IT Law Journal

administrator April 28th, 2008

Legal Education via the Internet
by Herman D. Lago II

The State Policy on Philippine Education

future of a nation lies in the capacities of the individuals comprising it. And in turn, the capacities of individuals are largely if not solely determined by education.¹ Thus, the importance of education cannot be disputed. In light of this argument, the logical inference is that the quality of citizens, in terms of skills and capabilities – literacy – has a direct and proportional effect to the development and welfare of the nation. The premise is that an educated individual is more likely to be a productive individual, and a productive individual contributes to the nation’s productivity, influencing its growth and development. Put in such light, it becomes clear that education is one area that has great public interest in it. It is due to this substantive public interest that the policy formulation, regulation, and administration of Philippine education come within the purview of the State to act upon.

In light of the fact that the government acts in the form of policies and laws on public concerns, this report will be oriented on premising the discussion on the impact of technology, specifically the influence of the internet which is not yet being taken fully advantage of by the educational system in the Philippines, in order to allow legal education that is already very common and accepted in other countries especially the United States.

Cyber-University

The University of the Philippines Open University (UPOU) was established on February 23, 1995 as the fifth constituent university of the University of the Philippines System. Its mandate is to provide education opportunities to individuals aspiring for higher education and improved qualifications but who are unable to take advantage of traditional modes of education.²

Specifically, the UPOU provides quality higher and continuing education to Filipinos through distance education. Its mission is to give its students formal qualification, as well as to develop in them the discipline and capability to become lifelong learners who are at home in today’s knowledge society.

The goals of the UPOU are to:

• Offer through open and distance learning degree and non-degree programs that are responsive to the needs of learners and of the society of which they are a part;
• Develop a system of continuing education to sustain professional growth and promote lifelong learning;
• Develop and adapt delivery systems appropriate to distance learners;
• Provide leadership in the development of open learning and distance education expertise in the country and in the appropriate use of information and communication technologies of education; and
• Make instructional packages accessible to various publics through collaborative arrangements, institutional agreements, and other appropriate mechanisms.

The Commission on Higher Education (CHEd) has declared the UPOU the National Center of Excellence in Open Learning and Distance Education in recognition of its achievements in this field and its vital role in pushing the frontiers of learning in service to the Filipino nation.

The UPOU, dubbed “UP in Cyber-space,” was founded to fulfill the demand for education through the power of modern communication, such as multimedia and the Internet, thereby reaching a wider section of society than conventional teaching does.³ UPOU has proven that this pioneering approach is successful. Rapid progress elevated the UPOU to a Commission on Higher Education Center of Excellence in Open Learning and Distance Education and a National eLearning Competency Center as designated by the Information Technology and eCommerce Council. Currently, the UPOU offers 31 programs, among them eight post-Baccalaureate Diploma programs, eleven Master’s Degree programs, and one Doctoral degree program in Education.

To answer the needs of diverse students, such as full-time professionals, working heads of families, overseas Filipino workers, physically challenged individuals, incarcerated persons, and individuals simply desiring to enhance their skill in a particular area of interest, 80% of the university’s courses is fully delivered online, where cyber-classes and online discussions replace traditional face-to-face meetings.

To sustain this kind of exchange, infrastructure such as secure networks and servers, and efficient user platforms were put in place, and are still continually being developed for easier and more convenient access. The UPOU is also continuously producing multimedia materials, such as books, CDs, and downloadable digital materials, to supplement online learning.

For the UPOU student, everything from application, enrollment, and registration, to the actual classes, are within reach wherever there is an internet-wired computer. The challenge to go beyond geographical and social borders has already been addressed in terms of auxiliary student services—with the digitization of records and other operations that will enable students to check their grades, update themselves on their classes, order and purchase their books, and even transmit their payments online via e-commerce methods.

UPOU has pushed exploration of learning possibilities further by becoming the foremost research institution for distance learning as an education technology, with 39 active linkages with various educational and research institutions, media, and government agencies. Furthermore, in the last six years, 17 research projects by open education experts have been completed. These valuable studies were instrumental in the establishment of formal and non-formal distance learning courses, the most significant of which is the Master of Distance Education degree program.

Training School for Judges

No less than the Constitution stipulates that the country’s judicial system be the repository of judicial competence, integrity, independence and efficiency because every Filipino has the right to a speedy, honest and scholarly dispensation of justice.

This constitutional proviso was fulfilled with the creation of PHILJA by virtue of Administrative Order No.35-96 in 1996 during the stewardship of Chief Justice Andres R. Narvasa and institutionalized by Republic Act No. 8557 in 1998 with PHILJA’s designation as a separate unit within the Supreme Court.⁴

As the country’s judicial “training school,” PHILJA is responsible for implementing a curriculum for judicial education and a roster of seminars, workshops and trainings designed to “upgrade legal knowledge, moral fitness, probity, efficiency and capability” of the members of the judiciary.

PHILJA Chancellor Ameurfina A. Melencio Herrera explains that the Academy’s educational principles include the development of a judicial person, which addresses the values, attitudes, behaviors and outlook of the members of the Bench; enhancement of judicial skills, which looks into the management, administrative and decision-writing skills; and improvement of judicial knowledge, which focuses on the latest developments in the substantive and procedural law.

The Philippine Judicial Academy (PHILJA) sows the seeds of judicial excellence nationwide by training thousands of justices, judges and court personnel through an average of four judicial seminars a month. A total of 1,184 judges, 841 clerks of court, 361 court attorneys and 2,937 court personnel benefited last year from PHILJA’s 53 seminars which added up to 181 training days.

Future Directions

Justice Herrera shares her personal dream for PHILJA to become Asia-Pacific’s regional leader in judicial education. Apart from physical improvements of the PHILJA Development Center, she identifies the recruitment of more full-time faculty, development of long-term curriculum, formulation of the distance education plan (DEP) for far-flung provinces, participation in international conferences, continued implementation of the JURIS project, and the institutionalization of mediation nationwide as key targets for the next year.

A major PHILJA project, the Justice Reform Initiatives Support (JURIS) Project is supported by the Government of Canada and focuses on judicial education, reform advocacy, and mediation and alternative dispute resolution.

Institutionalizing Distance Education

Should distance education and open learning be institutionalized through legislation? This question faced the Subcommittee on Distance Learning and Alternative Methods of Education (Committee on Higher and Technical Education), headed by Representative Mario “Mayong” Joyo Aguja (Party List, AKBAYAN), as it started its deliberation on two legislative measures proposing to institutionalize an open learning system of higher education.⁵

The two measures are House Bills 2276 and 3784, respectively authored by Reps. Michael John “Jack” Duavit (1st District, Rizal) and Carlos Cojuangco (4th District, Negros Occidental).

In his explanatory note to HB 2276, Rep. Duavit stated that the open learning system responds to the need of working people to acquire formal higher education and improve their professional careers. He said that the open learning system dispenses with the requirement to take the courses in conventional classrooms, thus allowing the students to study while in the office, factory, farm or workplace. HB 2276 mandates the Commission on Higher Education (CHED) to implement the open learning system and designates the University of the Philippines Open University (UPOU) as the national open university that shall set up model programs to develop this mode of learning.

Similarly, Rep. Cojuangco stated in his explanatory note to HB 3784 that his bill seeks to institutionalize and at the same time regulate the operation of colleges and universities that offer open and distance education. His bill also provides an opportunity for out-of-school youth and adults to pursue their tertiary education without making this get in the way of their employment and livelihood.

In a recent meeting of the subcommittee, several resource persons expressed the view that there is no need to enact a law that will institutionalize distance education and open learning.

UPOU Chancellor Felix Librero said it is not really necessary to formalize, through legislation, the implementation of open learning in the country. “Mindsets, attitudes, and beliefs cannot be legislated. They can only be developed in the person over a long period of time,” he stressed. Librero clarified that open learning is a “philosophy of learning that is learner-centered and flexible, enabling learners to learn at the time, place and pace which satisfies their circumstances and requirements.”

Develop the mindset instead. What is important, he added, is to develop instead the mindset of educators from a teacher-centered learning environment to that of a learner-centered learning environment. Librero argued that “legislating techniques for teaching and (the use of) media in instructional activities will not improve the sorry state of the educational system.”

The UPOU chancellor said that there are six basic characteristics of distance education, as identified by Desmond Keegan of the United Kingdom Open University. These, he said, are as follows: separation of learner and teacher, which distinguishes it from face-to-face teaching; private, self-study; use of technical media, such as print, audio, video and computers; two-way communication between student and teacher; possibility of occasional meetings and face-to-face interaction; and recourse to an “industrialized” form of education.

