REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA EN BANC PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE

FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. G.R. No. ______________ MANRIQUE, JR., LAUREN For: Certiorari and Prohibition DADO, MARCO VITTORIA and/or Injunction(with prayTOBIAS SUMAYAO, IRENE er for issuance of Status Quo CHIA, ERASTUS NOEL T. Ante Order) DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners, - versus THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE

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DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents. x----------------------------------------x

PETITION
PETITIONERS, BY COUNSEL, before this Most Honorable Court, respectfully state: In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.1 Mr. Chief Justice Reynato S. Puno, speaking for the Court en banc, in Chavez v. Gonzales and National Telecommunications Commission, G.R. No. 168338, February 15, 2008.

1

Citations omitted. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 2 of 61

Nature of the Petition 1. This is a petition for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure which seeks to assail for being patently unconstitutional R.A. 10175, also known as the Cybercrime Prevention Act of 2012. Due to the infringement and violation of the Petitioners’ constitutional rights of privacy, freedom of expression, speech, and due process by the Respondents - who have acted with grave abuse of discretion amounting to lack or excess of jurisdiction - through the enactment and implementation of the Cybercrime Prevention Act of 2012, Petitioners have no other plain, speedy or adequate remedy in the ordinary course of law. Thus, Petitioners are constrained, in order to protect their constitutional rights, to seek relief with the Honorable Court by filing the instant petition under Rule 65 of the 1997 Rules of Civil Procedure.

2.

3.

Parties 4. The Petitioners are members of an alliance composed of users of the Internet. They have direct interest in this case, being directly affected by the provisions of the Cybercrime Prevention Act, and are filing suit in their individual capacities and as members of the Philippine Internet Freedom Alliance: a. Dakila – Philippine Collective for Modern Heroism, represented by Leni Velaso, suing in its capacity as a formally SEC-registered, Non-government Organization with company registered number CN200801612. It is a group of artists, students and individuals committed to advocating social consciousness formation through their DIGITAL ACTIVISM PROGRAM that are affected with the enactment and implementation of RA No. 10175, and whose address is at Unit 3A VS1 Building, No. 34 Kalayaan Avenue, Quezon City. b. Partido Lakas ng Masa, a Comelec-registered national political party of organized workers, farmers, urban poor, informal sector and youth and students, through its Chairperson Cesar S. Melencio, suing in its capacity as an internet user for articulation of these marginalized sectors’ rights, campaigns and advocacies, (http://www.masa.ph/;
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http://partidolakasngmasa. blogspot.com/; http://www.youtube.com/user/plmphilippines) whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose main office addres is at 13 Rigor St., Brgy. Masagana, Quezon City. c. Francis Euston R. Acero, suing in his capacity as a: 1) social media account (twitter.com/francisacero, facebook.com/francisacero) holder and blogger (nerveending.wordpress.com) whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at No. 406 Amberland Plaza, Jade Drive, Ortigas Center, Pasig City. d. Marlon Anthony Romasanta Tonson, suing in his capacity as: 1) a lawyer specializing in media law, 2) an online journalist whose articles are posted on GMA News Online and other news sites, and 3) a social media account holder (https://www.facebook.com/marnie.tonson) whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and continuing implementation of RA No. 10175, and whose address is at 567 St. Christopher, Brookside Hills Subdivision, Cainta, Rizal. e. Teodoro A. Casiño, suing in his capacity as a: 1) internet subscriber of PLDT MyDSL, 2) website user/owner (myteddycasino.com), blogger (teddycasino.wordpress.com) and social media account (facebook.com/followteddycasino, @teddycasino) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at Unit 39 Ecoville Townhomes, bgy. Sta. Cruz, Makati City. f. Noemi Lardizabal-Dado, suing in her capacity as an: 1) internet subscriber of Globe Telecom, 2) editor for Blogwatch.ph of the Philippine Online Chronicles, a citizens’ watchdog for transparency and good governance that have diverse opinions on many issues that are quite critical of the government, and 3) social media account holder (faPetition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 4 of 61

cebook.com/noemidado, twitter.com/momblogger), whose constitutional rights are violated with the enactment and implementation of RA No. 10175 with office address at 1253 G. Araneta Avenue, Quezon City. g. Imelda Morales, suing in her capacity as an: 1) internet subscriber of Sky Internet, and 2) freelance writer, blogger (www.prinsesaimelda.blogspot.com, www.isangbata. blogspot. com) and social media account (www.facebook.com/ime.bowi) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at No. 78-C General Segundo St., Heroes Hill, Quezon City. h. James Matthew B. Miraflor, suing in his capacity as a: 1) blogger of social and political issues (http://politicsforbreakfast.net, http://politicsforbreakfast.blogspot.com) and social media account holder (http://twitter.com/jamesmiraflor, http://www.facebook.com/james.miraflor) whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at Block 49 Lot 29 Phase 3 E2, Dagat-dagatan, Malabon City. i. Juan G. M. Ragragio, suing in his capacity as a: 1) internet subscriber of BayanTel and SunCellular for mobile, and 2) blogger and freelance writer for The Philippine Online Chronicles (www.thepoc.net), an active social media account (www.twitter.com/raggster) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at No. 80 Boston St., Immaculate Concepcion, Quezon City. j. Maria Fatima A. Villena, suing in her capacity as a: 1) internet subscriber of Wi-Tribe and 2) freelance writer, blogger (http://civilsocietyact101.blogspot.com, http://joftivdelizo.wordpress.com) and social media account holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at Lot 8, Blk. 81 Eastwood Residences Phase 3, bgy. San Isidro, Rodriguez, Montalban, Rizal.
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k. Medardo M. Manrique, Jr., suing in his capacity as an: 1) internet subscriber of BayanDSL, 2) blogger/site owners (FilipinoWriter.com, PinoyFilm.com) and social media account (Twitter: filipinowriter, Facebook: filipinowriter) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at No. 6 Regidor St., Loyola Heights, Quezon City. l. Lauren Dado, suing in her capacity as a: 1) blogger (http://laurganism.com, http://iambourgeois.com) and active social media account (Twitter: darthlaurian) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose office address is at Cayetano Sebastian Ata Dado & Cruz, (Caselaw), 12th Floor, NDC Building, 116 Tordesillas Street, Salcedo Village, Makati City. m. Marco Vittorio Tobias Sumayao, suing in his capacity as an: 1) internet subscriber of PLDT, 2) blogger (worddoodling.wordpress.com; gplus.to/marcosumayao) social media account (@marcosumayao; facebook.com/marcosumayao) holder and freelance writer whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at Unit 3A Dona Rosario Bldg., 46 N. Domingo St. Cubao, Quezon City. n. Irene Chia, suing in her capacity as an: 1) internet subscriber of SkyBroadband, 2) social media account (Facebook) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at No. 260 Mabilis St., bgy. Pinyahan, Quezon City. o. Erastus Noel T. Delizo, suing in his capacity as an: 1) internet subscriber of Wi-Tribe, 2) blogger (http://rastiglobalperiscope.wordpress.com) and social media account (Facebook and Twitter) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and

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whose address is at Lot 8, Blk. 81 Eastwood Residences Phase 3, bgy. San Isidro, Rodriguez, Montalban, Rizal. p. Cristina Sarah E. Osorio, suing in her capacity as an: 1) internet subscriber of PLDT, 2) social media account (facebook: https://www.facebook.com/groups/PIFA.ph) holder and freelance writer whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at 151 Sta Rita Subdivision, Barangay San Antonio, Los Banos, Laguna 4030; q. Romeo Factolerin, suing in his capacity as a: 1) social media account (https://www.facebook.com/rom.factolerin) and freelance writer/artist/filmmaker whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at 151 Sta Rita Subdivision, Barangay San Antonio, Los Banos, Laguna 4030. r. Naomi L. Tupas, suing in her capacity as a: 1) social media account (https://www.facebook.com/CopyWritingOnline) holder and freelance writer whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at No. 825 Norma Street, Sta Mesa, Manila. s. Kenneth Keng, suing in his capacity as an: 1) internet subscriber of BayanDSL, 2) website user (filipinofreethinkers.org) and social account (FacebookKenneth Keng, Twitter- @kckeng) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at 1909 Sineguelas St. Makati Metro Manila. t. Ana Alexandra C. Castro, suing in her capacity as a: 1) social media account (facebook.com/anaalexandracastro, @alexalexcastro) holder whose constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are violated with the enactment and implementation of RA No. 10175, and whose address is at 151 Golfhill Terraces, Manotok Drive Old Balara Quezon City.

