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Big Brother Spying

imagesAmericans were enraged when whistleblower Edward Snowden declared that the government was spying on them. According to the whistleblower, he was one of those whose job was to eavesdrop on phone conversations and access email communication without court authorization. This was shocking to the public because of well-established US jurisprudence that protects the people’s right to privacy of their communication.

Applying by analogy rules on when police authorities may stop individuals for the purpose of frisking them, the rule has only been that there has to be good suspicion at the very least; if not actual knowledge of the commission of a crime on the part of the police before they could intrude on a person’s private zone. Applied to communication on the telephone and on the Internet, authorities similarly could not access communication without suspicion or actual knowledge of commission of a crime, or when so authorized by a Judge.

Apparently, the US National Security Agency has been spying on the American people for quite some time already. And what is even more bothersome is that telecommunication companies, those who the people thought would be zealously guarding their privacy, have been voluntarily supplying the Federal government with real time date information . It would seem that these companies may have gone beyond identifying the existence of mail intended for an addressee. They may  also have been providing access to the actual communication themselves and not just to data logs, the latter being the  electronic counterpart of an envelope in snail mail

It would appear hence that what our own 20102 Cyber crimes Prevention Law seeks to achieve in its section 12, the real time gathering of data information, has been on-going in the United States for quite some time already. The good news is while the American Civil liberties Union only challenged this invasion of data privacy very recently, we in this country impugned this section of the Cyber crimes law at least 8 months before our American counterparts did. This is a rare instance when Philippine jurisprudence could influence the manner by which American courts decide on a constitutional issue.

The pertinent provision of the Philippines law reads: “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”.

Solicitor General Francis Jardeleza pleaded that if there was one provision in the law that should be upheld, it should be this one. According to him: “it is an investigative tool that makes tracing, tracking and arresting hackers more efficient”.

The Sol-Gen explained “since hackers are faceless, the real-time collection of traffic data would enable law enforcers to locate and identify them through their IP or Internet Protocol address”.

Earlier, my colleague in UP Law, Jay-Jay Disini argued that access to these data log should require court authorization. He claimed that the people have an expectation of privacy on matters stated in our phone bill which includes the number called and when the call was made. He argued that like in everyday life,  these information should remain private unless police authorities have at the very least suspicions of  wrong doings.

Either way, the Philippine law appears to be an improvement because it will allow data gathering only where there is “due cause”. But as the Justices observed, without a definition of what this “due cause“ is, only the executive could define it and the definition may be all encompassing.

Meanwhile, in the United States, ACLU alleged that the eavesdropping is likely to have a “chilling effect” on those who want to contact them for redress of violations of their rights. They alleged that this policy of eavesdropping violates both the First and the Fourth Amendment of the US Constitution , or the rights to freedom of expression and freedom from unreasonable search and seizures.

Both Filipinos and Americans are eagerly awaiting our respective Supreme Court decision on this very important constitutional challenge. Meanwhile tough the Obama administration, not unlike Sol-Gen Jardeleza, has justified the policy as having successfully curtailed terrorist attacks in the United States. With this kind of defense, expect governments to continue their snooping despite intense public opposition thereto.

George Orwell was right after all.

Government defends cyberlaw

jardeleza-roqueIt was the government’s turn last Tuesday to defend the Cybercrime Prevention Act. Solicitor-General Francis Jardeleza single handedly defended the law. The Justices grilled him for at least three and a half hours straight. Almost all of the questions of the magistrates focused on libel and Section 12 of the law, which authorizes law enforcement agents to gather or collect real-time data.

Justice Roberto Abad fired the opening salvo. He observed that while the government has argued that libel is not being penalized for the first time under the new law, Congress must still be presumed to have a purpose for including libel as a content-related offense under the new law. Justice Abad theorized that it must be to make it clear that defamatory statements in the Internet had to be expressly declared by Congress as now capable of being punished as libel. The

Sol-Gen countered that what Congress did was merely to provide publication in the Internet as a qualifying circumstance. He argued that cyber libel was the only offense under the new law that was not subject to a higher penalty, a conclusion that was disputed not just by Justice Abad, but also by Justices Teresita De Castro and Justice Diosdado Peralta. All of them asked the government to show where in the new law this exception may be found. The Sol-Gen then, responding to a question from Justice Abad, opined that reposting a libelous post on Facebook may be subject also to a libel prosecution, but pressing the “Like” button may not be as the latter may represent only an opinion. Justice Abad though observed that while the Solicitor-General has opinions on these matters, the reality is because of the uncertainty on the legal consequences of reposting and liking, this may lead to the chilling of the rights of the citizens to express themselves on facebook.

Justice Antonio Carpio reiterated his view that the current jurisprudence on libel recognizing the actual malice rule in New York Times vs. Sullivan has rendered the libel provisions of the Revised

Penal Code as unconstitutional. Justice Marvic Leonen then asked why Congress, despite the jurisprudence, insisted on a cross-reference to Art. 355 of the Revised Penal Code despite the fact that this provision literally runs counter to jurisprudence. He then asked if the Court should not make a declaration that Sec 4(C) 4 of the cyberlaw is unconstitutional to highlight the distinction between the codal provision on libel in the RPC and jurisprudence. He asked: “may it be that the RTC Judge who convicted Adonis applied the language of the RPC and not the jurisprudence on actual malice?”