Role of CHED

Libero informed the body of the role of the CHED in the implementation of distance education programs. The CHED’s Technical Committee of Reviewers on Open Learning and Distance Education, he said, for the past four years has set standards to ensure the quality of distance education in the Philippines. “It has been evaluating institutions offering degree programs in the distance mode, and proposing approaches to control the quality of distance education in the country,” he stated.

P25 Million Needed for UPOU

Nonetheless, Librero welcomed the proposal to designate the UPOU as the National Open University even as it remains part of the UP system. He said the UPOU is in the best position to design model curricular programs on distance learning mode.

However, he said that for this designation, UPOU must receive additional budgetary allocation of not less than P25 million annually so that it can perform more effectively its functions, including the development of model programs and technologies, research, and production of quality instructional materials.

The representatives from the South East Asia Interdisciplinary Development Institute (SAIDI) and the Coordinating Council of Private Educational Associations (COCOPEA) echoed the statement of Librero that it is not necessary to enact a law adopting an open system of education in the Philippines.

Non-Representation of Private Sector

Dr. Rosalina Fuentes of SAIDI further objects to the proposed designation of the UPOU as the National Open University. She argued that it creates a certain form of bias and does not level the playing field because of non-representation of the private education sector in decisions pertaining to the open learning system.

For his part, Mariano Piamonte of the COCOPEA explained that the bills are no longer necessary since the CHED is already authorized to approve and regulate distance learning. Stressing that there are already many institutions offering distance education, he proposed that the bills focus instead on providing scholarship grants to students who cannot afford to obtain a degree through the traditional mode of learning.

Lawyer Carlos Almelor of the Professional Regulations Commission (PRC) also agreed to dispense with the proposed legislative measure saying that the CHED, as a regulating body, already has the power to issue policies regarding distance learning.

CHED Favors Bills

On the other hand, Dr. Ma. Cristina Padolina of CHED supports the enactment of a law institutionalizing the open learning system. She opined that the proposed law will allow the open learning system to gain access to funds and other support mechanisms that will also make it more affordable to students. “If there is a law, then we could acquire a budget that would better help those who want to pursue higher education through this mode of learning,” she said. Padolina took the opportunity to respond to the concerns of the private educational institutions regarding the perceived bias given to state-owned schools, particularly in the grant of authority to offer programs. She stressed that the CHED’s efforts are always geared towards leveling the playing field in the education sector.

Meanwhile, Theresita Atienza of the Polytechnic University of the Philippines (PUP) supports the idea of a government a subsidy to pursue open learning program, saying that this mode of learning is more expensive because of the necessary use of technology.

Rep. Gregorio Ipong (2nd District, North Cotabato), who sponsored the measures on behalf of the authors, urged the resource persons to submit to the Subcommittee their respective proposals to further refine the bills.

Senate Bill

Senator Jinggoy Ejercito Estrada introduced a bill institutionalizing the open learning and distance education system in the Philippines, appropriating funds therefore and for other purposes, that allows for wider access to educational opportunities by overcoming barriers resulting from geographical isolation and personal or work commitments.⁶ Distance Education - a method of learning and teaching employing print, radio, television, computer-based communications, satellite broadcasting teleconferencing or other educational technologies that allows students to study on their own without having to regularly attend classes in conventional classrooms.

The Act shall apply to public and private higher educational institutions with existing open and distance learning programs, and to other institutions that shall later be authorized as qualified implements of the System.

The Commission on Higher Education (CHED) shall plan, set standards, coordinate, monitor and authorize the effective implementation of open learning and distance education in the country in accordance with the provisions of the proposed law. It shall formulate, promulgate and implement the necessary rules and regulations to maintain same quality of education and uniform standards of performance for both distance and residential students of participating higher education institutions; monitor, evaluate and effect the continuation or closure of programs in accordance with the provisions of the implementing rules and regulations; review and approve proposals from educational institutions for new open and distance education programs, and; recommend to the Department of Budget and Management supplemental budget for open learning and distance education programs of participating higher education institutions.

The proposed bill likewise states that higher education institutions seeking CHED approval to establish open and distance learning programs shall be evaluated based on the following criteria, among others, to be defined by the CHED: qualified faculty with experience and/or training in open and distance education, relevant curricular programs, appropriate instructional materials, appropriate student support services and delivery systems, linkages with other appropriate institutions as resource centers and, recognized research programs on open and distance learning.

Meanwhile, the UPOU shall be designed as the national open university. It shall set up the model programs, undertake relevant research and development projects, assist other interested higher education institutions in developing open learning and distance education programs and provide technical assistance to the CHED in open and distance education matters. The University of the Philippines Open University shall support start up programs for duly recognized higher education institutions and shall provide necessary support for the educational institution’s pursuit of an educational system catering to and specific to the needs of the institution.

Online Law Degree in California – A Model⁷

Distance degrees are largely available in California. You can become a lawyer there with this method. To practice law in another state later will usually require a minimum of 3-5 years law practice in California and even then some states will not allow the transfer since the California distance law schools are NOT ABA accredited.

The following information applies to other states: If applicant, a graduate of a non-ABA-approved school, passes a bar examination in another state, is the applicant eligible to take your examination without additional legal education?

Passing the bar in any state does not usually allow you to practice law in another state. The states do not have reciprocity as far as I am aware. You have to take and pass the bar in each state you want to practice in.⁸

Online Law Schools are accredited by the Accrediting Commission of the Distance Education and Training Council (DETC) and approved as a degree-granting institution in the State of California by the Bureau of Private Postsecondary and Vocational Education. Online Law Schools are also registered with the California Committee of Bar Examiners.

Online law schools today are graduating 37% of all attorneys practicing in major metropolitan areas according to Eduthink Consultancy, and this is projected to grow at a 53% compound annual growth rate through 2012. You can choose to specialize and acquire an online Master of Science degree in Elder Law, Health Law, Human Resource Law, Managerial Law or undertake a Juris Doctor (JD) or Excecutive Juris Doctor (EJD) program.

International Data Corporation (IDC) now has over 50 industry and financial analysts tracking distance learning and has three analysts dedicated to tracking distance learning law schools. The results of their research show that the probability of passing the bar exam (the test you take to practice law in a given state or in another country) actually is higher for those students of online law schools who have earned online law degrees while working full time. IDC attributes this to the fact that real-world experience when combined with law school is a powerful combination.

The Facts⁹

Gartner Group reports in their study Learning The Law Online that the median salary of attorneys working in state government is $67,910, rising to $131,970 for senior-level attorneys who work for companies and universities.
InfoLaw Research & Analysis projects that distance learning law schools will grow at a compound annual growth rate of over 34% driven by advances in Internet technologies and the urgent need for international law attorneys to assist with global mergers and acquisitions throughout Europe, Africa, India and the United States.

JRC Consultancy, a UK-based firm specializing in commercial and criminal law is forecasting the growth of tax attorneys and legal specialists to surpass supply throughout the entire Western European region through 2012. The median starting salary for a beginning attorney with an international tax background is expected to be in excess of $75,000 a year growing to $120,000 with fifteen years of experience.

Forrester Research forecasts that online law degrees with specialization in criminal, commercial, tax, international business, international tax and criminal law will grow over 46% per year through 2012 globally – driven by the strong showing of graduates from online law schools and the more efficient use of the Internet for global training. Forrester also predicts that the majority of online law degrees will be obtained by students at least 2,000 miles from their school – truly the era distance learning for law has arrived.

The U.S. Department of Labor, Bureau of Labor Statistics is very positive in their assessment of the future demand for legal professionals. In their latest study released in May, 2005 they state that the median earnings for all lawyers was $90,290 in 2004, with the top 10% earning $145,600 or more per year. Their forecast shows robust growth for all categories of law professions through 2012.

Conclusion

This report discusses the state policy on Philippine education starting from its mandate to provide education opportunities to individuals aspiring for higher education and improved qualifications but who are unable to take advantage of traditional modes of education and the surrounding context in the shaping of the Philippine educational system.

Emphasis was placed on the present provisions of the laws and policies on how legal education can be implemented by distance learning which is rather limited and very restrictive, at present.

The Constitution provides for the Supreme Court to supervise and control the practice of legal profession in the Philippines which would have a major influence and impact in the formulation of policy in allowing informal legal education through online law schools as an alternative to the traditional brick and mortar facilities as commonly known in the cyber-world. If the government is really serious in allowing the idea of legal education through online law schools, the effort should be concerted on all fronts; such as the legislature to pass the necessary bills, the judiciary to formulate the rules, and the executive branch to finance and provide the necessary funds for its implementations.

By attending distance learning law schools, many future attorneys are making the justice system work by advocating their clients’ position in court, in writing and even in the media and help in the dispensation of justice especially in far flung region and areas of the Philippines where there is a dearth of legal help.

