber to comment, “It is really the APPLE of GOD’s eye.”

MICROSOFT

Windows 8 OS of MICROSOFT will be launched within the next few months. It will be in Windows Phones, Nokia Smart Phones, Tablets, Ultra books, Laptops and Desktops.

SAMSUNG’s loss to APPLE and Windows 8 present a window of opportunity for MICROSOFT. SAMSUNG’s Tablet that uses Windows 8 OS should be launched immediately to compete with APPLE’s IPAD head-on. It would also be a chance to start installing Windows 8 in SAMSUNG Smart Phones.

INTERNATIONAL CES

The annual International CES (Consumer Electronic Show) will be held on January 8-11, 2013 in Las Vegas, Nevada. It is the largest electronics show on earth. About 145,000 attend every year for different reasons. According to a poll survey, 66.77% attend to see what’s new; 16.77% go there for Networking; 4.45% for the TechZones/Innovation; 3.73% for the Conference sessions; 3.11% for the Keynotes; and 5.28% for other reasons.

I attend it every year representing Asian Journal USA, as a credentialed member of the PRESS. I write about the events of the conference as I attend them.

The first event for the Press on International CES will be in New York on November 12, 2013. It will showcase the new consumer electronic products and expose them to the media.  It will be held at the Metropolitan Pavillon. I am registered to attend it.

REMINDER: Those who are interested in attending the CES Las Vegas event without having to pay the conference fee, should register immediately. The deadline for free registration is August 31, 2012. Starting September 1, 2012, the fee will be $100 and at the site, it will be $200.

CYBERSECURITY CONFERENCE

Another conference that I attend annually in Washington, D.C. as a member of the Press, is the CYBERSECURITY Conference. This year, it will be held on October 22-23, 2012 at the Grand Hyatt in Washington.

Attendees are expected to receive the latest developments in tactics, tools, and technologies for incident prevention and response as well as communication and strategy for cyber programs. 

It will be held simultaneously with the CLOUD & VIRTUALIZATION CONFERENCE and the MOBILE GOVERNMENT CONFERENCE.

So, it will be THREE EVENTS IN ONE! I intend to write about the new technologies and programs that will be covered in the three conferences.

ENTERPRISE ARCHITECTURE

Here is one conference that I never miss. This year, the Enterprise Architecture Conference is being held at the Walter Washington Convention Center on November 28-29, 2012.

My interest in this conference is the information and knowledge that I get about the current state and future role of Enterprise Architecture in Government; new approaches, tools and methodologies for architecture for a digital government.

DIGITAL LIFE

As you can see, I will be focusing on a digital and electronic life in the next few months. I will continue to use my APPLE mobile devices but hope to test and experience the SAMSUNG Tablet that has the Windows 8 OS before the International CES.

I Tech IT From My Barber!