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5.

Respondent, the Executive Secretary, is the Hon. Paquito N. Ochoa, Jr., and may be served with court processes at the Office of the Executive Secretary, Malacañang Palace, Manila. Respondent, the Secretary of Justice, is the Hon. Leila S. De Lima, and may be served with court processes at the Office of the Secretary of Justice, Padre Faura Street, Manila. Respondent, the Secretary of the Interior and Local Government, is the Hon. Mar A. Roxas, and may be served with court processes at the Office of the Secretary of Interior and Local Government, E. de los Santos Avenue, Quezon City. Respondent, the Secretary of Science and Technology, is the Hon. Mario Montejo, and may be served with court processes at the DOST Building, Gen. Santos Avenue, Bicutan, Taguig City. Respondent, the Executive Director of the Information and Communications Technology Office, is Louis Napoleon C. Casambre, and may be served with court processes at the DOST Building, Gen. Santos Avenue, Bicutan, Taguig City. Respondent, the Director of the National Bureau of Investigation, is Nonnatus Caesar R. Roxas, and may be served with court processes at the NBI Building, Taft Avenue, Ermita, Manila. Respondent, the Chief of the Philippine National Police, is Director General Nicanor Bartolome, and may be served with court processes at Camp Crame, Quezon City. Respondents, the Head of the DOJ Office of Cybercrime, and the other members of the Cybercrime Investigation and Coordinating Center, may be served with court processes c/o the Department of Justice at Padre Faura St., Manila. Respondent, Speaker of the House of Representatives, is the Hon. Feliciano Belmonte, Jr., and may be served with court processes at the House of Representatives, Quezon City. Respondent, Senate President of the Senate of the Philippines, is the Hon. Juan Ponce Enrile, and may be served with court processes at the GSIS Building, Financial Center, Roxas Boulevard, Pasay City.

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7.

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Locus Standi I. The petitioners are proper parties who have personal and substantial interests in the present case and have sustained, and continue to sustain direct injury from the law’s implementation on October 3, 2012. 15. Petitioners have legal standing to file this petition as individual and juridical persons who are lawyers, Internet users, taxpayers, subscribers of Philippine telecommunications companies, bloggers, writers, artists, citizen journalists, traditional media persons with an online (Internet) presence, and concerned citizens. Upon the effectivity of the Cybercrime Prevention Act, petitioners will be subjected to unwarranted electronic surveillance twenty four (24) hours a day, seven (7) days a week that is violative of their constitutional rights to privacy, free speech, free expression and their right against unreasonable searches and seizures. Petitioners have been denied their aforementioned constitutional rights to which they are lawfully entitled, and they will be subjected to unjust penalties by reason of the effectivity of the Cybercrime Prevention Act. Furthermore, under Sec. 27 of the Cybercrime Prevention Act, there is an annual appropriation by Congress in the amount of Fifty Million Pesos (P50,000,000.00) for the implementation of the challenged law. Thus, as taxpayers, petitioners question this annual appropriation under the taxing and spending power of Congress, which passed a law stifling the constitutional rights of the petitioners. It is well-settled that for locus standi to lie, petitioners must exhibit that they have been denied, or are about to be denied, of a personal right or privilege to which they are entitled.2 This Honorable Court has likewise ruled that citizens, taxpayers, voters, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitu-

16.

17.

18.

2

Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 9 of 61

tional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.3 19. When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.4 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.5

II.

The Petition at bar involves constitutional issues of transcendental importance and represent matters of paramount public interest. 20. At the core of this petition are constitutional issues of transcendental importance, specifically the fundamental freedoms guaranteed by the Bill of Rights: a. The Cybercrime Prevention Act is an undue abridgment of the freedom of speech, expression, and of the press. b. The Cybercrime Prevention Act authorizes government to conduct an unreasonable search and seizure. c. The Cybercrime Prevention Act violates the right to privacy and the right to privacy of communication and correspondence. d. The Cybercrime Prevention Act is contrary to the guarantees of equal protection under the law.

3 4 5

David v. Gloria Macapagal-Arroyo, 522 Phil. 705 (2006). The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. No. 183591, October 14, 2008. Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 10 of 61

e. The Cybercrime Prevention Act violates public international law. f. The Cybercrime Prevention Act acts an ex post facto law. 21. The implementation of the Cybercrime Prevention Act will clog the dockets of our courts arising from a deluge of frivolous lawsuits. The constitutional issues presented likewise involve matters of paramount public interest due to the surge of internet use and social media during the last five (5) years, owing largely to the phenomenal growth of social networking sites Facebook6 and Twitter7 over the same period. The European Travel Commission, which administers the ETC New Media Trend Watch web site,8 ranked the Philippines as 17th among the top 20 internet users in the world as of first quarter of 2012 with 33.6 million users.9 According to asiancorrespondent.com,10 the Philippines, described as the “social networking capital of the world,” is one of the highest ranking countries engaged in social networking, having a significant presence on Facebook and Twitter: Social network penetration is incredibly high in the Philippines, reaching 95%. Facebook is the country’s most popular website, more so than Google, and has a penetration rate of 93.9%. The Philippines is also the eighth most popular country for Twitter use on a global scale, with a penetration rate of 16.1%. The popularity of photo sharing has increased by 46% in the country in one year, largely due to Facebook. Social networking is so popular among Filipinos, the country has been nicknamed ‘The Social Networking Capital of the World. ” 11

22.

23.

24.

6 7 8 9 10 11

http://www.facebook.com/ (last accessed October 3, 2012). https://twitter.com/ (last accessed October 3, 2012). http://www.newmediatrendwatch.com/ (last accessed October 3, 2012). http://www.newmediatrendwatch.com/regional-overview/90-asian (last accessed October 3, 2012). http://asiancorrespondent.com/ (last accessed October 3, 2012). Russell, Jon, Philippines Named Social Networking Capital of the World, http://asiancorrespondent.com/54475/philippines-named-the-social-networking-capital-ofthe-world-indonesia-malaysia-amongst-top-10 (last accessed October 3, 2012). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 11 of 61

25.

Prior to the passage of the Cybercrime Prevention Act, the Philippines was ranked sixth in the world in terms of internet freedom by the Washington-based Freedom House.12

III.

The Propriety of Judicial Review. There is an actual case or controversy due to the effectivity of the law starting October 3, 2012. Judicial notice may be taken: (1) of the fact that Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012, was signed into law on September 12, 2012; (2) the law was published in two newspapers of general circulation on September 18, 2012. Under the seminal case of Tañada v. Tuvera13, laws shall take effect fifteen days (15) days following the completion of its publication in the Official Gazette, or in two (2) newspapers of general circulation; and (3) the Cybercrime Prevention Act took effect last October 3, 2012.14 In view of the chilling effect on freedom of speech, expression, and of the press, due to the effectivity of the Cybercrime Prevention Act, from October 3, 2012 onwards, this case is now ripe for adjudication. Due to the 24 hours, 7 days a week (24/7) operation of the Internet, there arises an actual case or controversy with the new electronic surveillance provision of the law which, since the effectivity of the law starting 03 October 2012, poses a 24/7 continuing violation of petitioners’ constitutional rights, especially their rights to privacy, free speech, free expression, and their right against unreasonable searches and seizures. The constitutional issues presented are, therefore, ripe for adjudication.

A.

26.

27.

28.

12

13 14

Kelly, S., Cook, S. and Truong, M. (eds.), Freedom on the Net 2012: A Global Assessment of Internet and Digital Media, http://www.freedomhouse.org/sites/default/files/resources/FOTN%202012%20Summary% 20of%20Findings.pdf (last accessed October 4, 2012). Tañada v. Tuvera, G.R. No. 63915, December 29, 1986. Tañada v. Tuvera, G.R. No. 63915, December 29, 1986. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 12 of 61

29.

Thus, when an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.15 The act of Congress challenged in the petition at bar, Rep. Act No. 10175 is now in full force and effect. The law, as will be discussed, presents constitutional infirmities on its face. The constitutional questions are raised by the proper parties. As discussed above, the petitioners are proper parties in the petition at bar. Petitioners have legal standing to file this petition as individual and juridical persons who are Internet users, subscribers to the Internet, taxpayers, subscribers of Philippine telecommunications companies, bloggers, writers, artists, citizen journalists, traditional media persons with an online (internet) presence, and concerned citizens. To reiterate, petitioners will be subjected to unwarranted electronic surveillance twenty four (24) hours a day, seven (7) days a week that is violative of their constitutional rights to privacy, free speech, free expression and their right against unreasonable searches and seizures. The decision on the constitutional question is determinative of the case itself, and the constitutional issues of the petition at bar are the very lis mota of the case. The petition at bar was filed to question the validity of Rep. Act No. 10175, which is constitutionally infirm on its face. The decision on the constitutional questions presented is determinative of the case itself, and the constitutional questions raised, especially the rights to privacy, free speech, free expression and the right against unreasonable searches and seizures, are the very lis mota of the petition.