1. Philosophy of Philippine Education; Elevaso, Aurelio, et al; National Bookstore, 1995 [↩]
2. citation needed [↩]
3. UP Newsletter Volume xxviii Number 03 2007-03-01 [↩]
4. citation needed [↩]
5. citation needed [↩]
6. Senate Bill No. 451, First regular session of the Fourteenth Congress of the Republic of the Philippines [↩]
7. citation needed [↩]
8. A graduate of ABA-Approved Law School once passed does not have to pass the Bar in the State he/she wants to practice law. It is recognized in all 50 States and the U. S. territories. [↩]
9. citation needed [↩]

• ITLJ 4-2
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administrator April 28th, 2008

The Proposed House Bills on CyberCrime Prevention
by Kristi Ann P. Rutab

Introduction

The Philippines came into the international limelight when a Filipino, Onel de Guzman, was singled out as the origin of the virus dubbed as “Love Bug” which was unleashed on May 4, 2000. It was considered as the most destructive and sophisticated virus ever conceptualized and perpetuated in the Internet. According to final estimates, it had invaded tens of millions of computers representing 80% of the computer systems worldwide and had caused a staggering financial damage amounting to $10 billion and irreparable damages to computers in several countries like Hongkong, Malaysia, Germany, Belgium, France, the Netherlands, Sweden, Great Britain and the United States.¹

This scenario has alarmed the whole world and prompted all nations; most especially the developed countries whose business endeavors depend largely on the cyber infrastructures, to look more closely into computer-related crimes known in the broad sense as “cybercrimes.” Moreover, there was a growing concern for legislations to apprehend and prosecute the criminals.

The Internet is considered as one of humankind’s greatest achievements. While it serves as an excellent tool for investors, allowing them to easily and inexpensively research investment opportunities, it is also an excellent tool for fraudsters.² The Internet allows individuals or companies to communicate with a large audience without spending a lot of time, effort or money by simply building an Internet web site and posting messages online.

This technological breakthrough has made telecommunications, banking systems, public utilities, emergency systems and forms of business endeavors to be conducted easily; it is also as easy for fraudsters to make their messages look real and credible, inflicting harm to others on a wide scale. Although it is often difficult to determine the motives of these digital outlaws, the result of their conduct threatens the promise of the Internet by reducing public confidence and consumer trust in the whole system.³

Cybercrimes Defined

What are cybercrimes and how do cybercriminals go through their illegal pranks?

Cybercrimes refer to offenses committed using a cyber tool such as a computer, web site, e-mail, or any other electronic document.⁴ Cybercrimes can be divided into three major categories, namely: ⁵

1. Cybercrimes against persons;
2. Cybercrimes against property; and
3. Cybercrimes against government

Cybercrimes against persons include transmission of child pornography, harassment with the use of a computer, and cyber-stalking where the victim is repeatedly flooded with threatening messages. Harassment with the use of a computer usually comes in the form of e-mail bombing where messages are sent to a target recipient repeatedly thus flooding his mail box with junk mail; spamming which is often used for trade and promotion; spoofing which refers to the faking of the e-mail sender’s identity and tricking the target recipient into believing that the e-mail originated from the supposed sender; linking/framing which involves displaying one’s site content on another’s web page without permission; denial of service which is an explicit attempt by attackers to prevent legitimate users of using the service.⁶

Cybercrimes against property include unauthorized computer trespassing through cyberspace, computer vandalism, creation and transmission of harmful programs or viruses to computer systems, hacking and cracking which refers to the unauthorized access or interference in a computer system/server or information communication system, and software piracy.⁷

Cybercrimes against government can be in the form of cyber terrorism in which the cyberspace is used by individuals and groups to threaten governments and to terrorize all citizens of the country. This can take the form of cracking into a government or military web site.⁸

As enumerated, it can be inferred that any activity which offend human sensibilities using computer systems can be within the ambit of cybercrimes. It can also be gathered that cybercrimes make use of the same resources as the Internet and the offenders are no ordinary individuals or groups but are those who have a thorough understanding of this superhighway of information. This makes it easy to commit even in a jurisdiction that does not require physical presence and oftentimes are varied in their design posing difficulty to make an electronic trail. Furthermore, due to their intellectual prowess, the offenders commit crimes and make them appear not clearly illegal.

With the growth of electronic commerce and the borderless characteristic of the World Wide Web, there is an escalating danger posed by cybercrimes. These have taken many faces and are committed in diverse fashion. Some of these crimes committed, like that of de Guzman, have been exposed to the world but some remain unnoticed until the damage has become vast. There are several instances of illegal access and damages around the world that remain unreported. Because of this situation, if left unchecked or unpunished, cybercrimes will adversely affect the virtual world.

Legislation against cybercrimes should be in place for the prevention, apprehension, and prosecution of cybercrimes. Existing laws are likely to be unenforceable against cybercrimes which greatly differ from the traditional terrestrial crimes committed considering that electronic data are intangible property. This seeming lack of legal protection poses dangers to business and economy and creates a threat to national security.

Legislations on Cybercrime Prevention

De Guzman, in spite of his admission of the crime he has committed by unleashing the “Love Bug” virus that caused so much damages, went out unscathed due to the lack of Philippine legislation on computer-related crimes at the time it was committed. While there were existing laws in the United States and in other countries who were victims of the virus, extradition cannot be applied. Moreover, government authorities decided that the other crimes he was charged with, such as credit card fraud, did not also prosper due to insufficient evidence.⁹

This scenario had left legal experts in disbelief and it prompted nations worldwide to take action. India’s National Association of Software and Service Companies (NASSCO), responding to the scenario, called for global regulations to deal with the future de Guzman’s of the world and asking every country which uses the Internet to adopt cyber laws¹⁰ The call had also raised concern in the Philippines because the absence of criminal liability for the “Love Bug” perpetrator could make cyber criminals seek the Philippines as a safe harbor for their illegal acts.

Six weeks after the “Love Bug” phenomenon, the Philippine government responded to the call when then President Joseph Estrada signed into law republic Act 8792, known as the Electronic Commerce Act.” The law seeks, among others, to ensure network security through the penal provisions particularly Section 33 (a) and (b) which states:¹¹

Section 33(a): “Hacking or cracking which refers to the unauthorized access into or interference in a computer system/ server or information and communications system; or any access in order to corrupt, alter, steal or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, attraction, theft or loss of electronic data messages or electronic document shall be punished by a minimum fine of P 100, 000.00 and a maximum commensurate to the damage incurred and mandatory imprisonment of six months to three years.”

Section 33(b): “Piracy or unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, removal, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature, or copyrighted word including legally protected sound recordings or phonograms or information material in protected works, through the use of telecommunications networks, such as, but not limited to, the interest, in a manner that infringes intellectual property rights shall be punished by a minimum fine of P 100, 000.00 and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.”

RA 8792 is a landmark law in the history of the Philippines for it made the Philippines a legitimate player in the global marketplace.¹² It has placed the Philippines among the countries with a law against cybercrimes.

Section 33 (a) of RA 8792 was the basis got the arrest of Cesar Manalac for hacking into the computer systems of his former employer Thames International Business School.¹³ Manalac’s conviction marks the enforcement of RA 8792. It is by virtue of the same provision that the Supreme Court, on February 4, 2004 disbarred Danilo de Guzman, a lawyer from the Balgos and Perez law firm for hacking the Mercantile Law Bar Exams in September 2003 thus giving rise to a leakage in the prestigious bar examinations.¹⁴

While RA 8792 is already in place, it was found to have failed to address all the forms of cybercrimes that are enumerated in the Budapest Convention on Cybercrimes, namely:¹⁵

• Title 1: Offenses against confidentiality, integrity and availability of computer data and systems which include illegal access, illegal interception, data interference, system interference, misuse of devices;
• Title 2: Computer-related offenses which include computer-related forgery and computer-related fraud;
• Title 3: Content-related offenses as child pornography;
• Title 4: Offenses related to infringement of copyright and related rights.

Furthermore, enforcing the law with the use of the existing law enforcement guidelines as embodied in the Revised Penal Code, as amended, may not work for cybercrimes. Unlike the traditional, terrestrial crimes which deal with corporeal evidences, cybercrimes deal with electronic data which are intangible evidences. Take the case of theft of electronic data which does not deprive the owner of the data; rather, the thief gets the data but the data still remain with the owner.¹⁶ In this case, it may be argued that there was no theft because the data were not taken but were simply copied. Also, due to the borderless nature of the World Wide Web, the victim may be in one country but the criminal is in another country which makes it difficult to apprehend, investigate, and prosecute. Moreover, cybercrimes are committed in perfect anonymity and when launched, they attack many victims simultaneously. Thus, the Budapest Convention calls for international mutual cooperation because of the difficulty to apprehend the cyber criminals in spite of the existing laws.

