The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

THE PHILIPPINE QUARTERLY

IT Law Journal
what’s Inside

THE OFFICIAL PUBLICATION OF THE ARELLANO UNIVERSITY SCHOOL OF LAW E-LAW CENTER AND IT LAW SOCIETY VOLUME 1, N UMBER 1

“HACKING” THE MERCANTILE LAW BAR EXAM QUESTIONS
THE

1 “H M Q 2E P

ACKING ” ERCANTILE UESTION

by Michael Vernon M. Guerrero

B AR E XAM

DITORIAL HILIPPINE

F ACTS

FIGURES A 4E A

L E C T R O N I C UTHENTICATION SYSTEM: B REAKTHROUGH IN NOTARIZATION HE PHILIPPINE RULES ON LECTRONIC EVIDENCE: AN UTLINE

7T E O 8 JC P 9O T 10 S A

H
&

Hacking?

acking what? Technical people would argue that there is no such a thing as “Hacking the Mercantile Law Bar Exam Questions.” Cracking maybe, but not hacking. Obviously, confusion will arise on the usage of the word “hacking” if one is not particular to one’s audience. For the technically inclined, to hack means to write a program code; or to modify a program, often in an unauthorized manner, by changing the code itself. A hacker, thus, is a computer enthusiast, or a person who enjoys learning programming languages and computer systems and can often be considered an expert on the subject(s). To crack, on the other hand, is to break into a computer system or to copy commercial software illegally by breaking (cracking) the various copyprotection and registration techniques being used. A cracker, therefore, is distinct from a hacker. The sole aim of crackers is to break into secure systems, while hackers are more interested in gaining knowledge about computer systems and possibly using this knowledge for playful pranks. [ 1 ]

URISPRUDENCE YBERLAW PTICAL MEDIA A CT : ANACEA TO PIRACY?

IN

A

HE D OMAIN N AME YSTEM (DNS) AND DMINISTERING THE ROOT CCTLD .PH PAMMING THE WORLD

12 S 14 A S C L 16 O I

YNOPSIS OF THE E OMMERCE LAW

Nevertheless, similar to the failure of mass media to distinguish between cracking and hacking, the terms cracking and hacking under the Philippine Electronic Commerce Act (Republic Act No. 8792) are used interchangeably. The Act provides specifically that “hacking or cracking ... refers to unauthorized access into or interference in a computer system / server or information and communication 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, alteration, theft or loss of electronic data messages or electronic document.” [ 3 ] The simplification of the definition of hacking, made synonymous to cracking, in the Electronic Commerce Act, allows the prosecution of a person, not necessarily a computer expert, who simply accessed another person‘s computer or electronic documents without the latter’s permission. “Hacking the Mercantile Law Bar Exam Questions,” therefore, may be technically an incorrect title, but may be legally correct within Philippine jurisdiction. Leakage of the 2003 Mercantile Law Bar Exams The 21 September 2003 Mercantile Law Bar Examinations, one of the eight bar subjects and one given 15% weight, was annulled after
>> [ 3 ] Mercantile Law Bar Exam

VERVIEW OF S ELECTED EGAL AND REGULATORY SSUES IN E LECTRONIC COMMERCE (UNCTAD) EXICON OF C YBERLAW ERMINOLOGIES

18 L T 19 91 N A 22 [L L 24 D I C

EW LAWYERS FROM THE RELLANO U NIVERSITY SCHOOL OF LAW

EGAL WEB] AWPHIL . NET : A STEP IN THE RIGHT DIRECTION IGITAL LAW & THE MPERATIVES OF THE E-LAW ENTER

THE BIRTH OF THE IT LAW SOCIETY

To illustrate the technical distinction to the legal mind, decompilation allowed in Section 185 of the Philippine Intellectual Property Code (Republic Act No. 8293) [ 2 ] is part and parcel of the technical concept of hacking. On the other hand, effecting transactions with one or more access devices issued to another person or persons to receive payment or any other thing of value (Section 9 [n] of the Access Devices Regulation Act, Republic Act No. 8484) – especially if construed in a virtual or Internet transaction – constitutes cracking.

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Message from the Dean

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hree years ago, on the occasion of the centenary celebration of the Philippine Supreme Court, Arellano University School of Law was invited to co-sponsor the law and technology lecture. In the response I delivered for the school, I announced to the distinguished members of the Highest Court and their guests that as far back as 1997, the school had already anticipated the need to develop globally-oriented lawyers and professors. This can be gleaned from the school’s vision statement drafted on th same year where we saw ourselves as a globally competitive institution that harnesses world-class, state-of-the-art technologies and methodologies, responsive and attuned to the demands of the times. In 1999, true to our vision, we opened an Information Technology Center (ITC) to handle all of the school’s computer requirements. On the same year, we set up at least 30 computer stations with Internet access for the exclusive use of law students. Lawphil was developed and introduced on the web in the year 2000 and has become the country ’s most visited legal research website. The Arellano Law

and Policy Review (ALPR), a journal featuring mainly articles on international law and policy developments, was published starting 2001 to which the law libraries of Yale and Harvard are now subscribers. An Institute of Special Studies (ISS) was opened to engage in research and encourage discussion in the field of international law, particularly international trade law. It holds monthly brown bag lectures mostly on the burning local and international legal issues of the day. In 2001, the ISS worked with the International Trade Centre, a technical cooperation agency of the UNCTAD and the World Trade Organization (WTO) in authoring a handbook entitled “Arbitration and Alternative Dispute Resolution,” now considered by many Philippine law schools as the most authoritative on the subject. Changes in the curriculum were made in the year 2000. Among them were the introduction of courses like Alternative Dispute Resolution, Environmental Law, International Trade Law, Project Finance, CorporateFinance, Telecommunications Law, Technology and the Law, and Human Rights to address the globalization of both Commercial Law and Public Interest Law.

With the establishment in 2003 of AUSL’s Center for e-Law, it is clear that the school is ready to meet the challenges posed by the advent of the digital age. The formation of an IT Law Society with members composed of technologically proficient law students is a most welcome development that will set the school apart from even the so-called elite law institutions. I congratulate the movers behind the Center for E-Law and the IT Law Society for the work they have been doing, and in particular for coming out with an ambitious project like the IT Law Journal. May your tribe increase and may you indeed be at the forefront of law and technology concerns in the country and beyond.

Editorial Board
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

C HAIRMAN Atty. Jaime N. Soriano, CPA, MNSA M EMBERS Ailyn L. Cortez Charilyn A. Dee Jhonelle S. Estrada Peter Joseph L. Fauni Carlyn Marie Bernadette C. OcampoGuerrero Michael Vernon M. Guerrero Ma. Cristina A. Ramos

The Philippine Quarterly IT Law Journal is the official publication of the eLaw Center and the IT Law Society of the Arellano University School of Law. It is published quarterly. Contributions to the Philippine Quarterly IT Law Journal express the views of their authors and not necessarily the views of the Arellano University School of Law. For subscriptions, contact: THE PHILIPPINE QUARTERLY It Law Journal e-Law Center 2/F Heilbronn Hall Arellano University School of Law Taft Avenue corner Menlo Street Pasay City 1300 Philippines Tels. +63 2 404-3089, 404-3090, 404-3091 http://www.arellanolaw.net itlawjournal@arellanolaw.net

Philippine IT Facts and Figures
Internet users (thousands), 2000-2002 1 2000 1 540 2001 and 2002 2 000 % change 2000-2001 29.87 Internet users per 1000 person, 2000-2002 2 2000 201 2001 and 2002 256 Network Readiness Index (NRI) & Ranking by the Economist Intellegence Unit (EIU) 3 NRI Score 3.25 NRI Rank 62 ERI Score 3.93 ERI Rank 47 Sources: 1 ITU (2003a) and UNCTAD calculations 2 ITU (2003a) and UNCTAD calculations 3 Dutta, Lanvin and Paua (2003) and Economist Intelligence Unit (2003).

Volume 1, Issue 1

©

2004. All Rights Reserved. Reconstituted November 2006. Proportions may differ slightly from original printed copy.

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

<<

[ 1 ] Mercantile Law Bar Exam

a massive leakage – comprising 82 percent of the questions asked in the bar subject – occurred. The nullification of the examination on the subject was made in order to preserve the integrity and protect the sanctity of the examination and avoid any doubt or suspicion on the outcome of said examination. The Supreme Court, instead of having the examinees retake the Mercantile Law examination, distributed the weight assigned to Mercantile Law to other Bar subjects. Examinees in 2003 numbered to 5,349 law graduates. The Supreme Court, on 4 February 2004, disbarred Danilo de Guzman, a lawyer from the Balgos and Perez law firm and the one responsible for the Mercantile Law Bar Examination leakage, and reprimanded Marcial OT Balgos, examiner in the 2003 Mercantile Law Exam, whose negligence was the root cause of the said bar leakage. It appeared, on investigation, that Balgos prepared three sets of test questions on Mercantile Law on his personal computer in his law office. His computer, running on Microsoft Windows 98 operating system, is interconnected with other computers in the law office through a local area network (LAN). De Guzman activitated file-sharing of pertinent file folder(s) in Balgos’ computer without the latter’s knowledge, and was able to access Balgos’ files using his own computer in the network. De Guzman faxed the questions to Ronan Garvina, a fraternity brother. Garvina, in turn faxed the questions to Randy Iñigo and James Bugain. Iñigo passed a copy of the questions to Allan Guiapal, who gave a copy to Ronald Collado. Collado ordered the printing of the questions, with the logo and initials of the fraternity and distributed copies to 30 Bar candidates of the Manuel L. Quezon University (MLQU).

Atty. Ivan Uy, chief information officer of the Supreme Court, and his computer forensic experts were able to uncover De Guzman’s activities through his computer’s and the network’s logs. Inasmuch as access to Balgos’ computer was unauthorized, De Guzman is deemed to have committed “hacking” pursuant to the definition given by Section 33(a) of the Electronic Commerce Act. Protecting files Interconnectivity and security are two opposing, but not necessarily incompatible, concepts. Getting one step ahead of potential security threats would be a costly endeavor. But one must at least find ways to secure one’s files from an unauthorized user, who has basic knowledge of computers and their systems. LAN may be practical in connecting a number of computers so as to share peripherals and resources, such as printers, hard disk storage, and even Internet connection when applicable. File transfer between computers within the network is made easier, especially if the file is above the 1.44MB diskette limit, or if the other computer does not have or support a large removable media drive. Unauthorized file access through shared folders, however, may occur if the user is unaware of means to control access. Therefore, what should be done to control access? First. Choose the proper operating system. A lot of organizations purchase “home-based” operating systems such as Windows 95, 98, ME and XP Home for their personal computers as they are relatively cheaper than the more secure operating systems Windows NT, 2000, and XP Pro; or more popular than the various flavors of Linux or similar operating systems. The drawback in the use of Windows 98, for example, is that one can access the computer by merely cancelling the login box and thus create an account for oneself in the computer where one

is not authorized to access. So if a file folder in Windows 98-based machine has been shared, one can access said folder in another computer in the network. Unlike in Windows 2000, for example, only one having administrator capabilities can add a new user to the computer. Furthermore, when a computer in a network does not contain a similar user profile as in the one accessed, a login and password dialogue box appears before one can access the other computer. [ 4 ] Second. Find out if you’re sharing more than you are willing to share. Clicking on your computer’s name on Network Neighborhood would show the folder(s) or drive(s) your computer is sharing over the network. Better unshare the folder(s) or drive(s) which you are not really willing to share, or otherwise create a specific folder containing only the files that you would want to share. Furtther, you may want to limit the number of people that can access the shared folders at one time.
[5]