30.

B.

31.

C.

32.

15

The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. No. 183591, October 14, 2008. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 13 of 61

D.

The constitutional question was raised at the earliest possible opportunity. It cannot be gainsaid that judicial notice may be taken of the fact that the Cybercrime Prevention Act took effect last October 3, 2012.16 Within a fortnight, petitioners now come to seek relief from the continuing violation of their constitutional rights to privacy, free speech, free expression and their right against unreasonable searches due to the continuing electronic surveillance, especially considering the scope of digital and personal information that may be taken arbitrarily without their knowledge.

33.

34.

IV.

Amendments introduced by Congress after the filing of this Petition do not render the issues moot, because they are capable of repetition, yet evading review. Judicial notice may be taken of the legislative process in the Philippine Congress. Granting arguendo, amendments to the Cybercrime Prevention Act are introduced by Congress, such amendments will not render the issues moot, because these transgressions of our fundamental rights are capable of repetition, yet evading review.17 With the traditional practice of Congress in inserting provisions in the final draft of the law at the Bicameral Conference Committee level, which insertions were not deliberated upon in plenary nor passed through each House on three new, separate readings, these Bill of Rights violations may happen anew, considering that the President of the Philippines has publicly announced that he wants the libel provision retained in the Cybercrime Prevention Act.18

35.

36.

16 17 18

Tañada v. Tuvera, G.R. No. 63915, December 29, 1986. Southern Pacific Terminal Company v. Interstate Commerce Commission and Young, 219 U.S. 498 (1911). Patricia Denise Chu, PNoy wants libel to stay on cybercrime law, http://www.gmanetwork.com/news/story/277051/scitech/technology/pnoy-wants-libel-tostay-on-cybercrime-law (last accessed October 6, 2012). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 14 of 61

Statement of Facts 37. For the benefit of this Most Honorable Court, the facts of this case are simple: a. On September 12, 2012, after the consolidation of House Bill 5808 and Senate Bill 2796 by the Bicameral Conference Committee, President Benigno Aquino III, signed into law Republic Act No. 10175 entitled “An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and The Imposition of Penalties Therefor and For Other Purposes”.19 b. On September 18, 2012, the Government of the Republic of the Philippines published copies in two (2) newspapers of general circulation.20 c. On October 3, 2012, the Cybercrime Prevention Act took effect.21 d. Immediately after, the fear of uncertainty as to petitioners’ actual liability under the Cybercrime Prevention Act began to color petitioners’ online discussions and caused petitioners to hesitate in expressing their views, including but not limited to their political views or views of those who may be offended. e. At the same time, petitioners became wary of their communication and correspondence by way of entries into their computers, tablets, and mobile devices, knowing fully well that any thought or written statement that may enter into these devices may well be used by government agents or law enforcement authorities snooping around without warrant or probable cause. 38. Hence, this Petition.

19 20 21

Henceforth, the “Cybercrime Protection Act”. Petitioners incorporate by reference the Annexes of its co-Petitioners, including their annexes of the published copies of the Cybercrime Prevention Act. Tañada v. Tuvera, G.R. No. 63915, December 29, 1986. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 15 of 61

Discussion I. The Cybercrime Prevention Act is an undue abridgment of the freedom of speech, expression, and of the press.

39.

The Cybercrime Prevention Act defines communication as the “transmission of information through ICT media, including voice, video, and other forms of data.”22 At its heart, the Cybercrime Prevention Act, while plainly a criminal statute, penalizes thought, or in the language used by the law itself, “the transmission of information.” On its face, it is a piece of legislation that regulates, and therefore diminishes or dissuades the exercise of our most sacred constitutionally protected rights: the freedoms of speech, expression, and of the press.23 As such, the Cybercrime Prevention Act can be the subject of a facial challenge,24 and should, as early as now, be scrutinized through the equal protection clause.25 The Cybercrime Prevention Act defines cybercrime and enumerates the punishable acts described as cybercrime offenses including among others, cybersex and libel:26 Cybersex – The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration. xxx (4) Libel – The unlawful or prohibited acts of libel as defined in Article 355 of the

40.

22

23 24 25 26

An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties Therefor and for other Purposes [CYBERCRIME PREVENTION ACT OF 2012], Republic Act No. 10175, § 3 (c). CONST., art. III, § 4. Southern Hemisphere Engagement Network Inc., et al., v. Anti-Terrorism Council, et al., G.R. No. 178552, October 5, 2010. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). CYBERCRIME PREVENTION ACT OF 2012, § 4(c)(1), 4(c)(4). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 16 of 61

Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

41.

The Cybercrime Prevention Act refers to all existing laws with penal provisions and if violations thereof were committed by, through, and with the use of information and communications technologies, higher penalties will be imposed: SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

42.

Under the Cybercrime Prevention Act, a prosecution under it shall be “without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws”:27 SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

43.

The Cybercrime Prevention Act grants the National Bureau of Investigation and the Philippine National Police with the authority to engage in warrantless seizures of a wide range of information and to conduct electronic surveillance of non-content or traffic data in all telecommunications facilities without the benefit of a search warrant: SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or

27

CYBERCRIME PREVENTION ACT OF 2012, § 7. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 17 of 61

record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

44.

The term “traffic data” refers to “any computer data other than the content of the communication, including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.” As such, the term includes information on the identity of the person sending or receiving computer data.28 Finally, Section 19 authorizes the Department of Justice to issue an order to restrict or block access to any content upon a prima facie showing that the same is in violation of the provision of the Act: SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.”

45.

A.

The Cybercrime Prevention Act infringes on freedom of speech. Several provisions of The Cybercrime Prevention Act violate the constitutionally protected freedom of expression, as well as the constitutional imperative for “the balanced flow of information” pursuant to “a policy environment that respects freedom of speech and of the press.” These also violate international law treaties and conventions to which the Philippines is a State Party signatory. The United Nations Human Rights Council has this year affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice,” and has recognized “the global and open nature of the In-

46.

47.

28

CYBERCRIME PREVENTION ACT OF 2012, § 3(p). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 18 of 61

ternet as a driving force in accelerating progress towards development in its various forms.”29 48. Section 4 of Article III of the 1987 Constitution provides: SEC. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 49. This Honorable Court has identified freedom of expression with the right to “a full discussion of public affairs,”30 citing favorably John Milton’s call for “the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”31 The freedom of expression makes possible “a full and free discussion of all affairs of public interest,” allowing for “comment upon the administration of Government as well as the conduct of public men.”32 The “marketplace of ideas” comes from the view of Justice Holmes “that the ultimate good desired is better reached by free trade in ideas, — that the best test of truth is the power of the thought to get itself accepted in the competition of the market;

50.

29

The promotion, protection and enjoyment of human rights on the Internet, GE.12-14710, U.N. Doc. A/HRC/20/L.13 (2012). The pertinent portions provide:
1. Affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights; Recognizes the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms; Calls upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries; Encourages special procedures to take these issues into account within their existing mandates, as applicable; Decides to continue its consideration of the promotion, protection and enjoyment of human rights, including the right to freedom of expression, on the Internet and in other technologies, as well as of how the Internet can be an important tool for development and for exercising human rights, in accordance with its programme of work.

2. 3.

4. 5.