House Bills on Cybercrime Prevention

Because of the noted inadequacies of the Electronic Commerce Law or RA 8792, several bills have been proposed in the House of Representatives as early as 2001 in the 12th Congress but until now, none of these bills have been passed into law.

Among the House Bills filed in the 12th Congress are:

1. HB 1310 known as the “Anti-Computer Fraud and Abuses Act of 2001″ was filed by Congresswoman Nanette Castelo-Daza on July 24, 2001. This bill defines computer fraud and other cyber-related fraudulent activities covered by computer forgery, damage to computer data or computer programs, computer sabotage, unauthorized access and unauthorized interception as well as obscenities. It likewise provides the necessary penal provisions that must be imposed upon the violators of the offense, both fine and imprisonment. Finally, it accords authority to the National Security Council to conduct investigation on computer – related crimes vis-à-vis its effect on national security. It was referred to the Committee on Science and Technology on 30 July 2001 and secondarily referred to the Committee on Revision of Laws.¹⁷
2. HB 3241 known as “Anti-Cybercrime Act of 2001″ was filed by Congressman Eric D. Singson on September 25, 2001. The objective of this act is to protect and safeguard the integrity of computers, computer systems, computer networks, computer servers, database, and the information and data stored therein from computer users who resorted to computer fraud, abuses and other cyber-related fraudulent activities by providing penal sanctions to the perpetrators in creating a coordinating body which shall coordinate, collate and synergize efforts of all law enforcement agencies in combating cybercrimes. It was referred to the Committee on Science and Technology on 01 January 2001 and secondarily referred to the Committee on Revision of Laws.¹⁸
3. HB 4083 known as the “Anti -Cybercrime Law” was filed by Congressman Amado T. Espino, Jr. on December 12, 2001. The bill recognizes the policy of the State to protect the society against the upsurge of computer fraud, destruction of electronic systems and properties and proliferation of crimes brought about by the continuing globalization of computer networks. It is imperative to maintain the confidentiality, integrity, reliability and availability of computer systems, networks and computer data in the furtherance of national interest and security. It is in this context that the State recognizes its duty to safeguard its interest against the image of electronic fraud that tends to disrupt peace and order in the cyber space. It was referred to the Committee on Science and Technology on 19 December 2001 and secondarily referred to the Committee on Revision of laws.¹⁹
4. HB 5560 (An Act Preventing and Penalizing Computer-Related Crimes, Further amending for the purpose certain pro0visions of Act No. 3815, as amended, otherwise known as the Revised Penal Code, was filed by Congresswoman Imee R. Marcos on December 17, 2002. The bill seeks to amend certain provisions of Act No, 3815 as amended, otherwise known as “the Revised Penal Code” by including erasures, substitutions, alterations, revelations and concealments or destruction of documents by the use of computers as a crime. It was referred to the Committee on Science and Technology on 13 January 2003 and secondarily referred to the Committee on Revision of Laws.²⁰

The Committee on Science and Technology and the Committee on Revision of Laws, after a study of the four bills filed in the 12Th Congress, were unanimous in saying that E-Commerce Law or RA 8792, while comprehensive in identifying the types of cybercrimes does not specify which acts constitute cybercrimes and it also does not address cybercrimes sited in the Budapest Cybercrime Treaty.²¹ Thus, there is a need for a stronger and more specific law to combat cybercrimes. The Information Technology E-Commerce Council (ITECC) was tasked to consolidate all these anti-cybercrime bills filed in the 12th Congress as a substitute bill which conforms with the international standards set under the Cybercrime Convention of the Council of Europe signed in Budapest in 2001.²²

As the ITECC was drafting the consolidated bill, House Bills on computer-related crimes were likewise refined and filed anew in the 13th Congress. Among these bills are:

1. HB 337 (An Act Preventing and Penalizing Computer-Related Crimes, Further Amending for the Purpose Certain Provisions of Act No. 3815, as Amended, Otherwise Known as the Revised Penal Code) filed by Congresswoman Imee R. Marcos on 01 July 2004 and was referred to the Committee on Revision of Laws on 27 July 2004.²³
2. HB 1246 (An Act Preventing and Penalizing Computer Fraud, Abuses and other Cyber-related Fraudulent Activities and Creating for the Purpose the Cybercrime Investigation and Coordinating Center, Prescribing its Powers and Functions and Appropriating Funds, therefore) known as the “Anti-Cybercrime Act of 2001″ was refined and filed anew by Congressman Eric D. Singson on 07 July 2004.²⁴
   The draft of the consolidated bill created by the ITECC known as the Philippine Cybercrime Prevention Act of 2003 had to undergo frequent changes Patterned after the Budapest Convention on Cybercrime, the bill known s the “Cybercrime Prevention Act of 2004″ or HB02093 was filed in the 13th Congress on 04 August 2004 by Congressman Amado T. Espino, Jr. The bill seeks to impose penalties for the following cybercrimes: illegal access and interception to the whole or any part of a computer system or network, illegal data and system interference, misuse of devices, computer forgery and fraud, and unsolicited commercial communication.²⁵ It also penalizes offenses related to child pornography through the Internet or computer network, the infringement of intellectual property rights, and other violations of the Revised Penal Code, the Consumer Act and other related laws using computer systems, the Internet or electronic transactions. Corporations would also be held liable for crimes committed in behalf and for the benefit of a juridical person including company officials and persons who conspire to commit cybercrimes including those helping or abetting to commit any crime under the Cybercrime law will be held liable.²⁶
3. HB 3777 (An Act Defining Cyber crime, Providing for Prevention, Suppression and Imposition of Penalties Therefor and for Other Purposes), known as the “Cybercrime Prevention Act of 2005″ was filed by Congresswoman Halili Cast Abayon on February 2, 2005. The bill was a refinement of the bill referred to the Committee on Information and Communications Technology on February 28, 2002. The bill seeks to define cybercrime, identify punishable act involving computers, provide penalties, determine legal procedures for the investigation and prosecution of cybercrimes, clarify jurisdiction and provide for a clause on mutual assistance and cooperation. It provides for the creation of the Cybercrime Investigation and Coordinating Center.²⁷

A new bill was filed, HB003218 known as “Department of Information and Communications Technology Act of 2005″ was filed by Congressman Simeon L. Kintanar on October 27, 2004. The bill prescribes the mandate of the department and its organizational structure.²⁸

Several bills have been filed since 2001 and the 13th Congress has ended but there was no law that has been enacted up to this point in time. In fact, on January 28, 2004, Richard Downing, senior legal counsel of the US Department of Justice Computer Crime and Intellectual Property Section and Joel Michael Schwarz, trial attorney of the US Department of Justice, conducted a workshop on the US Cyber crime Law for the ITECC intended to help local legislators and policy makers to improve the draft of the Cybercrime Prevention bill pending in Congress. As Downing said, “If you delay enacting a law against cybercrimes, it will only embolden those who commit these electronic crimes.²⁹

Inspite of all these calls for legislation to prevent cyber crimes, the bills are still pending in Congress. Meantime, the threat of cyber crimes continues to be a growing national concern. In a two-day “Legislators and Experts Workshop on Cyber crime” in October 2007, Ray Anthony Roxas-Chua, Chairman of the Commission on Information and Communications Technology read a joint declaration formulated by the participants which states, ” We hereby declare our support for Philippine accession to the Budapest Convention on Cybercrime and the expeditious passage of an implementing anti-cybercrime law to prevent, mitigate, and deter the commission of ICT related crimes, to foster cooperation within the ICT community, government, private sector and civil society in promoting an atmosphere of safe computing.”³⁰

After the 14th Congress was convened, two bills that are a refinement of previous bills have been filed. These bills are:

1. HB 190 known as the “Cybercrime Prevention Act of 2007″ was filed by Congressman Juan Edgardo M. Angara and several co-authors on July 2, 2007 and was referred to the Committee on Justice on July 24, 2007. The bill defines cybercrimes, identifies punishable acts involving computers, determines the legal procedure for the investigation and prosecution of cyber crimes, clarifies jurisdi8ctions, provides for a clause on mutual assistance and cooperation and identifies a local body that shall be responsible for providing a 24/7 assistance to foreign entities in the resolution of cybercrime cases.³¹
2. HB 1323 (An Act Preventing and Penalizing Computer Fraud, Abuses and Other Cyber-related Fraudulent Activities and Creating for the Purpose the Cybercrime Investigation and Coordinating Center, prescribing its powers and Functions and Appropriating Funds therefore) known as the “Anti-Cybercrime Act of 2001″³²

Conclusion and Recommendations

As evidenced by the House Bills filed in Congress since 2001, with all the consolidation, revisions and filing anew of the improved version of the bills and trying to align these with the Budapest treaty, Congress has yet to act on the pending bills aimed at cyber crime prevention in the Philippines. The government is taking its time in passing an important law that will safeguard the country from the dangers posed by cybercrimes. The E-Commerce Law or RA8792, as has been evaluated by technical experts, is not adequate to address the emerging cybercrimes. Moreover, it does not meet the international standards set in the Budapest Cyber crime Treaty and therefore does not merit the international mutual assistance and cooperation.