Third. Password-protect your documents. If you are using Microsoft Word and Excel, these documents and spreadsheets may be protected from being opened by unauthorized personnel. [ 6 ] Fourth. Don’t let your ultra-sensitive files stay in your computer. Better store them in reliable removable storage devices, such as those heavy-duty portable ones that can be plugged in your USB port. Fifth. If you have money to spare, buy reliable software which would provide your computer personal firewall. It is additional protection to safeguard your sensitive files. These are some of the precautions one can do to safeguard one’s files from the prying eyes of other people, especially if the security of documents affect the lives of a lot of people.
>> [ 21 ] Mercantile Law Bar Exam

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Features

ELECTRONIC AUTHENTICATION SYSTEM: A BREAKTHROUGH IN NOTARIZATION
By Ma. Cristina A. Ramos

N
Introduction
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Revised Administrative Code of the Philippines. · Section 11, Rule 141 of the Rules of Court.

otaries public, as we know them today, originated as scribes. Scribes, Latin scribae, are literate clerks who took notes of important events and discussions and made copies both of public and private documents. The role of these scribes can be traced back to pre-Biblical times in Ancient Egypt and Greece. The importance of these scribes became more and more important when the value of official record-keeping was recognized and when societies began to formalize their rules and decisions. [ 1 ] In Ancient Rome, scribes who performed the function of the notary were known as tabellions. Instead of paper, these tabellions used tabulae or tables or plates covered with wax. Later on, a new system of shorthand writing called notae tironinae was developed. It was a system of arbitrary marks or signs called notae. The person who adopted this method was called a notarius. Although originally applied to a shorthand writer, the term notarius became used exclusively to a publicly appointed official who performed the functions similar to that of a presentday notary. [ 2 ] The Philippine Notarial Law In the Philippines, notaries public are members of the Bar commissioned by, and are under The supervision of, Executive Judges of the territory where they perform their notarial functions. The laws and regulation governing notaries public include the following: · Sections 231 to 252 and Sections 2632 to 2633 of the 1917

of the affiants or the parties before a notary public to satisfy the foregoing warranties. e-Notarization under the eCommerce Act To keep pace with the global developments in information technology, Congress enacted into law Republic Act No. 8792, also known as the Electronic Commerce Act of 2000) on June 14, 2000. The law gave validity and legal recognition to electronic documents and electronic contracts as the functional equivalent of paper-based documents. [ 5 ] Corollary to this is the legal recognition of electronic and digital signatures affixed on electronic documents and electronic contracts. These signatures are now legally recognized as equivalent to the signature of a person on a written document. [ 6 ] Electronic contracts and documents would not be denied validity, enforceability and admissibility as evidence for as long they preserved their integrity and reliability and can be authenticated in accordance with the law and established rules of procedure. Section 11 of the Electronic Commerce Act of 2000 authorized the Supreme Court to determine the appropriate rules governing the authentication of electronic documents and electronic contracts "including the use of electronic notarization systems as necessary and advisable, as well as the certificate of authentication on printed or hard copies of the electronic document or electronic data messages by electronic notaries, service providers and other duly appointed certification authorities."

A.M. No 02-8-02-SC, promulgated by the Supreme Court (En Banc) on August 13, 2002 effective September 2, 2002. Notarization converts a private document into a public document and renders the document admissible in court as evidence without need for further proof of its authenticity. A notarized document is entitled, by law, to full faith and credit upon its face. [ 3 ] Notarization also vests upon the document the presumption of regularity unless it is impugned by strong, complete and conclusive proof.[4 ] When a notary public affixes his signature and notarial seal to an instrument, after putting the affiants under oath, he makes the following warranties: · The party or parties personally appeared before him and signed the instrument in his presence The party or parties made themselves known to him to be the same person or persons who executed, and whose names appeared in the instrument. In cases of acknowledgements, the parties made known to him the voluntary execution of the instrument.

·

·

·

In short, notarization under existing laws necessitates personal appearance

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Electronic notarization is the performance of a legal act that will facilitate the conversion of private documents in electronic form into "public documents" and provide them with the legal attributes and character as such. It is the digitalization" of the performance of the function of a notary public. Current efforts of the Supreme Court [ 7 ] At present, the Management Information System Office (MISO) of the Supreme Court, headed by Atty. Ivan John Uy, has completed ninety percent (90%) of the Rules on Electronic Notarization. According to Atty. Uy, the Rules will be presented to the Supreme Court for consideration in July this year. The rules on electronic notarization is expected to be approved, released and implemented before the end of 2004. Critics of the implementation of the electronic notarization system argue the possible conflict of this set up with the legal requirements of the existing notarial law. Atty. Uy, however, said that this issue has already been addressed. He explained that the electronic notarization system is a sui generis. It is a concept of its own, a unique one. Nevertheless, it will have the same effect as the notarization of paper-based documents. Simply put, it will also have the "functional equivalent" of the notarization of paper-based documents. Atty. Uy recognized that "electronic notarization is like putting a square peg in a round hole." For this reason, the proposal is to denominate the system as "Electronic Authentication System for Electronic Documents". The MISO has conceptualized two (2) types of Electronic Authentication System. The first type is an "on-line authentication system" while the second system would require the personal appearance of the parties. The Rules

that MISO is preparing are intended for these two types of election authentication system. On-line authentication system The first type or the on-line authentication system is intended to cater to parties who are physically remote from each other but wish to have their document authenticated to convert the same as a public document. In this system, there would be a virtual room where the parties will meet on-line via NetMeeting or net conference. An officer duly authorized by the court to conduct electronic authentication should also be present in the virtual room and after taking proper procedural safeguards, the parties and the authenticating officer similar to a notary public, shall affix their electronic signatures in the electronic document. Prior to the drafting of the rules, some legal practitioners have commented on the potential dangers of this type of authentication system particularly on the authenticity of the document. The primary concern is how can the other parties and the authenticating officer be assured that the person attaching the digital signature is indeed the person he or she should be. According to Atty. Uy, they are going to require in the rules the use of mechanisms that will verify or ascertain the identity of the parties including probably the use of a video camera to see the person at the other end of the screen. Utilization of biometrics technology is also being considered. "Biometrics refers to the authentication techniques that rely on measurable physical characteristics that can be automatically checked." [ 8 ] A commonly used biometrics is the computer analysis of fingerprints. In order to avail of this type of authentication system, the personal computers of the parties should have, for example, a fingerprint scanner, where each of them could place his or her index

finger. The computer would analyze the fingerprint to determine the identity of the person at the other end of the screen. With this mechanism, the risk of the digital signature being accessed or used without authority will be avoided. Another potential danger of this type of electronic authentication system is the risk that the owner of the digital signature be coerced to put his digital signature on the electronic document without the notary public knowing of such fact. This danger is something that the Electronic Authentication System may not resolve. However, It is worthy to note that even in the notarization of paper-based documents, such vitiation of consent cannot be avoided. "When you introduce something new, you should not expect that it is a 'cure-all' thing. It will definitely improve the system but it will not cure all the defects," said Atty. Uy. Personal appearance before an authentication officer The second type of Electronic Authentication System being proposed requires the personal appearance of the parties before an authenticating officer. This type of authentication system aims to do away with bulky paper documents. With this system, the parties who wish to have their electronic document authenticated are required to appear before an authenticating officer duly commissioned by the Court. The parties, after reading the electronic document, shall affix their electronic signatures thereon, while the authenticating officer acts as witness. The authenticating officer shall then affix his digital signature in the document, store the said document in a compact disc, reproduce a number of copies thereof as may be required by the rules and give each party his copy of the electronic document. The authenticating officer shall also keep his copy of the document.

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The original of an electronic document Section 3, Rule 130 of the Rules of Court provides that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, also known in legal parlance as the best evidence rule. The E-Commerce Act of 2000 and the Rules on Electronic Evidence [ 9 ] promulgated by the Supreme Court modified the concept of the best evidence rule to capture legal recognition and admissibility of evidence of electronic documents and electronic contracts. In electronic documents, the ECommerce Act provides that where the law requires information to be presented or retained in its original form, that requirement is met by an electronic document if the integrity of the information from the time when it was first generated in its final form as an electronic document, is shown by evidence allunde or otherwise. [ 10 ] Rule 4 of the Rules on Electronic Evidence provides that "an electronic document shall be regarded as the equivalent of an original under the Best Evidence Rule if it is a print out or output readable by sight or other means, shown to reflect the data accurately." [11 ] Thus, every copy of the electronic document, whether a print out, an email message, or a copy in a hard disk, compact disc or diskette may be regarded as the original. The greatest apprehension with the said provisions is the possibility that "all manner of alterations can be perpetrated in the cyberspace before the document is even printed. [ 12 ] The Rules on Electronic Evidence further provides that "[w]hen a document is in two or more copies

executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original." [ 13 ] Thus, for a document to be considered as equivalent of the original, it must be executed at or about the same time as the original. In the soon-to-be implemented Rules on Electronic Authentication System of Electronic Documents, Atty. Uy declared that a mechanism to ensure that only copies intended to be the equivalent of the original will be presented. He further explained that with the 'time and date stamp' or digital stamping, the integrity of an electronic document would be proved. Upon signing an electronic document, the parties will secure a time and date stamp. Such stamp assures the existence of an electronic document at one certain moment. Hence, the original of the electronic document and the equivalent copies of the original bear the same digital stamp. Subsequent copies of the electronic document will certainly bear a different time and date. Therefore, there would be no problem in ascertaining whether a particular electronic document is the original, an equivalent of the original, or a subsequent reproduction thereof. Conclusion Electronic notarization is certainly a new and novel concept in legal and judicial systems not only in the Philippines but worldwide. Like any process of change, it is susceptible to resistance particularly from the legal community.

The flexibility of the legal mandate accorded to the Supreme Court by the E-Commerce Act of 2000 to adopt a system of e-notarization and authentication of electronic documents as maybe "necessary and advisable" [ 14 ] is consistent with the internationallyaccepted principle that 'law should be technology neutral' and effectively arrests any legal inconvenience posed by existing notarial laws. Unfortunately, global trends in legal practice leave our judicial authorities no choice but to start the process of change in our legal system in response to the information technology revolution. The enactment of the ECommerce Law, the Rules on Electronic Evidence and the prospective Rules on Electronic Authentication System of Electronic Documents is certainly a step in the right direction.
Endnotes 1. Tom Halliwell, "The Notary: A Short History" (2000, May). Retrieved on 2 April 2004. http:// w w w. l e a r n e d c o u n s e l . c o m / notaryhistory.html Ibid. Nunga vs. Viray, A. M. 4758, 30 April 1999 Sales vs. Court of Appeals, G. R. No. L40145, 29 July 1992 Sec. 7, R. A. No. 8792 Sec. 8, ibid. Based on the author's interview of Atty. Ivan John Uy on 1 April 2004 Definition from www.webopedia.com. Copyright, 2004 Jupitermedia . All rights reserved. Reprinted with permission from http://www.internet.com. A.M. No. O 1-7-01-SC Sec. 10, R.A. No. 8792. Sec. 1, ibid. Jaime C. N. Arroyo, "The law and the Internet Legal Community slams rules on electronic evidence," Cyberdyaryo, 22 August 2001, Retrieved on 2 April 2004. http://www,cyberdyaryo.com/ features/2001_0822_02.htm Sec. 2, Rule 4 of the Rules on Electronic Evidence Sec. 11, R. A. No. 8792

2. 3. 4. 5. 6. 7. 8.