Anent the collection of real-time data, there appears to be consensus amongst the Justices that without judicial intervention, the section may lead to an invasion of privacy. Justice Antonio Carpio asked the Sol-Gen how he would feel if the government procures a record of his phone history from his phone company without his consent and whether this would be constitutional. The Sol-Gen replied: “constitutional but barely”, highlighting that these phone records would be “external” information for which there is no reasonable expectation of privacy. What the right covers would be the content of these individual calls, which he described as “internal” information. But where the Justices had great misgivings was on “due cause” as basis for the collection of the real time data. Justice Carpio elicited an admission from the government that it is uncertain who will determine that “due cause” exists. The Sol-Gen opined that it should be the law enforcement agency itself. Moreover, Justice Carpio bewailed why law enforcement agencies want to take a short cut. In his words, law enforcement agents “can always go to a Judge for a warrant”. He even said that the

Supreme Court could even designate Judges to act on these applications for warrants. Justice De Castro observed the absence of a definition of “due cause” which in turn, Justice Mariano Del Castillo said might be “subject to abuse”.

There too were important points raised on cybersex. The Sol-Gen explained that the legislative intent of the provisions against cybersex was to penalize prostitution on the Internet and trafficking

and not to punish obscenity. Justice Abad inquired why the law did not mention prostitution and trafficking in the language of the law. Justice Reyes also asked if the cyber law’s provision on “luring” is superfluous given that the same is already punished in a special statute.

Pursuant to tradition, the Chief Justice asked the last questions. She observed that almost all of the questioned provisions of the law are found in the section on “content related offenses” and that these provisions appeared to be “forced insertions”. She was comparing the “loose” language of these provisions with the very precise language of the other offenses such as cyber squatting. She then asked if there was a way of saving the legislation even if the questioned provisions were

to be declared unconstitutional. The Sol-Gen responded that under the principle of separation of powers, the clear intent of Congress is to penalize all those acts classified as content related offenses.

I received a tweet asking if the nation should now say “kudos” to the Supreme Court. Well, my reply is: too soon. My oral argument against the cyberlaw was my 10th opportunity to argue before the Court. The lesson I’ve learned is this: Never celebrate until the decision is actually handed down.

Lets continue to pray and hope that the supremacy of the Constitution will once more be upheld.

A blow to freedom of the press

In an en banc resolution signed by its clerk of court, the Supreme Court reversed itself on the issue of live media coverage of the Ampatuan massacre case. In its earlier decision, the court belittled the accused’s argument that live coverage will imperil his right to be presumed innocent since it will amount to a trial by publicity and would result in a pre-judgment.

In its earlier decision penned by now Ombudsman Conchita Carpio-Morales, the high court ruled that such fear is unfounded as it is not supported by any empirical study. It then applied the constitutional commitment to freedom of the press and ordered live coverage, saying that the sheer number of victim families (58), the number of accused (196), and witnesses could not be accommodated in the courtroom. But more importantly, it recognized the neutrality of media coverage. According to the court: “Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.”

But in its decision dated October 23, 2012 with no indication of who the ponente of the decision was, the court reverted to the prior jurisprudence of in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case, which ruled:

“Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences that might affect their testimony. Also, teledesting not only increases the trial judge’s responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. x x x The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.”

Of course, as one of the private prosecutors in the case, I view this recent ruling as a setback to freedom of the press and to the cause of transparency. In jurisdictions that used to ban live coverage, the concern was the influence of publicity to lay people who sit as jurors in criminal proceedings. In contrast, in our system, the issue of guilt or innocence is made by a judge with impeccable credentials in the law and in the rules of evidence.

But more importantly, even in jurisdictions with the jury system—which include all the States in the United States except for the District of Columbia, the United Kingdom, and even international tribunals such as the International Criminal Court—now allow live television coverage borne of their experience that other than lack of empirical evidence that live media coverage is prejudicial to the accused, their respective jurisdictions also recognize the right of the people to information on matters concerning public concerns. In all these jurisdictions, criminal prosecution is vested public interest since all crimes are committed against the people of a state. In other words, all jurisdictions which now allow live media coverage of trials have engaged in a balancing of interest test and tilted the scale of justice in favor of the public’s right to press freedom and the right of the people to information.

While the court, in its second decision, ordered the showing of live feed of the proceedings in court rooms in Mindanao, such a decision contemplates that only the private complainants have an interest to witness the proceeding of the “trial of the century”.

With all due respect, this is a myopic view of who were victimized by the massacre. While the 58 families may be the only ones with standing to claim monetary damages as a result of the massacre, the fact that at least 33 of the victims, including the 15 families that we represent, are media practitioners have given the entire country a right to witness the proceedings. In the words of UN Special Rapporteur Franck La Rue, the killing of a journalist is prima facie an affront on freedom of the press. While the Court’s second order may enable the private complainants based in Mindanao to witness the prosecution, what happens to the 100 million Filipinos and the rest of the world who have the right to protect and promote freedom of the press?

In Defense of Freedoms

By now, too, it should be public knowledge that because I have seen the trailer, I was able to form a judgment that the controversial film is nothing but garbage. But unless I viewed it, I would not know what is in it. Hence, I would not be able to opine, as I do now, […] More →