Have the Filipinos not learned any lesson from the “Love Bug” menace by a Filipino in 2000? Or is the Philippines opening its gates to be known as a haven for cyber criminals?

On December 11, 2007, it was reported by Monchito Ibrahim, the newly appointed commissioner of the Commission on Information and Communications Technology (CICT), that a consolidated version of a bill creating the proposed Department of Information and Communications Technology would be drafted by a technical working group created for the purpose.³³ But this was already filed in the 13th Congress by Congressman Kintanar through HB03218.

It can be surmised that this is an endless strife. Yet the upsurge of cybercrimes continues and because of its borderless characteristic, if left unchecked and unpunished, the adverse effect on the growth of e-commerce will be too great. Cybercrimes as noted by many experts pose skyrocket dangers to the security of particular countries and world society as a whole.³⁴

But legislation to combat cyber crimes is only one side of the coin. How to put teeth to the law is what matters most. Laws are useless if law enforcement agencies do not have the computer education and training necessary in this highly technological world. The proposal to establish e-courts to litigate cybercrimes is great but judges must possess the technical know-how.

With all these circumstances, the following recommendations are hereby forwarded:

1. That a law on cybercrime prevention to supplement RA 8792 and aligned with internationally accepted standards be passed without delay;
2. That a special agency with the technical expertise be created to monitor and regulate cyber activities;
3. That law enforcement agencies be manned by a new breed of law enforcement personnel with adequate computer skills and technical expertise and thoroughly trained to operate highly technical equipments and facilities since the re-training of personnel without computer background would be futile;
4. That adequate resources be provided to the law enforcement agencies so that they can acquire the necessary tools, equipment and technical skills and continuously upgrade them for the defense of network systems from cyber crime attacks;
5. That prevention is still the best tool against cybercrimes; hence, technologies like firewalls, encryption technologies and other infrastructure systems be required for all computer network systems;
6. That cooperation among all sectors of society to combat cybercrimes be forged and advocacy to increase awareness of the dangers of cybercrimes be strengthened; and
7. That everyone becomes a responsible and ethical user of computers and information systems.

1. Philippine Response: Technical Mechanism to Combat TNC’s Conclusion, < http://www.pctc.gov.ph/tncunrr.htm > [↩]
2. Internet Fraud, < http://www.crime_research.org/articles/Internet_fraud_0405 > [↩]
3. Legal and Regulatory Issues in the Information Economy/ Cybercrimes, < http://en.wikibooks.org/wiki/ > [↩]
4. Why is there a need for Cyber law?, < http://www.cyberlawindia.com/cyberindia/cybfaq.htm > [↩]
5. Ibid., Legal and Regulatory Issues in the Information Economy/ Cybercrimes, < http://en.wikibooks.org/wiki/ > [↩]
6. Loc. Cit., < http://en.wikibooks.org/wiki/ > [↩]
7. Loc. Cit., < http://en.wikibooks.org/wiki/ > [↩]
8. Loc. Cit., http://en.wikibooks.org/wiki/ > [↩]
9. Love Bug Case Dead in Manila, < http://www.wired.com/politics/law/news/2000/08/38342?currentpage=1 > [↩]
10. Loc. Cit., < http://www.wired.com/politics/law/news/2000/08/38342?cur rentpage=1 > [↩]
11. The Philippine E-Commerce Law _ Republic Act No. 8792, < http://www.digitalfilipino.com > [↩]
12. Salient Features of RA 8792, < http://www.digitalfilipini.com/writings_articles.cfm?id=19 > [↩]
13. E-Commerce Act or RA 8792 by Gilbert E. Lumantao, < http://www.batasayti.freeservers.com/customs2.html > [↩]
14. Mercantile Law Bar Leakage, < http://www.arellanolaw.net/publish/itlj_issue1_00.html > [↩]
15. Budapest Cybercrime Convention, < http://www.conventions.coe.int/Treaty/EN/Treaties/1_html/185htm > [↩]
16. RA 8792 Annotations, < http://www.disini.ph/downloads/EcomIRR%20annotations.pdf > [↩]
17. House of Representatives, House Bills and Resolutions, 12th Congress,< http://www.congress.gov.ph > [↩]
18. Loc. Cit., < http://www.;congress.gov.ph > [↩]
19. Loc. Cit., < http://www.congress.gov.ph > [↩]
20. Loc. Cit., < http://www.congress.gov.ph > [↩]
21. Digital Divide, < http://www.geocities.com/is201_mtan/link91.html > [↩]
22. Sison: Bill v. Computer fraud, < http://www.sunstar.com.ph/static/pam/2003/10/27/oped/mark.allen.c.sison.congress > [↩]
23. House of Representatives, House Bills and Resolutions, 13th Congress, < http://www.congress.gov.ph > [↩]
24. Loc. Cit., < http://www.congress.gov.ph > [↩]
25. Loc. Cit., < http://www.congress.gov.ph > [↩]
26. Cybercrime prevention bill to be refilled in new Congress, < http://www.ebalita.net/go/news/news.ph?id=2151 > [↩]
27. House of Representatives, House Bills and Resolutions, 13th Congress, < http://www.congress.gov.ph > [↩]
28. Loc. Cit., < http://www.congress.gov.ph > [↩]
29. US urges Philippines to Implement Cybercrime Law by Geoffrey P. Ramos, < http://computerworld.co.nz/news.nsf/news/EE981833038061A2cc256/E2800632?43 > [↩]
30. Legislation against Cybercrimes pushed, < http://www.gmanews.tv/story/66031/ > [↩]
31. House of Representatives, House Bills and Resolutions, 14th Congress, < http://www.congress.gov.ph > [↩]
32. Loc. Cit., < http://www.congress.gov.ph > [↩]
33. Consolidated DICT bill seen next week, < http://services.inquirer.net/print.php?article_id=106218 > [↩]
34. Actual Problems of Fighting Cybercrimes, < http://www.crime.research.org/library/nomokonov.html > [↩]

• ITLJ 4-2
• Comments(1)

administrator April 28th, 2008

The Efficacy of the Writ of Habeas Data in Affording Protection to One’s Right to Privacy
by Fraulein B. San Pedro

The Supreme Court, pursuant to its rule-making power, promulgated the Rules on the Writ of Habeas Data which took effect on February 2, 2008. The said Rules were promulgated in view of the alarming increase in number of incidents of violations of, not to mention worsening human rights condition in the country, which has already tallied more than 900 victims of extrajudicial killings and 200 more victims of enforced disappearances in the last five to six years.

The High Tribunal, with the aim of further strengthening the role of the Judiciary as the last bulwark of defense against violations of the constitutional rights to life and liberty of the people in an information-driven age, has come up with the rules. The writ in general is designed to safeguard individual freedom from abuse in the information age by means of an individual complaint presented in a constitutional court. Specifically, it protects the image, privacy, honor, information, self-determination, and freedom of information of a person.