The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

9. 10. 11. 12.

13. 14.

“THE PRESENT DAY GLOBAL ECONOMIC LANDSCAPE IS DEFINED BY TWO MAIN FEATURES -- THE VAST IMPACT OF THE INFORMATION TECHNOLOGY REVILUTION AND THE DRAMATIC EXPANSION OF INTERNATIONAL TRADE. THE INTERNET IS REDEFINING BUSINESS MODELS WORLDWIDE AND CREATING NEW PARADIGMS AND ECONOMIC TRANSACTIONS.” - GOV. JAMES S. GILMORE III, GOVERNOR OF VIRGINIA AND
CHAIRMAN, FEDERAL COMMISSION ON INTERNET TAXATION (1999)

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Features
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

THE PHILIPPINE RULES

ON

ELECTRONIC EVIDENCE: AN OUTLINE

By Jaime N. Soriano

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he Philippine Supreme Court, through A. M. No. 01-7-01-SC, approved en banc the Rules of Electronic Evidence on July 20, 2001 in accordance with Republic Act No. 8792, otherwise known as the "e-Commerce Act of 2000". Scope and effectivity The Rules became effective on 1 August 2001 and initially applied to civil, quasi-judicial and administrative proceedings pending after that date. On 24 September 2002, it was amended to include from its coverage criminal cases effective 24 October 2002. Electronic signature vs. digital signature Electronic signature refers to any distinctive mark or characteristic in electronic form representing the identity of a person and associated with an electronic data message or electronic document and therefore includes digital signature. Electronic signatures have the "functional equivalent" of the signature of a person on a written document. Digital signature refers to an electronic signature consisting of a transformation of an electronic data message or electronic document using a cryptographic system: asymmetric or symmetric through a certification authority. Recognition evidence of electronic

electronic documents (or any information sent, received, or stored by electronic, optical or similar means as electronic data). Thus: 1. An electronic evidence is admissible in evidence provided it is competent, relevant and can be authenticated in the manner provided for by the rules. 2. The fact that it is in electronic form will not diminish the confidential nature of a privileged communication. Best evidence rule in electronic documents Electronic documents refer to information or representation of information that establishes a right or extinguishes an obligation and is received, recorded, transmitted, stored, processed, or retrieved in electronic form. All copies of an electronic document executed at or about the same time with the same impression and identical in contents are regarded as equivalent of the original, unless there is a question on the authenticity of the original or it would be unjust to admit the copy in lieu of the original. Exception to the Hearsay Rule Records, data or information kept in electronic form in the regular course of business are excepted from the hearsay rule, provided (i) they are proven or shown by the testimony of the custodian or other qualified witness and (ii) it is proven that compilation of such data, records or information is a

regular practice. To overcome this, the adverse parry must present proof of the untrustworthiness of the source of information, or the method or circumstance of the preparation, transmission or storage. Authentication documents of electronic

Burden of proving authenticity: The party introducing the electronic evidence. Manner of proving authenticity of private documents: The electronic evidence must be proved before it is offered as authentic in any of the following manner: (i) evidence that it has been signed digitally by the person, (ii) evidence that appropriate security procedures were applied as may be authorized by law or the SC, or (iii) other evidence showing integrity and reliability to the satisfaction of the court. Manner of proving authenticity of public document: To be proven as an electronically notarized document in accordance with SC rules (NB: No such rule at the moment) Manner of authenticating electronic signature: (i) evidence to prove the method to establish and verify a digital signature, (ii) other means provided by law, (iii) any means to satisfy the court of its genuineness. Methods of proving electronic documents By Affidavit Evidence: based on personal knowledge and indication of the competence of the affiant to testify on the matters contained therein. The contents of the affidavit shall be

Whenever the rules on evidence refer to a written document it shall include

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affirmed in open court and may be cross-examined as a matter of right by the adverse party in a summary hearing. Electronic testimony: When an examination of a witness is done electronically, the entire proceedings shall be transcribed stenographically. The transcript must be certified and indicate that the proceedings were electronically recorded. The electronic evidence, the recording and the transcript shall form part of the records of the case and shall be deemed as prima facie evidence of the proceedings. Disputable presumptions (after authentication is proved) Electronic signature: (i) it correlates to the identity of the person, (ii) it was affixed with intent to authenticate, (iii) it was affixed to indicate consent to the transaction, and (iv) the process to affix the signature operated without error or fault. Digital signature: In addition to the above, (i) information contained in the

certificate (of the certification authority) is correct, (ii) the signature was created during the operational period of the certificate, (iii) there is no cause to render certificate revocable or invalid, (iv) the message associated to the signature has not been altered from the time of signing, and (v) it has duly issued by the certification authority. Factors to consider in determining evidentiary weight of electronic documents 1. Reliability of manner or method in which it was generated, stored or communicated. 2. Reliability of the manner in which the originator was identified. 3. Integrity of the information and communication system in which it is recorded or stored. 4. Familiarity of the system by the person who made the entry. 5. The nature and quality of the information that went into the communication system where the electronic document was based. 6. Other factors affecting accuracy and integrity of the electronic documents.

Admissibility and proof of ephemeral electronic evidence Ephemeral electronic evidence refers to telephone conversation, text messages, chat sessions, streaming audio or video or other forms of communication that is not recorded or retained. It should be proven by the testimony of the person who was a party to the same, or has personal knowledge of the same, or in the absence thereof, by other competent evidence. If the communication is recorded, it shall be proven as an electronic document. Admissibility and proof of audio, video or photographic evidence The evidence is admissible provided they are shown, presented or displayed to the court and identified, explained or authenticated by the person who produced the same or by a competent testimony on the accuracy thereof.

Jurisprudence in CyberLaw

IBM PHILIPPINES INC., ET AL. VS. NLRC, ET AL.
(G.R. No. 117221, 13 April 1999, Supreme Court - 2nd Division)
(This section will be a regular feature of the journal to highlight significant cases decided in the Philippines and in foreign jurisdictions relating to information technology)
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

compliance with the notice requirements of procedural due process. Later, the NLRC ruled in favor of Israel and found his dismissal to be illegal contending that the computer printouts presented in evidence, to prove that Israel's attendance was poor, were insufficient to show that he was guilty of habitual absences and tardiness. Issue: Whether or not the computer print-outs attached by IBM in its position paper were inadmissible in evidence to prove just cause and due process in the termination of Israel. Ruling: The Supreme Court refused to recognize the admissibility and evidentiary weight of an unsigned

Facts: IBM Philippines Inc. terminated the employment of Angel D. Israel for habitual absences and tardiness. Alleging that he was dismissed without due process and without just cause, Israel filed a complaint before the National Labor Relations Commission (NLRC). To prove Israel's habitual absences and tardiness, IBM attached to its position paper print-outs of alleged computer entries or messages sent to Israel through the company's internal computer system to prove the legal basis for the termination and

computer print-out of the exchanges of e-mails between the company and the dismissed employee that would have proven the latter's habitual tardiness and absenteeism, without the requisite proof of its authenticity and reliability. The Court said:
"The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as
>> [21] Jurisprudence in CyberLaw

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Features
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

OPTICAL MEDIA ACT : A PANACEA TO PIRACY
By Ailyn L. Cortez

A

year ago, the Philippines was on the US priority watch list of international intellectual property protection organizations, notwithstanding government efforts to cut back violation of intellectual property rights (IPR). This was shown in the 2003 "Special 301" annual review which examined the sufficiency and efficacy of intellectual property protection in different countries including the Philippines. [ 1 ] The swift increase in optical disk piracy in the Philippines brought about by the pace of change in, and speed and ease of, electronic communication and copying are both threatening to the basic concept of IPR. It was noted that despite concentrated efforts to clear out video pirates, no one was convicted because of the government's lack of operational means to penalize the bootleggers. As such, the Philippine Government intensified its efforts across the board and enacted stronger laws and regulations on the production of optical disk. The clamor to punish not only the street vendors, as well as the manufacturers of sham materials, led to the competent enforcement of law which spells out that there are real costs, genuine deterrence and actual penalties to be paid for piracy. President Gloria Macapagal-Arroyo recently signed Republic Act No. 9239 known as the "Optical Media Act of 2003." This law was enacted in accord with the Intellectual Property Code of the Philippines to ensure the protection and promotion of intellectual property rights. This act seeks to regulate optical media by imposing stern regulations in the licensing, copying and distribution of optical media such as DVD's, CD's, VCD's, DVD-ROMS, CD

ROMS, CD recordables and rewritables. To implement the new law, the Videogram Regulatory Board (VRB), which was created under Presidential Decree 1987, was reorganized as the Optical Media Board (OMB) under the Office of the President. The board was tasked to institute the means to "regulate the manufacture, mastering, replication, importation and exportation of optical media." [ 2 ] The OMB shall be composed of four exofficio members -- composed of secretaries of the Department of Trade and Industry (DTI), Department of the Interior Local Government (DILG), Department of Finance (DOF), and the Director General of the Intellectual Property Office (IPO) or their duly authorized representatives; and five regular member to be appointed by the President. [ 3 ] There are two mechanisms provided to protect the intellectual property rights, which serve as gatekeeper systems to address the problems on piracy from the very source. First, the OMB shall have the authority to issue, cancel or suspend licenses of establishments or entities registered with the OMB to engage in business of mastering, manufacture, replication, importation or exportation of optical media. [ 4 ] The registration and license issued by the OMB are conditions precedent for securing the necessary business permits or licenses from appropriate authorities and shall also be necessary for the release of manufacturing equipment from customs or economic zones. Second, the OMB shall determine, develop and/or adopt a system of Source Identification (SID) codes. These are

system of codes embedded in the optical media to identify the source of all optical media mastered, manufactured or replicated by any establishment or entity. The SID codes shall be visible and legible and must conform to such specification as prescribed by the OMB for all persons, establishments or entities registered with and licensed by the OMB. [ 5 ] For the purpose of this Act, it is crucial to define a Manufacturing Equipment. Under the law, a manufacturing equipment refer to "any and all equipment, machine or device, now known or to be known in the future, intended or design for the production or manufacture, by mastering and/ or replication of optical media, optical media masters, or production parts thereof, including but not limited to, those which shall be listed in the Implementing Rules and Regulations (IRR) of this Act or as prescribed by the OMB. " [ 6 ] Optical disc writers and such other devices used in personal computers not for commercial purposes shall not be considered as manufacturing equipment. As a deterrent to piracy, the Optical Media Act provides stiff penalties on establishments caught violating the provisions of the law. Those engaging in illegal importation, exportation, mastering, manufacture, and replication of optical media shall suffer imprisonment of 3 years in the minimum and six years in the maximum and a fine of not less than five hundred thousand pesos but not exceeding one million five hundred pesos. Violators who will employ armed assistance shall face a stiffer penalty of nine years imprisonment in
>> [20] Optical Media Act