30 31 32

In Re: Arsenio Gonzalez. Arsenio Gonzalez v. Commission on Elections, GR L-27833, April 18, 1969, footnote 14, citing U.S. v. Bustos 37 Phil. 731, 740 (1918). Id., citing Planas v. Gil, 67 Phil. 61, 81 (1939). Id. citing U.S. v. Perfecto, 43 Phil. 58, 62 (1922). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 19 of 61

and that truth is the only ground upon which their wishes safely can be carried out.”33 51. The “chilling” of free speech does not require the imposition of prior restraint. It is enough that speech be overly cautious and too guarded, shackled by self-censorship due to fear of subsequent punishment from the powerful that may be offended. Provisions of the Cybercrime Prevention Law which violate free expression are Section 4 (c) as regards “Content-related” cybercrime offenses, Section 5 (a) as regards “Aiding and Abetting the Commission of Cybercrime,” Section 12 as regards “Real-Time Collection of Traffic Data,” and Section 15 as regards “Search, Seizure and Examination of Computer Data.” Any regulation by the state of the content of speech comes before the courts with the heavy burden of presumption of unconstitutionality. With the sole exception of subparagraph (2) –in relation to Republic Act No. 9775 or the Anti-Child Pornography Act of 2009 – Section 4(c), The Cybercrime Prevention Act does not overturn that presumption. Content-related cybercrimes designated in The Cybercrime Prevention Act as “cybersex” and “unsolicited commercial electronic communication” are not included in the Budapest Convention on Cybercrime.34 As for Section 4(c)(3)(iii)(cc),35 the prohibition against unsolicited commercial electronic communication – more commonly known online as “spamming” – would not apply as long as “[t]he commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.”36 Whether the purpose of the message sender is to mislead or whether any part of the message does induce the recipients to read the unsolicited message pertain to the psychological states of

52.

53.

54.

55.

56.

33 34

35

36

Abrams v. United States, 250 US 616, 630 (1919). Budapest Convention on Cybercrime, (CETS 185); See Interpellation of Senator Defensor Santiago, Session No. 17, JOURNAL OF THE PHILIPPINE SENATE (Fifteenth Congress, Second Regular Session), 275 at 278-279 (12 September 2011). See An Act to Prohibit and Penalize Wire Tapping and other Related Violations of the Privacy of Communication, and for other Purposes, Republic Act No. 4200, § 3. This is where the wording was taken from and put into Section 4(c)(3)(iii) of the Cybercrime Prevention Act. See also Defensor Santiago Amendments, Session No. 46, JOURNAL OF THE PHILIPPINE SENATE (Fifteenth Congress, Second Regular Session), 878 at 879 (24 January 2012); Interpellation of Senator Defensor Santiago, 275, at 279 (12 September 2011). Emphasis supplied. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 20 of 61

mind of the persons involved. In other words, determining the motive to mislead or the inducement to read will be subjective at best, or at the least fanciful. B. The Cybercrime Prevention Act is constitutionally infirm on its face for being vague and overbroad.

57.

Section 4 (c)(1) defines “Cybersex” as “[t]he willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.” Section 5 punishes aiding and abetting the commission of cybersex, and attempting to commit cybersex. The term “Cybersex” is vague because it defines all forms of sexual activity on the internet as “lascivious exhibition of sexual organs or sexual activity,” without exception. In other words, the law makes no distinction on what is obscene and what is merely indecent. The definition of “cybersex” under Section 4(c)(1) is vague enough to hold as criminally liable even legal spouses as consenting adults for engaging in “lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.” But this same definition would not cover the lascivious exhibition of buttocks or female breasts, whether naked or scantily clad, whether the ones who possessed these body parts knew they were being exhibited online. A statute is vague if a person of ordinary intelligence cannot determine what types of persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law.37 The law will therefore be stricken down as unconstitutionally vague. Under current jurisprudence, it is only obscenity that is not absolutely covered by the protection on free expression;38 mere inde-

58.

59.

60.

37 38

David v. Macapagal-Arroyo, G.R. No. 171936, May 3, 2006, citing Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967. Soriano v. Laguardia, G.R. No. 164785, April 29, 2009. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 21 of 61

cency, which is included in the “Cybersex” definition, is still protected expression.39 61. In Miller v. California,40 the U.S. Supreme Court adopted the following standards, referred to as the Obscenity Test: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Thus, the interpretation of “Cybersex” includes the punishment of “lascivious exhibition of sexual organs or sexual activity” even in commercially available cinematic films which feature adult subject matter. The provision likewise punishes artistic, literary or scientific material, and even instructional material for married couples that would otherwise constitute protected speech or expression. In Reno v. American Civil Liberties Union,41 the U.S. Court struck down the Communications Decency Act (CDA) passed by Congress for being unconstitutionally vague because the law lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.42 That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.43 In evaluating the free speech rights of adults, the Court makes it perfectly clear that “[s]exual expression which is indecent but not obscene is protected by the First Amendment.”44 In Reno, the Court held that the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.45

62.

63.

64.

39 40 41 42 43 44 45

FCC v. Pacifica Foundation, 438 U.S. 726 (1978). 413 U.S. 15 (1973). 521 U.S. 844 (1997). Reno, 521 U.S. 844 (1997). Reno, 521 U.S. 844 (1997). Reno, 521 U.S. 844 (1997). Reno, 521 U.S. 844 (1997). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 22 of 61

65.

Section 4(c)(4) defines “Libel” as “[t]he unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”46 Section 5 punishes aiding and abetting the commission of the cybercrime of libel, and attempting to commit the cybercrime of libel.47 The definition of “Libel” is overbroad because the acts punished in the Cybercrime Prevention Act include the legitimate exercise of free speech rights, where in many instances, a person’s unsolicited speech runs counter to the recipient’s own opinion, or appreciation of the same issues. The Government cannot ban unprotected speech under Section 4 (c)(4) if a substantial amount of protected speech is prohibited or chilled in the process. In Ashcroft v. Free Speech Coalition,48 the Child Pornography Prevention Act (CPPA) of 1996 was unconstitutionally overbroad because the Government may not suppress lawful speech as the means to suppress unlawful speech: Protected speech does not become unprotected merely because it resembles the latter. (Id.) The Constitution requires the reverse. “[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.

66.

67.

68.

The Bicameral Conference Committee inserted the following new section in the law,49 without having it debated and discussed in plenary sessions back at the Senate and the House of Representatives: SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be im-

46 47 48 49

CYBERCRIME PREVENTION ACT OF 2012, § 4(c)(4). CYBERCRIME PREVENTION ACT OF 2012, § 5. 535 U.S. 234 (2002). Joint Explanation of the Conference Committee on the Disagreeing Provisions of Senate Bill No. 2796 and House Bill No. 5808, Session No. 63, JOURNAL OF THE PHILIPPINE SENATE (Fifteenth Congress, Second Regular Session), 1323 at 1324 (5 June 2012). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 23 of 61

posed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. 69. This section is unconstitutional for two reasons: (1) it is overly broad in “upgrading” all crimes as long as these are “committed by, through and with the use of information and communications technologies,” in effect an omnibus amendment which is not covered by the title and scope of the bill, and (2) this “omnibus amendment” of the Revised Penal Code, as amended, as well as special laws, was never the subject of plenary debates in Congress and much less discussed in public hearings. The long title of the Cybercrime Prevention Act is “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES.” As such, even the title’s expansive clause (“and for other purposes”) pertains only to defining, preventing, investigating, and suppressing cybercrime. However, Sec. 6 of the law does not actually define any cybercrime but rather makes as an aggravating circumstance the “use of information and communications technologies” in the commission of ordinary crimes. Even then, Sec. 6 creates a general aggravating circumstance which merely increases the penalty, and not even a qualifying aggravating circumstance which changes the nature of the crime. In contrast, the other three sections under Chapter II of the law regarding “Punishable Acts” do define what constitutes a cybercrime and how the Cybercrimes Prevention Act relates to the prosecution of other related crimes under the Revised Penal Code. Cybercrime Prevention Act contradicts Constitutional mandate for balanced flow of information under policy respecting freedom of speech and of the press.

70.

71.

72.

C.

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 24 of 61

73.

In a deliberative democracy, where the sovereign people participate in the life of the nation and take interest in the running of government, the more speech is made easily available to the most people, the better.50 The Philippine Constitution recognizes and promotes communication structures suitable for deliberative discourse of Filipinos. Section 10 of Article XVI of the 1987 Constitution provides: SEC. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. 51

74.

75.

The Cybercrime Prevention Act, however, would disrupt the policy environment in accordance with the freedom of speech and of the press for the balanced flow of information within the Philippines via the internet. The United Nations Human Rights Council, through its Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has pointed out that “[t]he Internet, as a medium by which the right to freedom of expression can be exercised, can only serve its purpose if States assume their commitment to develop effective policies to attain universal access to the Internet. Without concrete policies and has elucidated just last year the general principles on the right to freedom of expression and the Internet.”52 The Special Rapporteur has elucidated further: Very few if any developments in information technologies have had such a revolutionary effect as the creation of the Internet. Unlike any other medium of communication, such as radio, television and printed

76.

77.