Supreme Court Chief Justice Reynato Puno describes this right to truth as fundamental to citizens of countries in transition to democracy burdened by a legacy of massive human rights violations. “The exercise of this right is particularly crucial in disappearances driven by politics because they usually involve secret execution of detainees without any trial, followed by the concealment of the body with the purpose of erasing all material traces of the crime and securing impunity for the perpetrators. Indeed, truth is the bedrock of all legal systems, whether the system follows the common law tradition or the civil tradition. Justice that is not rooted in truth is injustice in disguise. That kind of justice will not stand the test of time, for it is not anchored in reality but on mere images.”¹

Brief History of the Writ of Habeas Data

The literal translation from Latin of Habeas Data is “you should have the data”. Habeas Data is a constitutional right granted in several countries in Latin-America. It shows variations from country to country, but in general, it is designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honour, information self-determination and freedom of information of a person.²

Interest in the right of privacy increased in the 1960s and 1970s with the advent of information technology (IT). The surveillance potential of powerful computer systems prompted demands for specific rules governing the collection and handling of personal information. In many countries, new constitutions reflect this right. The genesis of modern legislation in this area can be traced to the first data protection law in the world enacted in the Land of Hesse in Germany in 1970 This was followed by national laws in Sweden (1973), the United States (1974), Germany (1977) and France (1978).³ In view of the increased interest in the right of privacy, certain European legal mechanisms are traced to be the origins of the Habeas Data writ, Europe being the birthplace of the modern Data Protection. As a matter of fact, certain German constitutional rights are identified to be the direct progenitors of the Habeas Data right, particularly the right to information self- determination, which was created by the German Constitutional Tribunal upon interpretation of the then existing rights of human dignity and personality. The right to information self-determination pertains to the right of a person to know what type of data are stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data.⁴

Two crucial international instruments evolved from the above-mentioned laws. The Council of Europe’s 1981 Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data and the Organization for Economic Cooperation and Development’s Guidelines Governing the Protection of Privacy and Transborder Data Flows of Personal Data articulate specific rules covering the handling of electronic data. The rules within these two documents form the core of the Data Protection laws of dozens of countries. These rules describe personal information as data which are afforded protection at every step from collection through to storage and dissemination. The right of people to access and amend their data is a primary component of these rules.

The other direct predecessor of the Habeas Data right is the Council of Europe’s 108th Convention on Data Protection of 1981. The said convention was had for the purpose of securing the privacy of an individual as regards the automated processing of personal data. To afford this protection, several rights are given to an individual, which includes the right to access their personal data held in an automated database.⁵

The first country to implement Habeas Data was the Federal Republic of Brazil, when in 1988, the Brazilian legislature voted a new Constitution, which included a novel right never seen before: the Habeas Data individual complaint. The same is expressed as a full constitutional right under Article 5, LXXI, Title II of the Constitution, which stipulates that:

“Habeas Data shall be granted: a) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative”.⁶

In 1991, Colombia followed the Brazilian example by incorporating the Habeas Data right to its new constitution. Thereafter, many other countries such as Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996, followed and adopted the new legal tool in their respective constitutions.

The 1992 Paraguay Constitution has followed the example set by Brazil but enhanced the protection by providing in Article 135 thereof the following:

“Everyone may have access to information and data available on himself or assets in official or private registries of a public nature. He is also entitled to know how the information is being used and for what purpose. He may request a competent judge to order the updating, rectification, or destruction of these entries if they are wrong or if they are illegitimately affecting his rights.”⁷

The Argentinian version of Habeas Data is the most complete to date, as stated in Article 43 of their Constitution, amended on the 1994 reform:

“Any person shall file this action to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.”

In our country, on February 2, 2008, the rules on the writ of Habeas Data (A.M. No. 08-1-16-SC) became effective, with Section 1 thereof providing:

“The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a data or information regarding the person, family, home and correspondence of the aggrieved party.”

The expression of data protection in various declarations and laws varies only by degrees. All require that personal information must be:

• obtained fairly and lawfully;
• used only for the original specified purpose;
• adequate, relevant and not excessive to purpose;
• accurate and up to date; and
• destroyed after its purpose is completed.⁸

The Right to Privacy

Privacy can be defined as a fundamental (though not an absolute) human right. The law on privacy can be traced as far back as 1361, when the Justices of the Peace Act in England provided for the arrest of peeping toms and eavesdroppers. In 1765, British Lord Camden, striking down a warrant to enter a house and seize papers wrote, “We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property any man can have.” Parliamentarian William Pitt wrote, “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it; the storms may enter; the rain may enter — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”⁹

Privacy is a fundamental human right recognized in the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and regional treaties. Privacy underpins human dignity and other key values such as freedom of association and freedom of speech. It has become one of the most important human rights issues of the modern age.

The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold vs. Connecticut, the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Fourth, Fifth and Ninth Amendments xxx. In the 1968 case of Morfe vs. Mutuc, we adopted the Griswold ruling that there is a constitutional right to privacy.¹⁰

The Supreme Court held further: Indeed, if we extend our judicial gaze, we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights xxx. Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz, Sections 1, 2, 6, 8, and 17. Other zones of privacy are recognized and protected in our laws, to wit: (1) the Civil Code provides that “every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications; (2) the Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling; (3) invasion of privacy is an offense in special laws like the Anti- Wiretapping Law (R.A. 4200, the Secrecy of bank Deposits (R.A 1405), and the Intellectual Property Code (R.A. 8293); (4) the Rules of Court on privileged communication likewise recognize the privacy of certain information (Sec. 24 ,Rule 130 (c), Revised Rules on Evidence.¹¹

Threats to the Right to Privacy

Threats to privacy come from multiple sources - technological, government actions, and the private sector and commercial services. In the modern era, technology has long been viewed as the source of many privacy concerns.

a. Technology

In a paper¹² prepared by the Director of Electronic Privacy Information Center of the United States of America it was mentioned therei that amplification, routinization, and sublimation are among the key characteristics of technology in the surveillance realm.

The paper described amplification to refer to the ability of technology to extend the ability to gather information and intrude into private life. Examples of amplification are linked directly to the sensory abilities. Techniques for amplification invariably also capture information beyond what may be justified by initial inquiry.

There is considerable debate on whether it is appropriate to regulate techniques of amplification. While it is true that some of these methods intrude into private life, it is also clearly the case that such technologies have beneficial applications. Regulating the technique rather than the activity inevitably raises the danger of criminalizing behavior that might otherwise be considered permissible. Thus, one of the first lessons of legislating to protect privacy is the need to focus on the underlying activity and not the technology itself.¹³

Routinization, on the other hand, is the process of using technology in making intrusion into private life an ongoing process. Again it is possible to conceive of both appropriate and inappropriate forms of routinized surveillance. The paper cited as an example a camera at a bank cashiers desk, which is probably an appropriate use of surveillance technology as it provides protection in case of a robbery. However, a camera placed in the changing room of a department store would be more problematic. While it could be argued that the purpose of the camera is to deter shoplifting, customers are likely to find a camera in a changing room simply too intrusive.

The last, sublimation is described as the means by which a technique for privacy invasion becomes increasingly difficult to detect. Hidden cameras, listening devices and similar data gathering techniques offer little opportunity for the data subject to escape detection and frequently little opportunity in the political realm to challenge the desirability of such techniques. Illegal wire surveillance by law enforcement agencies is a long-standing privacy concern since it is so difficult to detect, to assess, and to challenge.

While technology is not required for an invasion of privacy, the ability of techniques to amplify, routinize and sublimate surveillance has traditionally raised some of the greatest privacy concerns.¹⁴

b. Government

It would not need a genius to say that many of the most serious threats to privacy come from government. In the most extreme form when a government arrests and imprisons a person, it has denied the individual the dignity of privacy almost absolutely. Government can also diminish privacy through schemes for compelled identification, drug testing, physical searches of one’s home or person, database profiling, genetic testing, and polygraph examinations to name just a few.¹⁵ Threats to privacy caused by the government are particularly problematic since once established, citizens have little choice but to comply. An individual has no choice but to comply with the requirements of national identity or drug testing as a condition for public employment or issuance of licenses.

c. Private and Commercial Transactions

In a workplace, corporations seek to exert greater control over workers through a variety of monitoring and surveillance practices such as monitoring of telephone calls and computer use, video surveillance of change rooms and bathrooms.

More generally, corporations threaten privacy in the marketplace through extraction of information of commercial value from consumers in their personally identified transactions. At present, customers are required to provide personal details that can be used by companies for subsequent purposes, while some requests are necessary and appropriate for a particular transaction, in many more, data collections are unrelated to a particular purpose.

This process of extracting commercial value in the marketplace might be called the commodification of identity. Efforts to limit this process focus on either regulatory restrictions on the collection of information or technical means to promote commercial transactions that do not require disclosure of personally identifiable information.

Supreme Court’s Response to the Threats

According to an international survey of privacy law and practice, there are three major reasons for the movement towards comprehensive privacy and data protection laws. Many countries are adopting these laws for one or more reasons, to wit:

To remedy past injustices. Many countries, especially in Central Europe, South America and South Africa, are adopting laws to remedy privacy violations that occurred under previous authoritarian regimes.
• To promote electronic commerce. Many countries, especially in Asia, but also Canada, have developed or are currently developing laws in an effort to promote electronic commerce. These countries recognize consumers are uneasy with their personal information being sent worldwide. Privacy laws are being introduced as part of a package of laws intended to facilitate electronic commerce by setting up uniform rules.
• To ensure laws are consistent with Pan-European laws. Most countries in Central and Eastern Europe are adopting new laws based on the Council of Europe Convention and the European Union Data Protection Directive. Many of these countries hope to join the European Union in the near future. Countries in other regions, such as Canada, are adopting new laws to ensure that trade will not be affected by the requirements of the EU Directive.¹⁶

It is quite unfortunate that the promulgation of the rules on the writ of habeas data for a more comprehensive privacy and data protection, was brought about to remedy the worsening privacy violations, as well as the distressing human rights condition in our country. Supreme Court Justice Puno in a speech delivered before the promulgation of the rules on the writ of habeas data declared: “I took pains to narrate the development and protection of human rights in the world to show how the Philippines is faring in that regard. Looking at our record with the most hospitable eye, the conclusion will not be kind to our authorities. The number of victims of extrajudicial killings and involuntary disappearances is already chilling as it is, and we are still counting. This bulging number of victims of human rights violations and the failure to bring the perpetrators to swift justice have brought to us what observers derisively call a culture of impunity.