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THE DOMAIN NAME SYSTEM (DNS) AND ADMINISTERING THE ROOT CCTLD .PH
by Michael Vernon M. Guerrero

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Introduction to domain names he Internet provides diverse content that changes hour after hour and renders the Internet to be, in its totality, a virtual heap of sparsely organized data and resources. One can only imagine the tedious process and the near impossible feat of memorizing numerical IP (Internet Protocol) addresses, like 209.50.251.234, to reach sought resources or websites, if host names or domain names, like www.arellanolaw.net, do not exist. [ 1 ]

A domain name identifies one or more IP addresses [ 2 ] and is used in the global addresses of documents and other resources in the World Wide Web, or the Uniform Resource Locators (URLs), which identify particular Web pages. Every domain name has a suffix that indicates which top level domain (TLD) it belongs to: such as .com for commercial business, .net for network organizations, .org for non-profit organizations, .gov for government agencies, .edu for educational institutions, to name a few. A domain name may further admit an additional suffix that indicates country code TopLevel Domain (ccTLD), a two-letter codes in the ISO 3166-1 standard codes for the representation of names of countries or territories, such as .ph for the Philippines. The Internet Corporation for Assigned Names and Numbers (ICANN) is the internationally organized, non-profit corporation that has responsibility for Internet Protocol (IP) address space allocation, protocol identifier assignment, generic (gTLD) and country code (ccTLD) Top-Level

Domain name system management, and root server system management functions. These services were originally performed under United States Government contract by the Internet Assigned Numbers Authority (IANA) and other entities. As a privatepublic partnership, ICANN is dedicated to preserving the operational stability of the Internet, to promoting competition; to achieving broad representation of global Internet communities, and to developing policy appropriate to its mission through bottom-up, consensus-based processes. [ 3 ] DotPH Inc. is the ICANN Designated Registry Operator of the .ph ccTLD since 1990. Trade names and trademarks visa-vis domain names A domain name locates an organization or other entity on the Internet, usually by appending a gTLD suffix (such as .com, .net or .org) to said organization’s trade name. The selection and acquisition of domain names, thus, stir up property issues as it involves goodwill, trade names and trademarks, which are recognized intangible properties. [ 4 ] As the registries for trademarks / tradenames and domain names are separate and distinct but that both recognize the “first to file” rule, the situation provides opportunity for enterprising entities to purchase domain names that may correspond to another entity ’s trademark purposed for a possible resale of such domain name at a higher price to an obviously interested entity, or purposed for a virtual forum containing adverse opinions against said obviously interested entity. The institutionalization of procedures as to

Uniform Domain Name Dispute Resolution and the deployment of Nameholder warranty clauses in registration contracts with domain registries minimize, but do not eliminate, the conflicting interests between trademark owners and domain name registrants. Chronic intellectual property issues still remain involving the gTLD names – which are supposed to be United States TLDs – because the registries of which are open or available to all possible registrants worldwide. A clear development in the protection of country specific domains involves that of the .us TLD of the United States. The United States, through its appointed central registrar Neustar, provided stricter guidelines for .us TLD registration. For an entity to register a .us domain name, the entity should either be (1) a natural person (i) who is a United States citizen, (ii) who is a permanent resident of the United States of America or any of its possessions or territories, or (iii) whose primary place of domicile is in the United States of America or any of its possessions; or (2) a United States entity or organization that is (i) incorporated within one of the 50 US states, the District of Columbia, or any of the United States possessions or territories, or (ii) organized or otherwise constituted under the laws of a state of the United States of America, the District of Columbia or any of its possessions or territories (including a federal, state, or local government of the United States or a political subdivision thereof, and noncommercial organizations based in the United States); or (3) a foreign entity or organization that has a bona fide

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presence in the United States of America or any of its possessions or territories. [ 5 ] On the other hand, for an entity to register a .ph domain name in the Philippines, the Domain Name Applicant need only to be either (1) an identifiable human individual (over the age of 18 years); or (2) a legally recognized statutory entity (such as a corporation, limited liability company, partnership, or PLC). [ 6 ] gTLD name registrations from the Philippines are relatively high inasmuch as having a gTLD name is perceived to have a greater prestige than having a ccTLD name in light of the former’s “international” stature; or on the economic side, that the cost of purchasing a gTLD name is relatively cheaper than purchasing a ccTLD name. [ 7 ] Domain name wait-list ICANN approved the creation of VeriSign Inc.'s "wait-listing service" on 6 March 2004, allowing people to bid on domain names that are about to expire. Only one person is allowed to speculate or reserve a domain name, owned by somebody else, at a time. Speculation is fraught with risk as one is not sure whether a domain name would even return to open market. Speculators would pay $20 a year, excluding markup, year on end without any return on their investment. The waitlist service is not new in the Philippines. DotPH has been offering a wait-list service since September 2002, where a prospective registrant who signs up for the Waitlist is first in line to get a domain that expires and is not renewed. The cost of signing up for the Waitlist service is the same as registering a domain. If the current registrant renews the domain or the person on the Waitlist simply gets tired of waiting for the domain to expire, he can use the Waitlist fee to register an available domain. The registrant can even choose to Waitlist another domain instead, at no extra charge. [ 8]

The US model on the wait-list service is different inasmuch as one cannot recover the wait-listing fee if the current registrant of the coveted domain name renew his subscription. The opportunity to shift the application of the wait-listing fee in the Philippines to an available domain name or to another domain name that may be waitlisted very much considers paragraph 3, Article 1461 of the New Civil Code of the Philippines (RA No. 386) which provides that the “sale of a vain hope or expectancy is void.” Proposed Philippine government control on the .ph ccTLD On 13 January 2004, the National Telecommunications Commission (NTC) issued a working draft of its “Guidelines in the Administration of the .Ph Domain Name.” The NTC stated in the guidelines’ preamble that the .ph domain name is a public resource and is part of the Philippine national patrimony; that the State has the sovereign right over Internet-related public policy issues; that the Internet community must be ensured with an efficient, stable, fair and transparent administration of the .ph domain; and that the administrator of the .ph domain is the trustee of the country code top level domain for the Philippines and the global Internet community, and thus is accountable to the local Internet community and must be able to carry out the necessary responsibilities, and have the ability to do an equitable, just, honest and competent job. It outlined the qualifications, delegation and recognition, and technical competence of the Administrator; the management and delineation of functions as to the registry and the various registrars; the registration of domain names, and all matters pertaining to transparency and accountability, fairness, service, privacy in the registration thereof; the use, marketing and promotion of the .ph domain; dispute resolution; and redelegation of the registry.

On 4 February 2004, the PH domain Registry (dotPH) submitted its comments stating thereon, among others, that specific problems must be identified and solutions found via a collaborative effort of both parties. DotPH announced its intention not to attend the 30 March 2004 hearing as (1) no problems in PH domain operation/ administration have been pointed out by the government despite DotPH’s repeated requests; (2) that the government has not shown that there is a need for Guidelines at all and that these will not result in new, additional problems; and that government has not responded to inputs previously given, preventing the Guidelines to be discussed on its own merits. DotPH however reiterated its intent to continue participating in the process, hoping for a comprehensive solution. The crux of contention revolves around the issue whether the .ph domain is “part of Philippine patrimony” subject to “sovereign right” of the State; or whether the .ph domain is a US Government resource inasmuch as ICANN reports its proposed actions on domain registry re-delegation, including ccTLDs, to the US Department of Commerce. From thereon flows the issue whether the Philippine Government, in the exercise of its police power, is the ultimate authority on the .ph ccTLD so as to formulate separate guidelines on the re-delegation of the administration of the Registry; or whether the delegation or re-delegation of the ccTLD is within the jurisdiction of ICANN where the government is only in the same level as the local Internet community, whose interest is given equitable consideration in the processing of a request for redelegation. It must be noted that ICANN handles all requests for redelegation and thus, has the responsibility to neutrally investigate and assess requests on all matters relating to changes in the DNS root, including ccTLD delegations and
>> [20] The Domain Name System (DNS)

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Features

SPAMMING THE WORLD
by Charilyn A. Dee

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

pam, spam, spam, spam.....no, no, no it is not the kind that we eat. This one is a technical term referring to unsolicited e-mail messages appearing in your inbox. These messages are called by many other names, but the most commonly used term to describe it is "spam." There are a lot of theories abounding in the Internet as to the reason behind the name but the most reliable is a story, rumored to have originated from the MUD/MUSH community, told by blue haired former news administrator Nathan J. Mehl and summarized in www.cybernothing.org: "My friend-who-shall-remainnameless was, ah, a younger and callower man, circa 1985 or so, and happened onto one of the original Pern MUSHes during their most Sacred Event - a hatching. After trying to converse sanely with two or three of the denizens, he came quickly to the conclusion that they are all a bunch of obsessive compulsive nitwits with no life and less literary taste. (Probably true.) Cybernothing editor's Note: another source tells me that this actually happened in the summer of 1991. So, as the 'eggs' were 'hatching', he assigned a keyboard macro to echo the line: SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM SPAM

...and proceeded to invoke it once every couple of seconds, until one of the wizards finally booted him off. ...which would have probably been that last that anyone ever heard or thought of it, except that it apparently ingrained itself into the memory of the PernMUSHers, and forever after there was the legend of 'that asshole who spammed us.' Every once in a while, this story makes it back to my friend, and he tries very hard to keep a straight face... " [ 1 ] Spam, a formerly harmless form of electronic advertisement, is now gaining attention from the legislative arm of various governments, notably of the United States, Australia, and the European Union. Complaints of the end-users inconvenienced by spamming are mounting. The Australian government drafted its version of an anti-spam law because 50% of e-mails received by end-users are spam that resulted in increased download time and Internet access costs. [ 2 ] In the United States, average Americans spend fifteen hours deleting spam compared to two hours in 2002. [3] Roughly the same numbers apply in other countries harassed by spam. Marketers who use this form of advertisement are seldom reputable as can be deduced from the most common forms of spam. Examples are: 1. Chain letters 2. Pyramid schemes (including Multilevel Marketing, or MLM)

3. Other "Get Rich Quick" or "Make Money Fast" (MMF) schemes 4. Offers of phone sex lines and ads for pornographic web sites 5. Offers of software for collecting e-mail addresses and sending UCE 6. Offers of bulk e-mailing services for sending UCE 7. Stock offerings for unknown startup corporations 8. Quack health products and remedies 9. Illegally pirated software ("Warez")
[4]

The problem There are many spam-caused problems but the most pertinent is the cost borne by the end users. Sending spam mail is amazingly cheap since it only requires a 28.8 kbps dial-up modem and a PC. A spammer can send hundreds of bulk e-mails per hour. However, the effect of this falls on the end-users especially those who pay for personal e-mail services. In the technical sense, the Internet is a worldwide system of computer networks that allows data to be routed and rerouted before the data arrives to its destination. Each data passing through this network system contains the address of the source and the destination. The routers read the address and then send it to the appropriate router which repeats the same process until the data arrive to its destination. For example, atypical

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e-mail is virtually divided into "packets" for transmission because its mere size would limit the possibility of a single transmission. Dividing information into packets makes it more manageable and thus avoids data loss. The router can only read the packet at a time. This creates the delay in sending and receiving mails via the Internet. So just imagine if there was delay in sending and receiving e-mails before spams, how much more with the introduction of spams? The problem doesn't end there. Instead of processing only important mails, spams create a drag on the CPU of ISPs resulting in lost time and resources of end users. Data are lined up in queues of unsolicited mails, or SPAMS. [ 5 ] Spam abuse legislation In answer to the growing problem of spams, some countries took appropriate measures. These countries differ in whether subscribers should "opt-in" or "opt-out" spam. Optin is for the user to give consent before receiving spam, whereas optout is when the user automatically receives spam and expresses his/her refusal to accept such messages to the spammer via e-mail to whatever address the spammer gave. United States Last 1 January 2004, the Can-Spam Act of 2003 went into effect. The law prohibits e-mail senders to falsify or disguise their identity by using misleading subject lines, improperly harvesting e-mail addresses, or taking advantage of automated systems for generating electronic addresses by combining names, letters and numbers. Business should not market themselves through false or misleading e-mails, and a true return e-mail and postal address must be provided along with a means to optout of receipt of further e-mails.