50 51 52

See Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J. concurring); Cohen v. California, 403 U.S. 15, 24 (1971); Reno v. A.C.L.U., 521 U.S. 844, 874-82 (1996). Emphasis supplied. Report submitted to the U.N. Human Rights Council by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, pursuant to Human Rights Council resolution 7/36 (May 16, 2011), A/HRC/17/27. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 25 of 61

publications based on one-way transmission of information, the Internet represents a significant leap forward as an interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms that facilitate participatory information sharing and collaboration in the creation of content, individuals are no longer passive recipients, but also active publishers of information. Such platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information.53 Furthermore, producers of traditional media can also use the Internet to greatly expand their audiences at nominal cost. More generally, by enabling individuals to exchange information and ideas instantaneously and inexpensively across national borders, the Internet allows access to information and knowledge that was previously unattainable. This, in turn, contributes to the discovery of the truth and progress of society as a whole. Indeed, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. xxx The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and ex53

Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 26 of 61

pression, the Internet also facilitates the realization of a range of other human rights. The vast potential and benefits of the Internet are rooted in its unique characteristics, such as its speed, worldwide reach and relative anonymity. At the same time, these distinctive features of the Internet that enable individuals to disseminate information in “real time” and to mobilize people has also created fear amongst Governments and the powerful. This has led to increased restrictions on the Internet through the use of increasingly sophisticated technologies to block content, monitor and identify activists and critics, criminalization of legitimate expression, and adoption of restrictive legislation to justify such measures. II. The Cybercrime Prevention Act of 2012 (the Cybercrime Prevention Act) authorizes government to conduct an unreasonable search and seizure. 78. Sections 12 and 19 of Republic Act No. 10175 are contrary to the petitioners’ constitutional right against unreasonable searches and seizures.

A. Section 12 grants unto the government the power to conduct warrantless electronic surveillance. 79. Section 12 provides for the real-time collection of traffic data by “law enforcement authorities,” namely the Philippine National Police, the National Bureau of Investigation and the Department of Justice. The law enforcement officers “with due cause” shall be “authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.”54

54

CYBERCRIME PREVENTION ACT OF 2012, § 12. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 27 of 61

80.

Section 3 (p) of the Cybercrime Prevention Act defines traffic data as “any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.”55 Traffic data therefore contains, at least, the private Internet Protocol (IP) address of each person or subscriber. An Internet Protocol is the telecommunications protocol used for relaying information packets across the Internet. It is the principal protocol that establishes the Internet in cyberspace. The Internet is simply a system of interconnected networks; it is an elaborate computer network connecting with other computer networks by using gateways to provide a method of routing information packets between these networks. It is unified by a protocol standard known as the Internet Protocol Suite, or Transmission Control Protocol/Internet Protocol (TCP/IP).56 In turn, an Internet Protocol (IP) address is a numerical tag, using as much as a 128 bit number, assigned to every electronic device, such as a smartphone, computer, printer or other mobile device connected to the Internet. An IP address has two functions: (1) as host or network interface identification; and (2) as location address.57 The traffic data also includes information on a person’s actual identity, his network interface identity, and his location, which under current technology available can be revealed on Google and other Internet search engines, and may be subject to electronic surveillance in real-time using the Global Positioning Satellite (GPS) System. In other words, by traffic data alone, the government can now identify a person’s identity, location, and social network. Petitioners at bar, as private citizens, have computers and electronic devices on their persons and in their respective private homes, and all of them, without exception, carry at all times a mobile device that can be subject to continuing warrantless electronic surveillance, with location and identity information made available to the government, twenty four (24) hours a day, seven (7) days a week (24/7). In other words, all the petitioners, and all individuals living or residing in the Republic of the Philippines

81.

82.

83.

55 56

57

CYBERCRIME PREVENTION ACT OF 2012, § 12. Margaret Rouse, IP address (Internet Protocol Address), at http://searchunifiedcommunications.techtarget.com/definition/Internet-Protocol (last accessed October 6, 2012). Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 28 of 61

are now vulnerable to a 24/7 warrantless electronic surveillance, without probable cause. 84. The danger here is that the phrase, “with due cause”, is not the standard of probable cause guaranteed by the Constitution, because it is the law enforcement officers, and not the courts, who will determine what constitutes “due cause.” Ostensibly, the purpose of the government in setting the standard as “due cause” is precisely because there is no probable cause as contemplated by the Constitution. In other words, government is now allowed to collect data in the manner of a fishing expedition to pin a person for a crime, even in the total absence of probable cause. Such fishing expeditions run contrary to the guarantee of a judicial determination of probable cause in searches and seizures as they are circumventions of the exclusionary rule.58

85.

B. Section 19 authorizes government to make an invalid seizure of one’s data. 86. Section 19 refers to the restricting or blocking of access to computer data. It provides that “when a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.”59 Section 19 is invalid because it authorizes the Department of Justice, by mere prima facie evidence, to issue an order to restrict or block access to such computer data without obtaining a court order. Section 19 gives the Department of Justice a power properly reposed to the judicial branch to determine, based on the probable cause standard, to issue an order to restrict or block access to computer data. Under Section 19, the law validates the “interception” of data if done by government (which is a punishable cybercrime if committed by private individuals or entities for “illegal interception” in Section 4 [a][2]). The Cybercrime Prevention Act defines “Interception” as : [L]istening to, recording, monitoring or surveillance of the content of
58 59

87.

88.

Quando aliquid prohibitur ex directo, prohibitur et per obliquum. Binalay v. Lelina, A.M. No. RTJ-08-2132, July 31, 2009. CYBERCRIME PREVENTION ACT OF 2012, § 19. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 29 of 61

communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.” (Underscoring supplied).60 89. Furthermore, these sections authorize the gathering, mining and harvesting of online data, and a 24/7 electronic surveillance of all Filipinos without the determination of probable cause, and may be resorted to without a search warrant or court order. The law legitimizes indiscriminate and arbitrary warrantless search through warrantless electronic surveillance without satisfying the probable cause standard. This is reinforced by the law’s definition of “Interception” which covers listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring. In Katz v. United States,61 petitioner Katz was convicted of transmitting wagering information by telephone across different U.S. states contrary to U.S. Federal law. Agents of the Federal Bureau of Investigation (FBI) attached an electronic listening and recording device outside the telephone booth where the calls were made. From the evidence gathered by the FBI, namely the conversations of Katz obtained through electronic surveillance and eavesdropping, the U.S. District Court convicted Katz and the U.S. Court of Appeals affirmed the conviction of the lower court holding that there was no constitutional violation of the right against unreasonable searches and seizure since there was no physical entrance into the area occupied by Katz. The U.S. Supreme Court in Katz reversed the Court of Appeals and ruled that the electronic surveillance conducted by the FBI agents was an unconstitutional search and therefore required a search warrant. The Court held: [I]t is clear that this surveillance was so narrowly circumscribed that a duly author60 61

90.

91.

CYBERCRIME PREVENTION ACT OF 2012, § 3 (m). 389 U.S. 347 (1967). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 30 of 61

ized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place.62 92. In United States v. United States District Court,63 it was held that the right against unreasonable searches and seizures “contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised.”64 The High Court further defined the role which the judiciary plays in ensuring the protection of the people’s constitutional rights in this manner: This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. xxx A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in postsurveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur. 93. In Kyllo v. United States,65 the U.S. Supreme Court held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person’s home was a “search” and therefore required a search warrant. In this case, Danny Kyllo was convicted of growing marijuana in his home by the trial court, which judgment was affirmed by the U.S. Court of

62 63 64 65

Katz, 389 U.S. 347 (1967). 407 U.S. 297 (1972). United States District Court, 407 U.S. 297 (1972). Kyllo, 533 U.S. 27 (2001). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 31 of 61

Appeals. In reversing the decision of the Court of Appeals, the High Court ruled that “[w]here the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant.” 94. In United States v. Antoine Jones,66 decided on January 23, 2012, the U.S. Supreme Court held that the Government’s attachment of a Global Positioning System (GPS) device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search contrary to the right against unreasonable searches and seizures.

III.

The Cybercrime Prevention Act violates the constitutional right to privacy and the right to privacy of communication and correspondence. Sections 12 and 19 of the Cybercrime Prevention Act are repugnant to the constitutional right to privacy in general, and the right to privacy of communication and correspondence, including the right to informational privacy. Petitioners at bar, as private citizens, have a reasonable expectation of privacy while using their computers and mobile devices, and navigating on the Internet. Petitioners conform to the twofold reasonable expectation of privacy test propounded by Justice Harlan in Katz v. United States,67 not just on their persons, but also on the information or data which they upload or encode on the Internet: As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (sub-

95.