Indeed, the human rights situation in the Philippines has alarmed the international community. Human rights advocates from the United Nations, the European Union, and the United States have decried that the Philippines is fast gaining the reputation as the graveyard of human rights in Asia. But the business of protecting human rights in the Philippines is the business of Filipinos, more than the business of foreigners. Let me submit, however, that as Filipinos, let us not forget that we have a glorious history of protecting human rights in our shores and of advancing their frontiers elsewhere in the world. Nobody can dispute the fact that Rizal, Mabini, Del Pilar, and our other national heroes established the first democracy in Asia.¹⁷

Aside from the foregoing human rights condition in the country, based on opinion polls, concern over privacy violations is now greater than at any time in recent history. The increasing sophistication of information technology with its capacity to collect, analyze and disseminate information on individuals has introduced a sense of urgency to the demand for legislation. Furthermore, new developments in medical research and care, telecommunications, advanced transportation systems and financial transfers have dramatically increased the level of information generated by each individual. Computers linked together by high speed networks with advanced processing systems can create comprehensive dossiers on any person without the need for a single central computer system. New technologies developed by the defense industry are spreading into law enforcement, civilian agencies, and private companies.¹⁸

Uniformly, populations throughout the world express fears about encroachment on privacy, prompting an unprecedented number of nations to pass laws which specifically protect the privacy of their citizens. Human rights groups are concerned that much of this technology is being exported to developing countries which lack adequate protections. Currently, there are few barriers to the trade in surveillance technologies.

It is now common wisdom that the power, capacity and speed of information technology is accelerating rapidly. The extent of privacy invasion — or certainly the potential to invade privacy — increases correspondingly.¹⁹

Over the past decade the Internet has become an important tool for communication and research. The technology is growing at an exponential rate, with millions of new users going on line each year. The Internet is also used increasingly as a tool for commercial transactions. The capacity, capability, speed and reliability of the Internet is constantly improving, resulting in the constant development of new uses for the medium.

Efficacy of the Writ

Chief Justice Puno, less than a month after the promulgation of the rules on the writ of habeas data stated that: “It is an excellent human rights tool used mostly in countries recovering from military dictatorships. It enforces the right to truth, which is the bedrock of the rule of law. Observers say that with the promulgation of these two writs, the number of victims of extrajudicial and enforced disappearances had declined. Perhaps it is too early to rejoice over their deterrent effect.”²⁰

It is not enough that the judiciary has taken steps to afford protection upon one’s right to privacy, as well as deter, if not totally bring to an end the worsening human rights condition in the country. Both the legislative and the executive departments have to undertake the necessary steps to complement that taken by the judiciary.

The legislative department is expected to enact laws that would comprehensively cover the right to privacy, as well as its other facets, taking into consideration the sophistication of technology. Laws regulating the collection and gathering of data for identity systems (identity cards, biometrics) should be enacted in no time. Likewise, the surveillance of communications, the installation and use of video surveillance cameras, as well as the filing or storing of the videos require regulation so as to prevent wrongful use of the same. As regards the information gathered for purposes of employment or commercial transactions, our country lacks the necessary laws drawing the parameters as to the extent of the use of the said information.

In 1998, Administrative Order no. 308 issued by then President Fidel V. Ramos, prescribed for a national ID system for all citizens to facilitate business transactions with government agencies engaged in the delivery of basic services and social security provisions was declared unconstitutional by the Supreme Court. The Court held that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes.²¹ Further, the Court held that the ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most graphic threats of computer revolution.²² The Court is not unmindful of the fact that the retrieval of stored data is simple, such that when information of privileged character finds its way into the computer, it can be extracted together with other data on the subject. Hence, once extracted, the information is putty in the hands of any person; it is at that point the end of privacy begins.

In other countries like Singapore, the single ID system for government and social services transactions work due to the fact that the government has provided utmost, not to mention maximum protection over the information pertaining to its citizens. As for our country, while the end sought to be achieved by the said administrative order is one laudable, the same does not justify the gravity of violation of one’s privacy rights. It is about time that our government make use of the available technology to the fullest without sacrificing the privacy of its people.

Affording protection to the rights of the people, privacy or otherwise, is not just an obligation reposed upon one of the three branches of our government- the judiciary, that is. The desire and enthusiasm on the part of the judiciary to protect the right to privacy would prove futile if the other two allow statistics on violations count from day to day.

As of this writing, the Supreme Court has issued two writs of habeas data, marking the first time that the high tribunal did so since its promulgation. The high court issued the habeas data together with the writ of amparo for two cases filed separately by Guillermo M. Luz, executive vice president of Ayala Foundation, Inc., and Anakpawis partylist member Francis Saez last March 3 and March 5 respectively.

It also ordered the Court of Appeals to hear each petition separately on March 18.

In his petition for the issuance of a writ of amparo and writ of habeas data, Luz said that the military should appear before the court to confirm or deny whether the military has been conducting surveillance operations on him over his alleged involvement in a plot to oust President Gloria Macapagal-Arroyo, particularly in the “Pen coup.”

This refers to the siege by rebel soldiers and civilians at the Manila Peninsula Hotel in Makati City last Nov. 29, 2007 to demand the resignation of Arroyo.

Luz said the respondents should submit to the court and disclose to him any photographs, reports, data, or information gathered in the course of their “case buildup” against him.

Meanwhile, in his petition for the writ of amparo and for the writ of habeas data, with prayers for temporary protection order, inspection of place, and production of documents, Saez prayed that respondents Arroyo, Esperon, and other involved persons produce before the court the “Order of Battle” containing his name.²³

The sufficiency of the writ to afford protection to one’s right to privacy is one thing, the intentional violation thereof by those in power and in control is another.

1. Guerra, Gleo Sp., Writ of Habeas Data in the Offing as Protection In Information Age, http://www.supremecourt .gov.ph/publications/benchmark/2007/11/110703.php [↩]
2. http://en.wikipedia.org/wiki/Habeas_Data. [↩]
3. Banisar, David, et al., PRIVACY AND HUMAN RIGHTS, An International Survey of Privacy Laws and Practice, http://www.gilc.org/privacy/survey/intro.html. [↩]
4. Op cit. [↩]
5. Ibid. [↩]
6. http://en.wikipedia.org/wiki/Habeas_Data [↩]
7. Ibid. [↩]
8. Banisar, David, et al., PRIVACY AND HUMAN RIGHTS, An International Survey of Privacy Laws and Practice, http://www.gilc.org/privacy/survey/intro.html. [↩]
9. Ibid. [↩]
10. Ople vs. Torres, G.R. No. 127685, July 23, 1998) [↩]
11. Ibid. [↩]
12. Rotenberg, Marc, Preserving Privacy in Information Society, http://www.stii.dost.gov.ph/astinfo/aprtojun2k/pg10.htm [↩]
13. Ibid. [↩]
14. Ibid. [↩]
15. Ibid. [↩]
16. Banisar, David, et al., PRIVACY AND HUMAN RIGHTS, An International Survey of Privacy Laws and Practice, http://www.gilc.org/privacy/survey/intro.html. [↩]
17. No Turning Back On Human Rights, delivered by Supreme Court Chief Justice Reynato Puno on 25 August 2007 at the Luce Auditorium, Silliman University, Dumaguete City, http://www.salongacenter.org/human_rights.php. [↩]
18. Ibid. [↩]
19. Ibid. [↩]
20. Chief Justice Reynato S. Puno, Freedom of Press: a Touchstone of Democracy, February 27, 2008, http://www.nujp.org/pr/pr08/prfeb27-puno.html. [↩]
21. Ople vs. Torres, G.R. No. 127685, July 23, 1998. [↩]
22. Ibid. [↩]
23. Torres, Tetch SC grants ‘habeas data, amparo’ for businessman, activist, March 12, 2008, INQUIRER.NET http://services.inquirer.net/express/08/03/13/html_output/xmlhtml/20080312-124306-xml.html. [↩]

• ITLJ 4-2
• Comments(1)

administrator April 28th, 2008

Electronic Contracts and the Underlying Signature: The Basics
by Earl Alfred Reyes

Contracts are vital for commerce, as David Molnar said in his article entitled “Signing Electronic Contracts”.¹ Every agreement between two or more people involves a contract. Simple things, such as expecting a friend to show up to class, are examples of implied contracts. Other contracts are more formally laid out and signed by all parties involved. After formal contracts, every party receives a copy of the contract. Following the contractual agreement, each party can act with the assurance that other parties will do their share.