Pornographic sites are required to give conspicuous notice that the email is a solicitation or advertisement and sexually-oriented and plainly labeled as such. [ 6 ] European Union A directive was drawn up in July 2002 and came into force in October 2003, but only four countries brought their national legislation up to the new standards. The directive requires the consent of the customer before the message can be sent. Within the existing customer relationship, it is reasonable to offer similar products or services provided that with each message the customer should be informed about their further use of the customer's email address in a clear and distinct manner, and be given the opportunity to refuse such usage. [ 7 ] South Korea The revised anti-spam law of South Korea was successful in curbing the increase of spam. The law prohibits the harvesting of e-mail addresses from websites and the use of technical means to get around spam blocks. It also strengthened control of illegal labeling of commercial e-mails and protection of juveniles from spamming.[8 ] Australia The anti-spam laws of Australia adopted the opt-in policy in receiving unsolicited commercial e-mails. It banned the distribution and use of email harvesting and list-generating software that allow spammers to make a list of e-mail addresses. Furthermore, it provides that all commercial messages will have to include full details of the sender's name and physical address, as well as an unsubscribe option allowing recipients to stop any further messages. [9] Violators will have a fine of more than $A1 million. [ 10 ]

Malaysia A country that chose to take another route in tackling the issue is Malaysia. Malaysian authorities preferred to educate the people in using the Internet to protect themselves. So far, it is the only country waging an active war against spamming through education. Effective? Despite the best intentions of lawmakers, the power of anti-spam legislation is still highly criticized and doubted. The survey released by Pew Internet and American Life Project shows that even after the implementation of Can-Spam Act, spamming continues to be a problem. The survey further shows that: "In terms of emails received on personal email accounts, 24%of respondents are receiving more spam than before January 1, 53% have not noticed a change, 3% do not know, and only 20% report that they are receiving less spam. With respect to work-related email accounts, 19% of respondents say that they are receiving more spam, 53%. have not noticed a change, 18% do not know, and only 11% state that they are receiving less spam. The survey shows an overall increase of email users who have reduced their use of email because of spam from 25% last June to 29% now. While last June 52% of users said that they are less trusting of email because of spam, that percentage now has jumped to 63%. Moreover, the percentage of users who report that spam, has made being online
>> [21] Spamming the World

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A SYNOPSIS OF THE E-COMMERCE LAW
by Jaime N. Soriano

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

n response to the global devastation of computer networks brought about by the "I Love You" virus suspected to have originated from the Philippines, Congress immediately enacted Republic Act No. 8792 on 14 June 2000. Also known as the "Electronic Commerce Act of 2000", the law was hailed by observers as a landmark piece of legislation that finally placed the Philippines on the map of electronic commerce. [ 1 ] The Philippines was the fourth country, after Malaysia, Singapore, and Korea, that legislated a law on e-commerce. The Implementing Rules and Regulations of the e-Commerce Act were adopted on 13 July 2000. This law "aims to facilitate domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information through the utilization of electronic, optical and similar medium, mode, instrumentality and technology to recognize the authenticity and reliability of electronic documents related to such activities and to promote the universal use of electronic transaction in the government and general public." [ 2 ] Essentially, the law provides: 1. 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 noncommercial, private or public, or domestic or international. 2. 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. 3. 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. [ 3 ] 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 key [ 4 ] 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. 4. 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. 02-7-02SC or the Rules on Electronic Evidence that took effect on 1 August 2001. 5. 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. 6. The law was also made applicable to actions related to contracts of carriage of goods, including but not limited to: [ 5 ] (a) statements, declaration or information about the goods, (b) confirmation on the delivery, loading or receipt of the goods, (c) notices or communication on terms and conditions of contract; instructions to carrier; any loss of, or damage to, the goods; specific instructions for the release or delivery of goods; or, any other notice about the performance of the contract, (d) granting, acquiring, renouncing, surrendering, transferring or negotiating rights in goods, (e) acquiring or transferring rights and obligations under the contract. Contract of carriage of goods can therefore be in the form of electronic documents under the ECommerce Act. However, in cases contemplated in (d) and (e), "no paper document used to effect any such action is valid unless the use of electronic data message or electronic document has been terminated and replaced by the use of paper documents. A paper document issued in these circumstances shall contain a statement of such termination. The replacement of electronic data messages or electronic documents by paper documents shall not

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affect the rights or obligations of the parties involved." [ 6 ] 7. Government offices, including government-owned-andcontrolled corporations, should conduct their transactions electronically within two (2) years from the effectivity of the law. 8. Internet service providers merely providing access to electronic data message or electronic documents in the ordinary course of its business are generally not subject to any civil or criminal liability. Only persons having legal right to the possession of electronic files can have access, and make, or authorize, alterations thereof. Unless consent is given to another person or party, electronic key for identity and integrity is only available to the person or entity in lawful possession of the electronic key. Any person who has authority to access an electronic file or information is bound by the rules on confidentiality of such file or information. 9. Penalties of fine and/or imprisonment are imposed for violations as defined under the law specifically: (a) hacking, cracking or unauthorized access or interference, or corruption and

destruction of computer, information and communication systems, without the consent of the owner, including the introduction of virus; (b) piracy, reproduction, distribution, transmission, or alteration of protected materials and intellectual property including electronic signatures; (c) violations of the Consumer Act [ 7 ] through electronic means; and, (d) other violations of the provisions of the e-Commerce Law. The Philippine law on e-Commerce was patterned after the "UNCITRAL Model Law on Electronic Commerce" adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1996. [ 8 ] The model law is intended to promote the harmonization and unification of international trade low and remove unnecessary obstacles to international trade caused by inadequacies and divergences in the law affecting trade as a result of the information technology revolution. The Model Law was prepared and adopted in response to a major change in the means by which communications are made between parties using computerized or other modern techniques in doing business. It is intended to serve as a model to countries for the evaluation and

modernization of certain aspects of their laws and practices in the field of commercial relationships involving the use of computerized or other modern communication techniques, and for the establishment of relevant legislation where none presently exists. The Internet, being the backbone of the digital age, has gained considerable interests, not only among the millions of net users, but also among legal and policy stakeholders. Internet law continues to evolve as ecommerce dramatically flourishes. As more and more rules are being adopted and applied governing Internet activities, there is compelling need for the crafting or re-crafting of laws, policies and regulation, both in local and international levels, as digital technology continue to develop and redefine business models in the information economy.
Endnotes 1. Bagares, Romel, "New Rules (of Court) for the New Economy", The Philippine Star, 27 July 2001, p. B-1. Sec. 3, R.A. No. 8792 Sec. 5 (e), R.A. No. 8792 Sec. 5 (f), ibid. Sec. 25, R.A. No. 8792 Sec. 25 (5), R.A. No. 8792 R.A. No. 7394 During its twenty-ninth session (605th Meeting) on 12 June 1996

2. 3. 4. 5. 6. 7. 8.

“TWENTY-FOUR HOURS A DAY, SEVEN

DAYS A WEEK, MILLIONS OF PEOPLE IN EVERY NOOK AND

CORNER OF THE PLANET EARTH ARE HOOKED IN REAL TIME TO THE INFORMATION SUPERHIGHWAY AND PARTAKING THE BOUNTY OF DIGITAL TECHNOLOGY. CERTAINLY, INFORMATION TECHNOLOGY HAS CHANGED THE WAY PEOPLE LIVE, THE WAY THEY INTERACT, THE WAY THEY PURSUE KNOWLEDGE, THE WAY THEY ENTERTAIN THEMSELVES, AND THE WAY THEY TRANSACT BUSINESS. EVOLVING AND DEFINING A TOTALLY NEW CULTURE OF HUMAN INTERACTION.

THE DIGITAL

ERA HAS TRANSFORMED THE WORLD INTO A VIRTUAL GLOBAL COMMUNITY THAT IS GRADUALLY

AS IN ANY PROCESS OF DRAMATIC CHANGE, THERE ARE INHERENT THREATS AND WEAKNESSES, BUT
THE INFORMATION TECHNOLOGY REVOLUTION SHOULD BE TAKEN IN THE CONTEXT OF ITS CHALLENGES, OPPORTUNITIES AND BENEFITS. NOW IS THE BEST TIME FOR PRACTITIONERS OF LAW TO SET THE STAGE FOR WIDER AND DEEPER INVOLVEMENT IN THE PARADIGM SHIFT TO HELP DEFINE THE RULES OF THE GAME AND MAKE INFORMATION TECHNOLOGY WORK.” - J. N. SORIANO, EXECUTIVE

DIRECTOR, CENTER FOR E-LAW, ARELLANO UNIVERSITY SCHOOL OF LAW

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Features

OVERVIEW OF SELECTED LEGAL AND REGULATORY ISSUES IN ELECTRONIC COMMERCE
Reprinted from E-Commerce and Development Report 2001 of the United Nations Conference on Trade and Development (UNCTAD) [ * ]

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Finding global solutions address global transactions

to

Disputes in cyberspace: online solutions needed for online problems It is well known that public lawmaking is too rigid, too slow in responding to the need for immediate adjudication, and too slow adapting to changes to the social, technological and commercial customs of cyberspace. In contrast, private lawmaking and private adjudication are more flexible and readily adapt to the diverse evolving technological and social nature of cyberspace and its changing commercial practices. Given that traditional dispute settlement mechanisms may not provide effective redress in electronic commerce transactions for a large number of the small claims and low-value transactions arising from B2C online interactions, this chapter analyses the various alternative dispute resolution (ADR) mechanisms that would provide speedy, low-cost redress. When ADR takes place using computer-mediated communications in the online environment, it is often referred to as online dispute resolution (ODR). Both e-disputes and bricks-and-mortar disputes can be resolved using ODR. The system could be used in a variety of contexts, including within a particular online market place (e.g. mediation in online auction sites, arbitration in the domain name system and in the automated negotiation process for insurance disputes), as part of a trustmark or seal programme, or on an independent basis. These ODR mechanisms range from those which are fully automated - in that a computer program without human intervention

nsuring users and consumers effective redress for disputes arising from transactions in the online environment is a key element in building trust. There is a widespread awareness of the potential legal barriers arising from recourse to courts in disputes resulting from cross-border online interactions. Which law applies? Which authority has jurisdiction in the dispute? Which forum is competent to hear the dispute? Is the decision enforceable? These are some of the questions that all too often arise and for which there is not yet a clear answer. Electronic commerce has increased the need to rely on party autonomy, the choice-of-court clauses becoming central to any discussion of court jurisdiction. Thus, it is essential that national legal systems clearly provide for rules on which parties can rely in order to ensure that their choiceof-court clauses will be deemed valid. Uncertainty in this respect is detrimental to the trust which private operators will have in the judicial and legal systems of a particular country. To assist States in their efforts to accommodate e-commerce, this chapter analyses a number of options for countries wishing to develop a set of choice-of-court rules. A difference is made in this regard within businessto-business (B2B) and business-toconsumer (B2C) contracts, as well as between (i) contracts concluded online and performed offline, and (ii) contracts concluded and performed online.

generates outcomes - to most other ODR providers that offer dispute settlement with human intervention. Parties may contract for a range of ODR services from mediation, which aims at encouraging the parties to reach an amicable settlement of their disagreement, to binding arbitration, which imposes on the parties a legally enforceable arbitral award. As of December 2000, more than 40 ODR providers had been identified. Jurisdiction: is your enterprise website regarded as a branch? Concerning jurisdiction, two main questions are addressed: (i) can an Internet site be regarded as a branch or establishment for any legal purpose? and (ii) is the level of interactivity relevant? As regards the first question, it seems that the tendency is to consider that a website does not qualify as a branch or permanent establishment. Thus, the place of establishment of a company providing services via an Internet website is not the place at which the technology supporting its website is located or the place at which its website is accessible, but the place where it pursues its economic activity. The answer to the second question for a large number of countries is also clear: whatever the level of interactivity of the website, it will not change the answer to the first question. However, if a site is an interactive one, it may lead some countries, which apply a doing business concept for court jurisdiction to assert jurisdiction as long as the interactivity can be seen as a clear link with the State whose courts assert jurisdiction.