96.

66 67

No. 10-1259, January 23, 2012. Katz, 389 U.S. 347 (1967). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 32 of 61

jective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus, a man”s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected,” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.68 97. First, petitioners have an actual expectation of privacy when using their computers at their private homes; and society is prepared to recognize home computer use as reasonable. In addition, petitioners have a reasonable expectation of privacy when accessing web sites that limit entry through the use of coded passwords; and society is prepared to recognize the right of petitioners to access these web sites that allow entry only to those who have subscribed accounts and coded passwords. Thus, Mr. Justice Harlan summarized Katz in this manner: “(a) that an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that an invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.”69 This ruling adopting the two-tiered reasonable expectation of privacy test has likewise been upheld in the subsequent cases of Kyllo,70 and Antoine Jones.71

98.

99.

68 69 70 71

Katz, 389 U.S. 347 (1967). Katz, 389 U.S. 347 (1967). Kyllo, 533 U.S. 27 (2001). Jones, No. 10-1259, January 23, 2012. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 33 of 61

A. The Cybercrime Prevention Act of 2012 (the Cybercrime Prevention Act) violates the right to privacy. 100. As explained by Chief Justice Reynato Puno, “this right is entrenched in Article III of the 1987 Constitution of the Philippines which contains the Bill of Rights.”72 Specifically, these rights are provided in Section 2 of Article III of the 1987 Constitution which provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable…” This is also embedded in Section 3(1) of Article III the Constitution which states that the “privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.” In Morfe v. Mutuc73, the Honorable Supreme Court specifically recognized the right to privacy and held: “[t]he constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.”74 The Supreme Court considered this right so important that it enacted the Rule on the Writ of Habeas Data. As explained by Chief Justice Puno, “the writ of habeas data finds its justification on the right to privacy.”75 He has also stated that “the writ of habeas data was promulgated to protect the right to informational privacy.”76 As such, it cannot be denied that the constitutional right to privacy is well-entrenched in the Philippine jurisdiction. Despite this, however, the Cybercrime Prevention Act’s provisions would violate this right. Section 12 of the Cybercrime Prevention Act provides that law enforcement authorities, “with due cause, shall be authorized, to

101.

102.

103.

104.

72

73 74 75

76

Chief Justice Reynato Puno, The Common Right to Privacy, delivered before the forum on The Writ of Habeas Data and Human Rights, sponsored by the National Union of People’s Lawyers on March 12, 2008 at the Innotech Seminar Hall, Commonwealth Ave. Quezon City. G.R. No. L-20387. January 31, 1968. Id. Chief Justice Reynato Puno, The Common Right to Privacy, delivered before the forum on The Writ of Habeas Data and Human Rights, sponsored by the National Union of People’s Lawyers on March 12, 2008 at the Innotech Seminar Hall, Commonwealth Ave. Quezon City. Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 34 of 61

collect or record by technical or electronic means traffic data in real time associated with specified communications transmitted by means of a computer system.” 105. Section 13 of the Cybercrime Prevention Act then authorizes law enforcement authorities to order the preservation of the integrity of traffic data and subscriber information relating to communication services for a minimum period of six months, which can be extended for another six months.77 These provisions authorize law enforcement authorities to collect or record by technical or electronic means traffic data even though traffic data is private and personal information which belongs to the Internet user. Such personal data cannot simply be recorded or collected by the authorities at their whim without proper authorization or permission from the courts or the Internet user. The Constitution and jurisprudence do not permit such acts. These are therefore violations of the right to privacy. Jurisprudence is consistent in disallowing any violations of this right especially in the context of taking of personal data from computers as it would also be a violation of the constitutional prohibition against unreasonable searches and seizures. In fact, the Supreme Court, in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila,78 specifically disallowed the admission of evidence taken from the personal computer of a clerk of court without the clerk of court’s authorization because it was a violation of the right against unreasonable search and seizure. The right to privacy was likewise invoked by the respondent in that case. In Ilusorio v. Bildner,79 the Supreme Court even went to the extent of disallowing unauthorized visitation rights because it would be a violation of a person’s right to privacy, to wit: With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights against his free choice. Otherwise, he will be deprived of his right to privacy. Needless to say, this will run against his fundamental
77 78 79

106.

107.

108.

109.

See generally, Sec. 13, R.A. 10175. A.M. No. P-08-2519, November 19, 2008. G.R. No. 139789, May 12, 2000. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 35 of 61

constitutional plied). 110.

right. (Underscoring

sup-

More importantly, in the seminal and similar case of Ople v. Torres,80 the Supreme Court found an Administrative Order void because its system of collecting and encoding of data for a national ID system violated the right to privacy: The essence of privacy is the right to be let alone. The right to privacy is recognized and enshrined in several provisions of the Constitution. Zones of privacy are likewise recognized and protected in our laws. Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A. O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. What is not arguable is the broadness, the vagueness, the overbreath of A. O. No. 308 which if implemented will put our people's right to privacy in clear and present danger. (Underscoring supplied).

111.

In that same case, the Supreme Court also expounded on the concept of the reasonableness of a person’s expectation of privacy when it comes to computer data that was to be collected by the authorities: The reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. The factual circumstances of the case determines the reasonableness of the expectation. However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation. The use of biometrics and

80

G.R. No. 127685, July 23, 1998. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 36 of 61

computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. As technology advances, the level of reasonably expected privacy decreases. The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. The security of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions. (Underscoring supplied). 112. Applied here, it is likewise clear that Sections 12 and 13 of the Cybercrime Prevention Act are so widely drawn that no standard for a reasonable expectation of privacy can be inferred from its provisions as well. After all, Internet users reasonably expect that their traffic data, secured on private servers, are to be kept private. They all use passwords and possess firewalls in their computers or servers precisely to secure such data. Yet the Cybercrime Prevention Act would negate that by authorizing law enforcement authorities to collect traffic data based on their own determination of cause. This, certainly, is a violation of the right to privacy, making this law unconstitutional. It must also be pointed out that the Supreme Court, aware of the issues with regard to possible violations of the right to privacy, enacted the Rule on the Writ of Habeas Data: The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home

113.

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 37 of 61

and correspondence of the aggrieved party.81 (Underscoring supplied). 114. It would certainly be absurd then for the Honorable Court, with all due respect, to allow the Cybercrime Prevention Act to be found constitutional in light of the law’s severe violations of the right to privacy. The Cybercrime Prevention Act even goes as far as to contradict and render useless this Most Honorable Court’s Rule on the Writ of Habeas Data. Under such circumstances, the Cybercrime Prevention Act must therefore be found unconstitutional. Sections 12 and 19 of the Cybercrime Prevention Act (the Cybercrime Prevention Act) violate the right to privacy of communications and correspondence. While the Constitution permits a statutory intrusion into the privacy of communication and correspondence,82 it does not grant carte blanche authority upon Congress or a law-making body to intrude as it sees fit.83 For this reason, our laws allow for facial challenges to the law, especially when they intrude into our fundamental rights, such as the right to privacy, including the right to privacy of communication. These rights are “not there for flattery,”84 but are fundamental rights held sacrosanct by the exclusionary rule.85 As a rule, any content-based statutory intrusion into the right to privacy of communication,86 must meet the standard of strict scrutiny,87 or have its unconstitutionality affirmed.88 The constitutional right of privacy of communication is more specific than the general civil and political right to privacy, although

B.

115.

116.

81 82 83 84 85 86 87

88

Sec. 1, A.M. No. 08-1-16-SC, January 22, 2008. CONST., Article III, § 3 (1). Alejano v. Cabuay, G.R. No. 160792, August 25, 2005. Ople v. Torres, G.R. No. 127685, July 23, 1998. Ople, G.R. No. 127685, July 23, 1998; CONST., Article III, § 3 (2). CONST., Article III, § 3(1). White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, citing Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001; Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004; City of Manila v. Perfecto A.S. Laguio, Jr. et al., G.R. No. 118127, April 12, 2005; Antonio M. Serrano v. Gallant Maritime Services, Inc., et al., G.R.No. 167614, March 24, 2009. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 38 of 61

communicative privacy is subsumed in that wider fundamental privacy right. 117. The constitutional text in the Bill of Rights (1987 CONST., art. III) details communicative privacy: SEC. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. 118. In other words, any law which seeks to disregard the privacy of communication and correspondence can only do so in two instances, namely (1) upon lawful court order or (2) when public safety or public order so requires. However, the Cybercrime Prevention Act fails in this regard to put adequate safeguards. This Honorable Court has held that: “The right to privacy is a right innately cherished by all, notwithstanding the legally recognized exceptions thereto. The notion that the government can be so empowered is a cause for concern of any individual who values the right to privacy which, after all, embodies even the right to be ‘let alone’, the most comprehensive of rights and the right most valued by civilized people.”89 Thus, in the Cybercrime Prevention Act, Section 12, which allows the government to obtain the non-content data of any person online,90 and Section 19, which allows the government to shut down any communications device, both without prior notice and upon a showing only of due cause,91 constitute impermissible intrusions into the right to privacy of communication and correspondence.