Written contracts create mechanisms which allow parties to overcome distrust of each other, because they know misbehavior will be found out. Once written down, the terms of the agreement cannot be forgotten. In cases of cheating or dispute, the “contract” actually refers to that piece of paper which everyone signed. The paper is a convincing certificate to an impartial observer, such as a judge, that an agreement actually occurred.

As more commerce moves online, contracts are moving online as well. Everytime anyone orders something from a merchant online, a contract is created promising to exchange money for some good or service. These electronic contracts make electronic commerce possible.²

Larry Zanger, in his article,³ points out, and accordingly so, that contracts can be formed by oral or written agreement. They can be implied by conduct of the parties. And, with the advent of online communications, they can be formed electronically. A variety of procedures are available for forming electronic contracts:

• E-mail: By exchanging e-mail communications, the parties can create a valid contract. Offers and acceptances may be exchanged entirely by e-mail, or can be combined with paper documents, faxes, and oral discussions.
• Web Site Forms: In many cases a Web site operator will offer goods or services for sale, which the customer orders by completing and transmitting an order form displayed on screen. Once the vendor accepts the order, a contract is formed. The goods and services may then be physically delivered off-line.
• Online Mass Market Agreements: Electronic contracts can also be formed by online conduct.
  For example, a publisher may offer software or other digital content online, subject to a form agreement. The user’s conduct of downloading the content may constitute acceptance of the form agreement.
• Electronic Data Interchange (”EDI”): EDI involves the direct electronic exchange of information between computers; the data is formatted using standard protocols so that it can be implemented directly by the receiving computer. EDI is often used to transmit standard purchase orders, acceptances, invoices, and other records, thus reducing paperwork and the potential for human error. These exchanges (which are sometimes made pursuant to separate EDI trading partner agreements) can create enforceable contracts.
• Electronic Agents: Contracts may also be created through the use of an electronic agent by either or both of the parties. An electronic agent is software that is used independently to initiate an action or respond to electronic messages or performances without intervention by an individual at the time of the action, response or performance. The Uniform Computer Information Transactions Act (UCITA), recognizes that a contract may be formed between an individual and an electronic agent, or between two electronic agents, even if no individual representing either party was aware of the action of the agent or reviewed its results. So long as two agents engage in operations that signify agreement, or an individual knowingly interacts with an electronic agent and performs actions a person should know clearly constitutes acceptance, and agreement is formed.

These new concepts create vast business improvements. As new markets are more easily opened to a wider variety of players, ( See generally Gralla, supra note 6, at 2. “In electronic communications there is this gap in time and space, but the gap in time is much smaller than is the case with traditional post. . . .” Eiselen, supra note 36, at 22. )) transactions become cheaper, and communication costs are reduced.⁴ Simultaneously, businesses find complex contracting challenges by entering jurisdictions in which they had no intention of conducting business.⁵ Parties have greater concerns with Internet contracting as opposed to traditional paper contracting because the law stops at country borders, while the Internet allows business to freely cross them.⁶ However, computer-based contracts, particularly those created via the Internet, do not exist in a lawless cyberspace.⁷ Governments are challenging fundamental legal concepts, such as contracts, to develop flexible frameworks to protect traditional contract law while recognizing and expanding it to include technology’s borderless capabilities and maintain integrity for all legal players (judges, lawyers, legislators, and business people).⁸ “The first step toward laying a legal foundation for electronic commerce is to clear away the barriers to electronic commerce, and the first and most obvious barrier is found in laws that require paper.”⁹

Validity and Legal Recognition of Electronic Contracts in the Philippines

Prior to year 2000, numerous commentators on the subject matter expressed their opinion with regard to the need for changes in the legal field in order to better embrace the growth of information technology. In a commentary,¹⁰ it says that “while the growth of information technology is viewed as a path towards paperless transactions, Philippine laws on contracts and other legal instruments are still designed for a paper-based world. This is because these laws still require written, signed or original documents.”

“Electronic documents pose a particular challenge to the laws on contracts,” the study pointed out, “as it can be difficult to prove who wrote the document and the exact contents of the agreement.”¹¹

Fortunately, with the advent of Republic Act No. 8792, also known as the Electronic Commerce Act of 2000) on June 14, 2000, also of A. M. No. 02-7-02-SC or the Rules on Electronic Evidence that took effect on 1 August 2001 and other similar laws and regulations, a workable solution was provided.

Of essence as well was the article¹² “A Synopsis of the e-Commerce Law,” wherein the salient features of the E-Commerce law were enumerated, some of which are reproduced, thus:

It shall have application to any kind of data message or document generated, sent, received or stored by electronic, optical or similar means, regardless of whether the activity or transaction is commercial or non-commercial, private or public, or domestic or international.

1. Electronically generated documents have the legal effect, validity and enforceability as any other legal document. Electronic documents are recognized as the functional equivalent of a written document for evidentiary purposes.
2. It gives legal recognition to contracts and transactions in the form of electronic data message or electronic documents carrying electronic or digital signatures. Electronic signature can be any distinctive mark, characteristic, and/or sound in electronic form that represents the identity of a person and logically associated with the electronic document.¹³ Digital signatures, on the other hand, are provided through a secret code, known as “electronic key,” which secures and defends sensitive information that crosses over public channel into a form decipherable only with a matching electronic key¹⁴ normally obtained from an Internet security company. Both electronic and digital signatures are necessary to ensure the integrity, reliability and authenticity of electronic documents, particularly those that qualify as an electronic contract.
3. Electronic documents, signatures and data messages are admissible in evidence in a legal proceeding depending upon their reliability, integrity, nature and quality. For this purpose, the Supreme Court promulgated A. M. No. 02-7-02-SC or the Rules on Electronic Evidence that took effect on August 1 2001.
4. Offer, acceptance, and other legal requisites for the formation and consummation of contracts may be expressed or executed by means of electronic data message or electronic documents. These contracts shall not be denied validity or enforceability simply because they are in electronic form.

Electronic signatures

Electronic contracts pose special difficulties. Offline, many contracts are signed face-to-face. All parties signing the contract can be reasonably sure that the other parties are who they claim to be, that the wording of the contract has indeed been agreed upon by all parties, and, eventually, that everyone has signed the contract. None of these are true by default online.

This is perhaps the most serious problem: how do the contracting parties figure out that everyone has signed the same contract?¹⁵

Often, businesses rely on other means to attempt to ensure an electronic signature is correct, including talking with the signing person directly or over the phone before an electronic signing, having an ongoing business relationship, and receiving payment or other indications of intent to do business that do not rely solely on a signed document. This is good business practice even in the paper world, as forgeries have been common there since time immemorial. Fraud is a common issue in all signature situations, and neither type of signature (paper or electronic) provides fully effective anti-fraud protections.¹⁶ Nevertheless, attempts are exerted, as in the case of developing appropriate electronic signatures, in order to at least minimize the occurrences of such fraudulent actuations.

As stated in the article entitled Electronic Signature Legislation,¹⁷ trust plays a role in virtually all commercial transactions. Regardless of whether the deal is struck in cyberspace or in the more traditional paper-based world, transacting parties must trust the messages that form the basis for the bargain. Trusting a message, from a legal perspective, requires consideration of the authenticity and integrity of the message, as well as an assessment of whether the message is nonrepudiable by the sender in the event of a dispute.

a. Authenticity

Authenticity is concerned with the source or origin of a communication. ¹⁸ Who sent the message? Is it genuine or a forgery?

A party entering into an online transaction in reliance on an electronic message must be confident of that message. For example, when a bank receives an electronic payment order from a customer directing that money be paid to a third party, the bank must be able to verify the source of the request and ensure that it is not dealing with an impostor. ¹⁹

Likewise, a party must also be able to establish the authenticity of its electronic transactions should a dispute arise. That party must retain records of all relevant communications pertaining to the transaction and keep those records in such a way that the party can show that the records are authentic. For example, if one party to a contract later disputes the nature of its obligations, the other party may need to prove the terms of the contract to a court. A court, however, will first require that the party establish the authenticity of the record that the party retained of that communication before the court will consider it as evidence.