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Applicable law: a new concept of consumer protection As regards applicable law, an important difference has to be made between B2B and B2C contracts. Concerning B2B contracts, there is a renewed interest in codes of conduct. Thus, States are confronted with an ever-increasing duty to define carefully the limits of their public policy rules, since operators over the Internet often develop their own codes of conduct. Whether or not operators can include a choice-of-law clause in their contracts will be determined by the public policy of each State. In the case of B2C contracts, and for a large majority of countries where consumers are protected, the law applicable would be the one which is more favourable to the consumer. Therefore, if the law of the location of the consumer is more favourable, it will apply; but if, on the contrary, it is not, the law of the professional who supplied the service or the goods will apply. This is the main reason why Internet operators have been so keen to block all adoption of rules of the same nature for the Internet. This is one of the areas that would greatly benefit from an international agreement on common rules of protection for consumers. Concerning torts, most decisions which have been taken by national courts around the world apply the law of the place where the effect is felt, and not that of the country where the tort was committed. This rule needs to be reassessed against Internet specificity. Data protection: convenience at the cost of privacy? The question of privacy and data protection over the net is another important issue. It is well known that the value of many Internet corporations depends on the amount of data they are able to gather. Thus, personal data about consumer habits, tastes and the like are of great value to any corporation wishing to operate over the net. A consumer may want to limit the

availability and use of each of these types of information and may make decisions about entering into a transaction_ based on the extent to which the information will be protected. The problem is not new, what is new is its scale. It is this dilemma - keeping our personal information private, while allowing use of that information to make our lives easier - that is the crux of the current data protection debate. The more legal protection and control individuals are provided with as regards their personal information, the more costly it becomes for companies to comply with those protections, and for Governments to investigate and prosecute violations of those rights. Removing legal barriers to the free flow of information, while allowing for more innovation, development, and more personalized service, will lessen legal protection of personal information. Although the unification of substantive law remains the best solution for international protection of privacy and personal data, in practice it is not always possible to unify all aspects of the law. Therefore, the question of applicable law (e.g. the law of the location of the person whose data are collected) is still pertinent in this context. However, when the conflict rule clashes with the economic needs of Internet operators, it must remain a default rule to be applied only if substantive unification is not possible. Legal recognition of electronic signatures: the options As regards encryption and electronic signatures, there seems to be a consensus that a mechanism for secure authentication of electronic communication is critical to the development of electronic commerce. Such a mechanism must provide for confidentiality, authentication (enabling each party in a transaction to ascertain with certainty the identity of the other party) and non-repudiation (ensuring that the parties to a transaction cannot subsequently deny their participation). This chapter provides a review of the

basic approaches to electronic signature legislation together with some recent samples of regional legislation that might guide States wishing to prepare legislation on electronic signatures. Cybertaxation: No escape So far, businesses have enjoyed a largely tax-free e-commerce environment. In other words, goods and services transmitted electronically have not been subject to taxation. However, fears of revenue losses from uncollected taxes and duties on Internet transactions have prompted many Governments to work towards internationally agreeable solutions with regard to changing existing tax legislation to take account of ecommerce. Who pays the VAT: buyer or seller? At the centre of the e-commerce taxation debate are two issues: consumption and income taxation. As far as consumption taxes are concerned, the question arises whether the tax should be collected in the jurisdiction of the supplier or the consumer. Under current legislation foreign suppliers are often exempted from VAT This provides incentives for suppliers to locate abroad and gives an unfair competitive advantage to foreign suppliers. Therefore, there seems to be a growing tendency towards applying taxation in the place of consumption. Given the disappearance of intermediaries who previously collected the VAT, it is not clear yet who should collect the taxes now. The EU has proposed that the foreign supplier should register in a EU country for VAT purposes. The United States, being the largest exporter and a net exporter of ecommerce, tends towards an originbased consumption tax. Furthermore, it has little interest in collecting VAT for European tax authorities on their ecommerce goods and services exports to the EU. Developing countries, which will be largely e-commerce importers in the short to medium run, would

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have an interest in not eroding their tax base by switching to an origin-based tax system. Is my website a taxable business? As far as income taxation is concerned, much of the debate has focused on the issue of the "permanent establishment" (PE) of a business. This will determine to what extent an Internet-based business will be subject to taxation. The definition of PE is important for countries that apply source-based income taxation (the majority of countries). Agreement has been reached at the OECD on the following issues: (i) a website by itself cannot constitute a PE; (ii) a web server hosted by an Internet service provider (ISP) cannot constitute a fixed place of business if the ISP does not carry on business through the server; (iii) a web server can constitute a fixed place of business and thus a PE if it is owned by a business that carries on business

through the server; and (iv) ISPs cannot be PEs of the businesses whose websites they host. Developing countries, even if they are not part of an OECD agreement on Internet taxation, should use the agreed-upon rules as a basis for adjusting their own legislation. Since they are net importers of e-commerce, they will run a greater risk of losing revenues if traditional imports are replaced by online delivery, and should thus start to develop efficient tax collection systems for e-commerce. No customs duties on digital goods: a fiscal concern? In accordance with a WTO moratorium, no customs duties should be imposed on electronic transmissions. While a large number of (mainly developed) countries prefer to extend the moratorium, some developing countries have expressed concern about potential revenue losses

resulting from uncollected border tariffs. The question of how to define digital goods (books, CDs, software, music etc.) - as goods or as services has held up progress on e-commerce in the WTO. While border tariffs are normally collected on goods, they are not collected on services. Developing countries have therefore raised the question of potential fiscal implications if digital products are imported dutyfree. UNCTAD calculations show a potential fiscal loss of approximately US$ 1 billion on border tariffs and US$ 8 billion if other import duties (including VAT) are taken into consideration. While these amounts are small relative to total government revenue, absolute losses from forgone tariff revenues are much higher in the developing countries, owing to their higher tariffs applied to digital products.
Endnotes * Citations omitted

LEXICON OF CYBERLAW TERMINOLOGY
(This will be a regular section to acquaint law practitioners, students and researchers on legal terms in IT law preferably from the Philippine context).

The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

"Computer" refers to any device or apparatus which, by electronic, electromechanical or magnetic impulse, or by other means, is capable of receiving, recording, transmitting, storing, processing, retrieving, or producing information, data, figures, symbols or other modes of written expression according to mathematical and logical rules or of performing any one or more of those functions. (Sec. 5 (b), R.A. No. 8792) "Information and communication system" refers to a system intended for and capable of generating, sending, receiving, storing or otherwise processing electronic data messages

or electronic documents and includes the computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic data message or electronic document. (Sec. 5 (d), R.A. No. 8792) "Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (Sec. 1 (k), Rule 2, Rules on Electronic Evidence) "Optical Media" refers to the storage medium or device in which information, including sounds and/ or images, or software code, has been

stored, either by mastering and/or replication, which may be accessed and read using a lens scanning mechanism employing a high intensity light source such as a laser or any such other means as may be developed in the future. (Sec. 3 (i), R.A. No. 9239) "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. (Sec. 5 (f), R.A. No. 8792)

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Contributions are Welcome

91 NEW LAWYERS FROM THE ARELLANO UNIVERSITY SCHOOL OF LAW

T O
he Philippine IT Law Journal welcomes the submission of contributions with a view to publication, which should be sent to: The Board of Editors The Philippine Quarterly IT Law Journal Arellano University School of Law Taft Avenue, corner Menlo Street Pasay City 1300 Philippines Tels. (2) 404-3089 to 91 Fax. (2) 521-4691 eMail: itlawjournal@arellanolaw.net as should all correspondence, books for review, orders and other communications. The Board of Editors will only consider material which complies with the following: 1. The submission is an original, unpublished work which is not being submitted for publication elsewhere. The manuscript must be typed, double-spaced, on one side only of a uniform sized paper, and be accompanied by the text on floppy disk in a recognized software. Footnotes must be numbered consecutively throughout the article. Authors may use graphs, tables, figures, or mathematics only when its application is necessary for achieving the stated objective of the paper. When mathematics is used, the necessity for doing so should be explained, and the major steps in the argument and the conclusions made intelligible to a nonmathematical reader. 2.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