119.

120.

89 90 91

Republic vs. Eugenio, Jr., 545 SCRA 384 (2008). CYBERCRIME PREVENTION ACT OF 2012, § 12. CYBERCRIME PREVENTION ACT OF 2012, § 19. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 39 of 61

Section 12 is an impermissible intrusion into the right of privacy of communication and correspondence. 121. The constitutional infirmities of Section 12, The Cybercrime Prevention Act,92 lie on two tracks. First, the traffic data to be collected without need of court order does not even have to be against public safety or order at all. Such mandate given to the Department of Justice to collect traffic data is overly broad, making no distinction other than “the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.” To reiterate, the constitutionally mandated exception in this regard is “when public safety or order requires,” which is conspicuously absent in the wording of the Cybercrime Prevention Act. Secondly, the only other ground to lift the mantle of constitutional protection of communicative privacy is “upon lawful order of the court” but Sec. 12, The Cybercrime Prevention Act goes beyond and redefines – contrary to established jurisprudence – the duty of the court to find probable cause before issuing a search warrant. To be precise, the Cybercrime Prevention Act would have Regional Trial Court judges determine “reasonable ground” in lieu of probable cause.93 Article III, 1987 Constitution provides: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 124. The determination of “reasonable ground” under the Cybercrimes Prevention Act varies substantially from the established judicial determination of probable cause in this particular regard: “that

122.

123.

92 93

CYBERCRIME PREVENTION ACT OF 2012, § 12. Id. at ¶ 5. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 40 of 61

there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes.”94 125. This Honorable Court has held that: Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction.95 126. Solving crimes is the duty of the Executive branch, while the prevention of the commission of crimes is primarily the province of the Legislative branch in crafting penal laws to deter crime. Evaluating whether evidence sought to be obtained under the Cybercrime Prevention Act would be “essential” to the solution or prevention of cybercrimes is clearly not a justiciable question which courts can rule upon. These are policy questions that trial courts cannot determine by judicial decree. Moreover, Section 12 of the Cybercrime Prevention Act grants unto government power to access all traffic data or non-content data on the Internet,96 without need for warrant, and upon a showing of due cause.97 In other words, the Cybercrime Prevention Act requires the Department of Justice to distinguish the targeted speech as disfavored; the entire Section cannot be considered as content-neutral regulation,98 and subject to strict scrutiny. Under

127.

94 95

96 97 98

Emphasis supplied. Kalalo v. Office of the Ombudsman, et al., G.R. No. 158189, April 23, 2010, citing Okabe v. Hon. Gutierrez, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119, et al., 473 Phil. 758, 781 (2004). CYBERCRIME PREVENTION ACT OF 2012, § 3 (p). CYBERCRIME PREVENTION ACT OF 2012, § 12, ¶ 1. Bartinicki v. Vopper, 532 U.S. 514 (2001); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994) Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 41 of 61

this standard, Section 12 of the Cybercrime Prevention Act fails because: (a) there is no compelling state or government interest that justifies warrantless real-time data-gathering of personal information and other metadata; (b) the grant of power to conduct warrantless real-time data-gathering of personal information and other metadata is not narrowly tailored to achieve that goal or interest; and (c) the warrantless real-time data-gathering of personal information and other metadata is not the least restrictive means for achieving the state’s interest.99 128. First, there is no compelling state interest that requires such broad powers to conduct warrantless seizures and electronic surveillance on any Filipino so targeted, twenty four hours a day, seven days a week, with retained data for six months. While the provisions of the Cybercrime Prevention Act point toward the existence of harm in virtual space, the enumeration of acts in Section 4 of the Cybercrime Prevention Act are acts that merely involve the use of computers and their networks as tools for their consummation, and do not demonstrate any inherent danger in the tools themselves. The definition of traffic data in the Cybercrime Prevention Act allows for the inclusion of all other data besides content:”[a]ny computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.” This data includes includes: Media Access Control (MAC) address data,100 International Mobile Equipment Identity (IMEI) information,101 user information, identity, and privacy controls and protocols, file sizes, transmission rates, realtime location information, and geographic location information in contained in metadata. Section 12 also allows the Department of Justice to collect such non-content data, in real time, or as it actually happens. Such comprehensive and continuous intru-

99 100

101

Divinagracia v. Consolidated Broadcasting, G.R. No. 162272, April 7, 2009; See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) Institute of Electrical and Electronics Engineers (IEEE) Standards Association, Standard Group MAC Addresses: A Tutorial Guide 1 (2011). A MAC address allows any system administrator on a particular network to identify each and every computing device connected to the network. The International Mobile Equipment Identity number is unique to all wireless devices, assigned to mobile phones. Knowledge of this number and other non-content data allows the National Telecommunications Commission to block any mobile phone from all carriers. See https://ntc.gov.ph/downloadpdf.php?download_file=complaint_lost%20affidavit(loss%20p hone).pdf (last accessed October 3, 2012); Alex Romeo R. Fernandez, NTC advises public to report stolen or lost mobile phones, at http://tawidnewsmag.com/2011/11/ntc-advisespublic-to-report-stolen-or-lost-mobile-phones/ (last accessed October 3, 2012). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 42 of 61

sions, especially when processed with the aid of computers, are abhorrent to our Constitution, per se.102 129. Second, the absence of any limitation on what constitutes traffic and non-content data belies any attempt at narrow tailoring with regard to Section 12. The law, as presently worded, considering the lowering costs of cloud computing storage and services and of mobile computing with mobile access devices, is sufficiently broad enough to cover all Filipino citizens with a mobile phone. To paraphrase the Court in Ople,103 by the mere expedient of using an Internet or computing device including but not limited to mobile phones, computing tablets, and personal computers, a person surrenders his privacy to the government by allowing access to all his digital identification data, on the pretext that it will make him safe from a threat to his privacy. This does not meet the narrow tailoring required under the strict scrutiny standard. Finally, the amount of information actually contained and which could be obtained in non-content traffic is so broad, so wideranging that the only real protection afforded to a citizen that an intrusion is valid, the procurement of a warrant issued by a judge of competent jurisdiction, upon a personal examination of the complainant and his witnesses, and specifying the things to be searched and seized, is entirely missing. In other words, Section 12 authorizes suspicionless search, an electronic fishing expedition, for lack of a better term, without any of the due process safeguards required by our Constitution. Even if this Most Honorable Court were to measure Section 12 of the Cybercrime Prevention Act under the standards for contentneutral regulation, the Section does not meet the O’Brien test for content-neutral regulation:104 [A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of
102 103 104

130.

131.

Ople, G.R. No. 127685, July 23, 1998. Id. Social Weather Stations v. Comelec, G.R. No. 14571, May 5, 2001, citing United States v. O’Brien, 391 U.S. 367, 377 (1968). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 43 of 61

speech, expression and press] is no greater than is essential to the furtherance of that interest. 132. Here, because the governmental interest is related to the suppression of free expression, and the incidental restriction of the freedom of the expression and of the press is greater than what is essential to the furtherance of that interest. It cannot be gainsaid that notwithstanding the provisions of the Cybercrime Prevention Act, the real threat that the law seeks to prevent, that is, the unauthorized use of electronic information to one’s disadvantage, faces no real deterrent from this constant surveillance. For these reasons, Section 12 of the Cybercrime Prevention Act must be struck down as unconstitutional. Section 19 is an impermissible intrusion into the right of privacy of communication and correspondence. 134. Section 19 of the Cybercrime Prevention Act grants unto government power to stop access to and from a machine it deems to have data in violation of any Philippine criminal law,105 without need for warrant, and upon a showing of due cause.106 In other words, the government, through the Department of Justice, can order the shutdown of any mobile communication source within the Philippines or prohibit access to a particular location on the Internet through an order issued to all Internet Service Providers. The power to restrict all access to and from a particular computer or computing device is so broad, the provision has been called the “Takedown Clause”.107 Like Section 12 of the Cybercrime Prevention Act, the Takedown Clause requires the Department of Justice to distinguish the speech on a targeted machine as disfavored; the Takedown Clause

133.

