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Cybercrime law in an SMS, Facebook nation

As Filipinos remembered the declaration of martial law 40 years ago last month—and the curtailment of many freedoms that it entailed—the incumbent president signed into law the Cybercrime Prevention Act of 2012.

If the barrage of opposition and flurry of protests online and offline were to be used as gauge, Republic Act 10175 is easily one of the most unpopular laws to be enacted in quite a while.

Barely a month had gone by after its passage, and 15 petitions have already been filed before the Supreme Court asking to either repeal it or amend certain provisions deemed by its critics as unconstitutional.

The law’s most questioned provisions include the real-time collection of traffic data, the authority of the department of justice (DoJ) to “restrict or block access to computer data” without a court order (popularly known as the “takedown” clause), and online libel.

Why wiretapping is illegal while monitoring of traffic data is allowed is not strongly justified. The DoJ, the central implementing authority, assures the public that content will not be touched without a court order.

But some IT experts say that one cannot collect communications data without exposing content. The law says the government can require the telcos and ISPs to cooperate in carrying out this activity. For sure, this would have some implications on the way mobile phone and internet are provided, and on the demand for such services.

Critics are also wary that the DoJ alone can decide on blocking access to sites. The rules and regulations on implementation, which have yet to be drafted, can clarify and set the parameters for this huge responsibility. They cannot, however, change the fact that the law allows one agency to have that much power.

It is online libel that really caught the ire of many who oppose this law, as it incurs graver penalties compared to ordinary libel and allows prosecution for libel in both media. They are unanimous in saying that libel, in the sphere of social media, is considered a suppression of free speech in its most basic form. Thus, the coinage of the term cyber- or e-martial law.

Several groups—some formed via Facebook—held assemblies and public forums, and issued statements of defiance (including a website-defacement spree by a group of hackers) with this clear message: this is not the way to “protect and safeguard” us against cybercrimes.

Legislators were quick to respond, as they are wont to do when election season is near. To date, 10 senators have expressed their reservations about the same law that they recently enacted. Some, including its principal author, have made specific proposals on how to amend it. President Aquino, who defended his decision to approve the law (which he otherwise had the power to veto), is also open to making changes. Taken at face value, the government is doing the right thing – “listening” to the people and taking a second look at a flawed law. But this same flip-flopping and inconsistency, done in Philippine politics with great ease, is also a good reason to be wary of how prudently and effectively this law will be enforced.

While it is high time for the country to have a law on cybercrime, the current version covers too broad a spectrum of offenses and too vague a set of criteria for prosecution, for comfort. It threatens the rights and freedoms of a whole village for the offenses of a few. The law’s jurisdiction—mobile phones, smart phones, computer networks, and other devices connected to the Internet—are also very personal realms such that any form of government check is sure to infringe on one’s right to privacy.

Ultimately, the cybercrime law confirms how so out of touch lawmakers still are to the value of ICT and how citizens use it. The Supreme Court issued a temporary restraining order which allows it 120 days to decide on the petitions. This should also give the Office of the President and Congress time to reflect on this: with each one of 92 million Filipinos using a mobile phone and 30 million using Facebook, there is much at stake in regulating ICT.