n 2 April 2004, the Supreme Court released the names of 1,108 successful examinees of the 2003 Bar Examinations, representing 20.71 percent of the total examinees. The 91 new lawyers from the Arellano University School of Law are:
AGACITA, Romeo Jr. E. AGBAYANI, Rommel Chrisante F . AGUILAR, Jose Jr. P . AGUIRRE, Ma. Luisa L. ALAMADA-MAGAYANES, Sharon M. ALONDAY, Pearl Joy A. APARICIO, Romel A. AQUINO, Robertson R. BABANO, Wilfred S. BARRION, Zennia C. CABASUG, Elegio D. CADER, Sittie Phamy G. CALINGASAN, Karlo L. CASTRO, Joselito C. CAYABYAB, Odgie C. CHUN, Ian Steven C. CLEMENTE, Clemente M. COTAY, Cathleen Elizabeth L. DELA CRUZ, Remelito M. DE LEON, Sheila B. DELMORO, Joebil B. DEOCAMPO, Leo B. DIZON, Clarence S. DUMBRIQUE-VILLAVICENCIO, Rose Anne B. DY, Dennis L. FAJARDO, Agapito E. FAJARDO, Leilanie R. FAJARDO, Rey Christopher D. FALCOTELO, Rochelle Ann L. FULTON, Kenneth P . GALICIA, Noel M. GAMBOL, Jessica A. GAYAPA, Kristine Marie Therese O. GENESELA, Cliff Richard E. GIANAN, Fredeswindo Jr. M. GOLEZ, Norman T. GRIMALDO, Rodel R. GUERZON, Elmer Joseph R. GUILLERMO, Adela S. GUILLERMO, Maria Vida M. HERNANDEZ, Arsenio Jr. IROG, Arnel C. JACOB, Louella C. JAMORA, Alfred Joseph T. JIMENO, Jennifer A. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. KATIGBAK, George S. LABO, Eduardo Jr. L. LAVARIAS, Lope Jr. A. LILAGAN, Freddie V. LIWANAG, Geraldine C. MACALDO, Felipe Jr. E. MACARAIG, Allan Dexter P . MACARAYA, Alan Felix Jr. J. MACARINE, Ingemar P . MADELAR, Ma. Ramona P . MANAIG, Michelle C. MARASIGAN, Arth Jhun A. MARIANO, Rizaldy C. MARTINEZ, Michelle D. MELLA, Danny J. MIRABUENO, Marion Gay C. MONTEFALCO, Romeo Jr. M. NAIG, Franklin A. NATIVIDAD, Ma. Teresita A. NAVARRO, Dexter L. OCAMPO, John Vincent P . PASCUA, Edward S. PUNCIA, Maria Alma Corazon H. RAMA, Lorelee Anne Y. RAMOS, Regina Paz A. RAMOSO, Ian P . REYES, Maria Rehgeis C. RIVERA, Neil Randy P . SACRO, Roderick P . SALGADO, Alwin N. SALVADOR, Barry Boy A. SANTILLAN-VISTO, Sta. Cecilia M. SAYAGO, Felix S. SIAYNGCO, Jeremy C. SINGZON, Loralaine S. SOLIS, Ronald L. SOMERA, Dencio Jr. G. SUBIERA, Cielita S. TAGALICUD, Nonilon L. TALON, Mae Antonnette F. TAN, Dante E. TENORIO, Grachielle E. TOBIAS, Ludovino Joseph Augusto Jr. L. TORRES, Francisco Jr. E. TUAZON-ALBERTO, Cristina T. ZAPANTA, Jason J.

3. 4.

Authors are asked to refer to a recent issue of the Philippine IT Law Journal for style. More detailed guidance will be sent on request. Authors are encouraged to carefully edit their own works.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

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[9] Optical Media Disc

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[24] e-Law Center

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the maximum and fine not exceeding three million pesos. Those who buy and sell pirated discs shall face at least one year but not more than three years of imprisonment and a fine of not less than one hundred thousand pesos but not exceeding five hundred thousand pesos. Employment of armed resistance will double the imposition of penalty of uniform imprisonment to three years but not more that six years and a fine not exceeding one million five hundred pesos. [ 7 ] The large-scale piracy in the country, which completely disregards the rights of the creators and performers of films and musical recording, is a stumbling block to the economic growth of the country. Hopefully, the Optical Media Act will serve as an adequate legal support for the enforcement of intellectual property rights in the Philippines.
Endnotes 1. 2003 Special 201 Report, United States Trade Representative (1 May 2003). Accessed 9 April 2004. http:// w w w . u s t r. g o v / r e p o r t s / 2 0 0 3 / specia1301.htm RA No. 9239, Section 2, 2nd paragraph Ibid, Sec. 6 Ibid., Sec. 13 Ibid., Sec. 18 Ibid, Sec. 3, par. f Ibid., Sec. 19 <<
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

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Regularly organize and hold lectures, trainings, seminars, conferences or presentations on technology law, particularly to make its students, faculty and graduates, and the academic community at-large always attuned to, and be recognized as a leader in, legal developments in this field. Assist in the development of an appropriate infrastructure to make the law school the most technology-friendly institution in the field of law by promoting and enhancing its on-line legal research and interactive legal instructions capabilities. ·

Establish appropriate linkages with other institutions, organizations, or bodies, in and out of the country, with the end of view of promoting common objectives, sharing resources, study exchange, and institution of networks along the lines of technology law particularly as it affects the Philippine legal community. Generate grants, sponsorship, or funds to subsidize specific studies, research, projects or investigations on a distinct or difficult aspect of technology law.

·

The Center was organized on 22 November 2002 and is headed by Professor Jaime N. Soriano, a cyberlaw practitioner.
System (DNS) server to translate domain names into IP addresses so that such computers in the Internet may be able to communicate with each other. 2. Identifiers for computers or devices on a Transmission Control Protocol/Internet Protocol [TCP/IP] network, the format of which is a numeric address written as four numbers – each between 0 and 255 – separated by periods. Definitions for “domain name”, “IP addresses,” “TLD,” and “URL” acquired or retrieved on 28 March 2004 from www.webopedia.com. Copyright, 2004 Jupitermedia . All rights reserved. Reprinted with permission from http:// www.internet.com. 3. ICANN website. Retrieved on 28 March 2004 . www. icann.org/general/ 4. Article 520 to 522 of the Civil Code of the Philippines; Sections 121 to 160 of the Philippine Intellectual Property Code (R.A. No. 8293). 5. Neustar website. Retrieved on 28 March 2004 . http://www.neustar.us/ 6. Policies, DotPH website. Retrieved 28 March 2004. http://www.domains.ph/ Policies4.asp 7. .com, .net registration may be as low as PhP 800 per year (or US$14.28 as of late March 2004 exchange rates) while .ph remains at US$70 per two years. 8. News, dotPH website. Retrieved on 28 March 2004. http://www.domains.ph/ news.asp?more=http:// registrarnews.ph/dotphnews/archives/ 000063.html#more 9. “Request for Comments.” RFC 1591, entitled “Domain Name System Structure and Delegation” was issued by Dr. Jon Postel on March 1994. 10. Entitled “Internet Domain Name System Structure and Delegation” (ccTLD Administration and Delegation, May 1999).

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[24] e-Law Center

redelegations. It uses RFC 1591 [ 9 ] as a basis, along with ICP-1, [ 10 ] and the ICANN Governmental Advisory Committee Principles for the Delegation and Administration of Country Code Top Level Domains (GAC Principles). Global issue whether national governments or the private sector should control the Internet The issue whether government(s) or the private sector should control the Internet is not locally isolated. In December 2003, United Nations (UN) member countries requested the UN Secretary General to put together a panel of experts from government, industry and the public to study who should control the regulation of the Internet. Some developing countries have urged the UN to assume control over many of ICANN's primary functions, but US and European leaders have urged the UN to affirm ICANN's role. The high-tech summit reconvenes in Tunisia in 2005.
Endnotes 1. It must be noted, however, that the Internet is based on IP addresses, and not on domain names, and thus every Web server requires a Domain Name

2. 3. 4. 5. 6. 7.

[24] IT Law Society

abreast with the developments in this field. Lastly, the Advocacy Group will pursue policy initiatives and advocacies on the development of information and communications technology as they affect Philippine laws and law practice, including the crafting of proactive proposals for legislative or regulatory action. The activities of these groups would be under the direction, auspices and thrusts of the e-Law Center.

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

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[3] Mercantile Law Bar Exam

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[13] Spamming the World

Endnotes 1. Definitions for “hack,” “crack,” and “hacker ”acquired or retrieved on 2 April 2004 from www.webopedia.com. Copyright, 2004 Jupitermedia . All rights reserved. Reprinted with permission from http://www.internet.com. Section 185, R.A. No. 8293 provides in part, “Fair Use of a Copyrighted Work. — xxx Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. ” Section 33 (a), RA No. 8792. Windows 95, 98, ME, XP Home, NT, 2000, XP Professional are trademarks of the Microsoft Corporation. On the other hand, visit www.linux.org for information on Linux. The last option, however, is not available under Windows 98. To do so, within the word processing (Word) or spreadsheet (Excel) application, click on “File,” then “Save As.” When the Save As dialog box appears, click on “Tools“on the tool bar on top right, and click “General Options...” on the drop-down menu appearing. A Save dialog box will appear. Key-in a password on the box under “File Sharing Option”, “Password to open.” A Confirm Password dialog box will appear, key-in the same password. The file saved would only be opened if the password so determined would be keyed-in. << [8] Jurisprudence in Cyberspace

unpleasant and annoying has jumped from 70% last June to 77% now. At this point, 86% of ernail users report some level of distress caused by spam." [11 Admittedly, legislation alone cannot stem the flood of spam in electronic mailboxes. "There's no silver bullet," Roger Dean, founder of EEMA, told ElectricNews.Net. "The solution is a combination of legislation, technology and educated users." [ 12 ] Anti-spam law in the Philippines? The spam issue in the Philippines is almost insignificant because the number of Filipinos hooked up to the Internet is sparse compared to other countries. Nevertheless, the Philippine government should also take up arms against spam in order to alleviate any cost that businesses and individuals may bear as a result of the malpractice. It is preferable if Congress adopts an opt-in policy. Generally, spams that clogged the end-user's inbox are unwanted and to make the reception of spams automatic will only give the spammer the freedom to send one message after another should the recipient opt to unsubscribe. This defeats the purpose of the law which was to save the end-user cost and time. The possibility that the end-user will spend more time unsubscribing to the spams should be avoided. Another advantage of an opt-in policy is that it can minimize the possibility of a minor's exposure to adult materials because majority of spams sent are pornographic. Sparnmers must provide true addresses to which the recipients will be able to send their refusal to receive any further spam. This is to make sure that the end-user is not robbed of his right to make a choice. If an unscrupulous spammer provides a false address, the end-user will be forced to bear the continual reception of message he no longer wants.

Those two features of an anti-spam measure are most relevant for now.
Endnotes 1. Southwick, Scott and Falk, J.D.(1998). The Net Abuse FAQ. Retrieved on 31 March 2004. http:// www.cybernothing.org/faqs/net-abusefaq.html 2. Barton, Lindsay. Spain. Retrieved on 2 April 2004, from Australian Government: National Office for the Information Economy. http:// www.noie.gov.au/projects/confidence/ Improving/spam.htm 3. Studies Find More Spam Leaves Bad Taste In Inboxes(30 March 2004). Retrieved on 2 April 2004 from WBALChannel.com http:// w w w. t h e w b a l c h a n n e l . c o m / n e w s / 2961291/detail.html 4. The Problem. Retrieved on 2 April 2004 from CAUSE Coalition Against Unsolicited Commercial E-mail http:// www.cauce.org/about/problem.shtml 5. Ibid. 6. Junk e-mail runs rampant despite Can Spam Act (25 March 2004) Retrieved on 2 April 2004, from Yahoo! News http:// story.news.yahoo com/ news?tmpl=story&cid=711&ncid=711&e=2&u=/ usatoday/ 20040325/tc_usatoday/ junkemailrunsrampantdespitecanspanract 7. Carter, Richard (27 January 2004). No 'silver bullet' for the monster of junk email. Retrieved on 2 April 2004 from EUobserver. http:// w w w. e u o b s e r v e r. c o m / index.phtml?aid=14227 8. Williams, Martin (15 September 2003) Spam falls after South Korea strengthens e-mail law. Retrieved on 29 March 2004, from InfoWorld. http:// www.infoworld.com/article/03/09/15/ HNkoreaspam_1.html 9. Perrone, Jane (24 July 2003). Australia Tries to Can Spam. Retrieved on 29 March 2004 from Guardian Unlimited. http://www.guardian.co.uk/online/ spam/story/0,13427,1005158,00.html 10. AFP (22 March 2004). Asian countries join US-led coalition against spa,. Retrieved on 2 April 2004 from smh.com.au. http://www.smh.com.au/ a r t i c l e s / 2 0 0 4 / 0 3 / 2 2 / 1079823278794.html 11. Sinrod, Eric J. (25 March 2004). Junk email runs rampant despite CAN-Spam Act. Retrieved on 2 April 2004 from USATODAY.com. http:// www.usatoday.com/tech/columnist/ ericjsinrod/2004-03-25-sinrod_x.htm 12. Clark, Mathew (5 November 2003). No silver bullet for spam, says expert. Retrieved on 2 April 2004 from electricnews.net. http://www.enn.ie/ news.html?code=9380566

2.

3. 4.

5. 6.

condition for the admission of documents. xxx xxx xxx

Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. xxx xxx xxx

Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBM's computer system or the data stored in the system were not and/or could not have been tampered with before the some were printed out. xxxx"

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LegalWeb

LAWPHIL.NET: A STEP IN THE RIGHT DIRECTION
by Carlyn Marie Bernadette C. Ocampo-Guerrero and Michael Vernon M. Guerrero

L
The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

(This section is a continuing series of articles featuring various websites which may be relevant to legal practitioners, legal researchers, and law students.)

awphil is a legal web site project of Arellano Law Foundation thru its Information Technology Center. Arellano Law Foundation is a non-stock non-profit institution specializing in legal education. Realizing the essence of making the law accessible and understandable not only to the legal community but to all sectors of society, the Foundation has embarked to digitize and make available through the Internet all Philippine laws, statutes, jurisprudence, presidential decrees, executive orders, administrative orders, lawyers' tools and other legal materials. Hence, the LawPhil Project of the Arellano Law Foundation (www.lawphil.net) is one of the more ambitious projects in the legal field that have been initiated to provide law practitioners and law students with tools for legal research. It is so far the most comprehensive repository of Philippine jurisprudence and laws. Composition, structure, and look and feel The website is encoded according to HTML 4.0 standards, with javascripts, imagemaps, and standard web image files (.gif and .jpg). The website is structured in a three-panel frameset: a masthead, a navigation bar, and the main body itself. The frameset structure allows flexibility in the gradual expansion of the website. The website is composed of 11 sections: (1) the

Constitution, (2) Statutes, (3) Executive Issuances, (4) Jurisprudence, (5) Courts, (6) Administrative Agencies, (7) Congress, (8) News and Legal Updates, (9) International Law, (10) Legal Links, (11) and Lawyer's Tools. Sections 1 to 4, and 9 contain the bulk of relevant laws, treaties and jurisprudence. Sections 5 to7 are informative as to the kind of political and legal system that exists in the Philippines. The section on the "Constitution" contains all Philippine Constitutions: the Malolos, the 1935, the 1973, and the 1987 Constitutions. "Statutes" contains subsections pertaining to various kinds of statutes in different era in Philippine history - Acts, Commonwealth Acts, Republic Acts, Batas Pambansa and Presidential Decrees. "Executive Issuance" contains the subsections Executive Orders, General Orders, Memorandum Orders, and Proclamation. "Jurisprudence" contains decisions and resolutions promulgated from 1901 to 2003, as of this writing. The section on "International Law" contains the subsections Treaties, International Agreements, International Organizations, and International Courts. "Courts" contains information involving the Philippine Court System, Rules of Court, Jurisdiction, Legal Ethics, Bar Matters, Roll of Attorneys and the Integrated Bar of the Philippines; while "Administrative Agencies" contains information pertaining to the Constitutional Commissions (The Commission on Audit, Commission on Civil Service, and Commission on Elections), the National Commissions

(Commission on Human Rights, National Commission on Indigenous People, and the National Commission on the Filipino Language), the Office of the President, the Office of the Vice President, the various departments, the Bases Conversion Development Authority (BCDA), Social Security System (SSS), Government Service Insurance System (GSIS), Housing and Land Use Regulatory Board, Housing and Urban Development Coordinating Council, Pag-IBIG Fund, CareerExecutive Service Board, Local Water Utilities Administration, National Commission for Culture and the Arts, National Youth Commission (NYC), Professional Regulation Commission, and Bangko Sentral ng Pilipinas. The section on "Congress" includes the directory, officers and committees and the rules of both the Senate and the House of Representatives. "News and Legal Updates" includes Legal News, Current Issues, Latest Laws, and Latest Supreme Court Decisions; while "Legal links" includes subsections on General Legal Resources, Online Law Libraries, Online Publications, Government Resources, General Resources, and International Resources. Lastly, the section on "Lawyers' Tools" includes Legal Forms, Legal Dictionaries, and Miscellaneous items. The website's look and feel corresponds to the familiar online experience one acquires when browsing through the central repository of Supreme Court issuances, the Philippine Supreme Court website (www.supremecourt.gov.ph).

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

Development The development of the site is clearly one that is aggressive and distributed. It is aggressive in such a way that the site has at least 41,400 site elements by October 2003, a leap from 21,700 site elements existing March 2003, or a 198 percent increase in site content for a period of only seven months. It is distributed as additional content is being generated to include more recent laws, jurisprudence, etc. without compromising the inclusion of older laws, jurisprudence, etc. which have not been previously included in the repository. It is likely that the inclusion of older laws and jurisprudence, promulgate for a span of a hundred years would be completed within a couple of years or so, considering the pace of development as to the consolidation of legal content. Surfers' comments "The site is user-friendly. The main page readily shows the laws that have been recently passed, as well as the current legal issues. There is a search tool which I can use to locate certain issues or topics. The scroll bars on the left side of the page which include the Constitution, statutes, executive issuances, jurisprudence, courts, administrative agencies, congress, news and legal updates, International law, legal links and lawyer's tools, encompass various subject matters, though not as comprehensive as a well-known CD based research tool, in general. As to the design, it is simple yet appealing, specially the photos that are captured on the front page. Lawphil.net, as a whole, is a helpful and easy access research tool which will definitely be of use to me as I hurdle my remaining years in law school." MI "The site is a step in the right direction, considering that the website provides the ordinary surfer a whole range of legal resources, without fees, and thus provides a means to avoid the invocation of 'ignorantia legis non

excusat.' It is a concrete step of bringing the law to the people. Still, by way of providing unsolicited advise, the search tool may be a feature that needs to be improved on, to highlight the words being looked up (although this is available through The homepage of the LawPHil Project (http://www.lawphil.net). the use of the site's The website was launched in year 2000. cached pages in a very popular search engine, have now as a "modern justice system". but the starting point resulting to this "In the Philippines, one of the kind of search right now is through the forerunners of "cyber-legal search engine and not the website), information dissemination" is the or to find cases corresponding to the Lawphil.net. Among all of the available proprietary citations of case local websites concerned with the same compilations of the two biggest law objectives, Lawphil has an idiosyncratic book publishers in the country, among brand of having the most updated others. Inter-linked pages, wherein materials as far as Supreme Court cases are linked to the cases and laws decisions are concerned. This positive cited are linked, are also suggested. distinction has been brought about by These, of course, after the site has the ingenious idea of its creators to start completed the incorporation of most compiling these Court decisions of the older laws and jurisprudence starting, and concentrating more, from into the website." -RS the more recent rulings, while striving, in equal pace, to complete the files of "Quite inconspicuously, with the advent the earlier ones. This is just a brilliant of the computer age, the endeavors way to start establishing the site for after involved in the justice system took an all, only subsequent rulings supersede abrupt giant leap from manual to the rest. Lawphil's layout is just mechanical. The justice system as systematic and user-friendly. Even firstunderstood five (5) years ago or so is timers find using it orderly and very much different from how it is now. comprehensible. Laws and statutes The element which greatly affected this updates and segments on current legal change is the birth of cyber-legal issues are very instructive and research tools which are made readily enlightening. available in just a click of the mouse. With the proliferation of these research "The publication and distribution of tools, the quality of legal services that legal information, in forms of laws, lawyers cater to litigants, the quality of jurisprudence and legal opinions, etc., the decisions promulgated by courts, (local or global), generated by Lawphil the legal knowledge of the "laymen" has rendered the maxim "ignorantia (litigant or otherwise); and the legal legis neminem excusat" almost moot research methods for public or private and academic, at least as far as those consumption, to name a few, have all who have comparatively usual access been significantly enhanced. With this thereto are concerned." -JL modern method, we may call what we

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The Center and the Society

DIGITAL LAW & THE IMPERATIVES OF THE E-LAW CENTER
by Jaime N. Soriano

THE BIRTH OF THE IT LAW SOCIETY
by Carlyn Marie Bernadette C. Guerrero

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 1

The global development in information technology resulting from the phenomenal convergence of computers and communications has brought about a new face and challenges in law practice and legal education. As information technology dramatically affects the way people live, it also affects in the same degree almost every aspect of existing legal systems and relationships. Needless to say, the law must be technology neutral and must always adapt to the needs of the times.

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Conduct research and studies in the field of information and communication technology as it affects the Philippine legal system including the monitoring, critique and publication of papers of global and local developments in this area.

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he information Technology Law Society (ITLS) is the support organization of the e-Law Center of the Arellano University School of Law. The Society intends to take a lead role in promoting growth and development of Cyberlaw in the country. The Society formally convened on 10 January 2004. Elected officers of the organization for 2004-2005 were: Michael Vernon M. Guerrero, president; Carlyn Marie Bernadette C. OcampoGuerrero, secretary; Ailyn L Cortez, treasurer: Charilyn A. Dee, web development head; Peter Joseph L. Fauni, publication head; Ma. Cristina A. Ramos, seminars head; and Aileen T. Forteza, advocacy head. Atty Jaime N. Soriano, Executive Director of the e-Law Center, is the organization's adviser.

Governments, international bodies, and the general public all over the world have started to prepare for this technology revolution, so to speak. Many law schools and bar associations kicked-off the formation of units dedicated to information (From left) Peter Joseph Fauni, Carlyn Marie Bernadette Ocampotechnology developments within Guerrero, Atty. Jaime Soriano, Ailyn Cortez, Michael Vernon their respective institutions. In the Guerrero, and Ma. Cristina Ramos. Philippines, much has to be desired in this area from the academic The organization is divided into four community because of its strong groups: 1 ) Web Development, 2; · Maintain the most complete, adherence to the highly conservative Research and Publication, 3) Seminars comprehensive, organized, and and traditional approach to legal and Education, and 4) Advocacy. The up-to-date information system, education. Unfortunately, the paradigm Web Development Group will be database, and library of resources shift is inevitable. involved in updating, conducting on information technology that will researches and studies in the field of cater and be accessible, not only In the light of the foregoing information technology as it affects the to the students and faculty of the imperatives, the Arellano University Philippine legal system. Research and law school, but also to researchers, School of Law caused the creation of Publication will be engaged in the policy makers and the public, in the "e-Law Center", a body, functioning publication of papers on global and general. within its organizational framework, to local developments in the field of IT take the lead within the academic circle law. Seminars and Education will be · Pursue policy initiatives and in the areas of research, policy active in organizing and holding advocacy on the development of advocacy, and legal education that lectures, trainings, seminars, Philippine law on information and addresses the developments in conferences or presentations on IT law communication technology technology law. to enable law students, faculty and including the crafting of proactive other members of the academic proposals for legislative or The Center has the following objectives: community always attuned to, and regulatory action.
>> [20] e-Law Center >> [20] IT Law Society

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