135.

105 106 107

CYBERCRIME PREVENTION ACT OF 2012, § 6. CYBERCRIME PREVENTION ACT OF 2012, § 19 Melencio S. Sta. Maria, Beware the Cybercrime Law’s § 19, at http://www.interaksyon.com/article/43846/opinion--beware-the-cybercrime-laws-section19---the-takedown-clause (last accessed October 3, 2012); Philippine Daily Inquirer, A larger universe, http://opinion.inquirer.net/38078/a-larger-universe (last accessed October 4, 2012); Joaquin G. Bernas, SJ, What’s Frightening about Cybercrime Law?, at http://fatherbernasblogs.blogspot.com/2012/09/whats-frightening-about-cybercfrimelaw.html (last accessed October 4, 2012). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 44 of 61

cannot be likewise considered as content-neutral regulation,108 and subject to strict scrutiny. Under this standard, the Takedown Clause fails because: (a) there is no compelling state or government interest that justifies the application of the Takedown Clause; (b) the Takedown Clause is not narrowly tailored to achieve that goal or interest; and (c) the Takedown Clause is not the least restrictive means for achieving the state’s interest.109 136. First, there is no reason under the sun that can justify the level of warrantless intrusion and electronic surveillance necessary for the operation of the Takedown Clause. Second, there is no restriction in the text of the Cybercrime Prevention Act that restricts government from initiating suspicionless intrusions into the online activities of Filipinos under Section 12 before it exercises its powers under the Takedown Clause other than a prima facie determination of due cause, a standard significantly and substantially less than the guarantee enshrined in the due process clause. It is nothing less than a roundabout short-circuiting of the restrictions of government's power under the Bill of Rights.110 Finally, because the Takedown Clause is warrantless, it is, on its face, not the least restrictive means for achieving the state's interest. In the Anti-Wiretapping Law,111 and the Human Security Act,112 there are in place enough judicial safeguards to ensure that citizens rights, due process, and fair play are not demolished by overzealous prosecutors. For these reasons, Section 19 should not pass the strict scrutiny of this Most Honorable Court.

137.

138.

139.

108 109 110 111 112

Bartinicki v. Vopper, 532 U.S. 514 (2001); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994). Divinagracia v. Consolidated Broadcasting, G.R. №. 162272, April 7, 2009; See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) Quando aliquid prohibitur ex directo, prohibitur et per obliquum. Binalay v. Lelina, A.M. №. RTJ-08-2132, July 31, 2009. An Act to Prohibit and Penalize Wire Tapping and other Related Violations of the Privacy of Communication, and for other Purposes, Republic Act No. 4200, § 1. An Act to Secure the State and Protect our People from Terrorism [HUMAN SECURITY ACT OF 2007], Republic Act No. 9372, § 18, 50. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 45 of 61

IV.

The Cybercrime Prevention Act of 2012 (the Cybercrime Prevention Act) is contrary to the guarantee of equal protection under the law. It has been long held that the guarantee of equal protection under the laws is not breached, the government must be able to establish: (1) there must be a substantial distinction between classes; (2) the distinction applies to past and future situations, and is not merely of a temporal nature; (3) the distinction must be germane to the purpose of the law; and (4) the law must apply equally to all of the same class.113 The failure to meet these basic requirements of equal protection so permeates the provisions of the Cybercrime Prevention Act that particular provisions thereof cannot be made to stand. However, because the strict application of the equal protection clause renders the law inutile, the entire law should fall after being so measured. First, there is no substantial distinction between classes made by the Cybercrime Prevention Act. There is no substantial distinction at all between speech made with the use of a computer and other forms of communication media, especially mass media.114 The absence of such distinctions are self-evident in Sections 4(c)(1), 4(c)(3), 4(c)(4), and Section 6 of the Cybercrime Prevention Act. a. Section 4(c)(1) does not distinguish between the victim and the human trafficker.115 It does not distinguish between indecent and obscene content in a medium, regardless of its accessibility to children.116 Finally, it does not recognize the protection for consensual activities in the bedroom between adults.117 b. Section 4(c)(3) does not distinguish between such unsolicited commercial communication and that done with other communication systems, including but not limited to tele-

140.

141.

142.

113 114 115 116 117

People v. Cayat, 68 Phil. 12 (1909). Gonzalez v. Kalaw Katigbak, G.R. No. L-69500, July 22, 1985. CYBERCRIME PREVENTION ACT OF 2012, § 4(c)(1). Soriano v. Laguardia, G.R. No. 164785, April 29, 2009; See also Soriano v. Laguardia, G.R. No. 164785, March 15, 2010. Lawrence v. Texas, 539 U.S. 558 (2003). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 46 of 61

marketing, an industry indispensable to the national interest.118 c. Section 4(c)(4) does not distinguish between defamatory statements made with adequate defenses under the Revised Penal Code and defamatory statements per se, treating all defamatory statements as penal,119 leaving no defense therefor,120 as all that is incorporated is the definition of libel.121 d. As regards the incorporation of the Revised Penal Code and all Special Penal Laws pursuant to Section 6 and the consideration therefor as an aggravating circumstance under Section 7,122 there is no substantial distinction between a crime punishable by special laws committed through the use of computers and a crime that is committed without computers,123 such that all that is required for a much harsher penalty is the usage, at any point in the commission of the offense, of a computing device, including but not limited to something as common as a mobile phone. 143. To illustrate, the Cybercrime Prevention Act does not distinguish between legitimate and illegitimate use. Specifically, Sections 4(c)(4), Sec. 4(c)(3), Sec. 5(a) and Sec. 6 of the Cybercrime Prevention Act, as worded, do not distinguish between legitimate and illegitimate use of the Internet. Consider, for instance, a mere “like” of a Facebook status or post, or a tweet or retweet of a tweet on Twitter, or even a mere blogpost. These acts are done all the time on the Internet, and are largely considered legitimate use. Under the Cybercrime Prevention Act, these acts are illegal and criminal liability is incurred under Sec. 4(c)(4), which defines electronic libel as “the unlawful or prohibited acts of libel as defined in Article 355 of the Revised

144.

118 119 120

121 122 123

See also Philcom Employees Union v. Phil. Global Communications, et al., G.R. No. 144315, July 17, 2006. Ubi lex non distinguit nec nos distinguere debemus. Guerrero v. Commission on Elections, 336 SCRA 458. Only when the law is ambiguous or of doubtful meaning may the court interpret or construe its true intent. See Rizal Commercial Banking Corporation v. Intermediate Appellate Court, 320 SCRA 279. CYBERCRIME PREVENTION ACT OF 2012, § 4(c)(4); An Act Revising the Penal Code and other Penal Laws [REVISED PENAL CODE], Commonwealth Act No. 3815. art. 353. CYBERCRIME PREVENTION ACT OF 2012, § 6, 7. Ubi lex non distinguit nec nos distinguere debemus. Guerrero v. Commission on Elections, 336 SCRA 458. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 47 of 61

Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.” 145. In fact, the phrase “any other similar means which may be devised in the future” is too broad and vague as any other similar means can be interpreted to apply to nearly anything created in the future. Certainly, for a penal law which must be scrutinized strictly, such a phrase is far too broad so as to make nearly any act done by any future means a violation of this law. This is further complicated by Sec. 5 (a) of the law which provides that “any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.” As such, if you are not liable for actually committing libel with your Facebook status or tweet or even blog post, you may be held liable for abetting or aiding when you “share” or “like” such posts. In other words, under the vague and undistinguishing provisions of these particular Sections, an Internet user would be subjected to an electronic libel complaint for everyday legitimate acts done on your Facebook or Twitter account, or even on a blog post, without any proper distinction or standard to determine what is actually a criminal act. There is likewise a failure to properly distinguish between legitimate and illegitimate use of the Internet under Sec. 4(c)(3) of the law on Unsolicited Commercial Communications. This provision states that “the transmission of commercial electronic communications with the use of computer system which seek to advertise, sell or offer for sale products are prohibited.” As worded, this provision prohibits and penalizes commercial acts of marketing and sales, which are perfectly legitimate whether or not done on the Internet and are, in fact, currently being done everyday in business. Once again, this leaves far too much discretion on the part of law enforcement to determine what acts are criminal. The same problems apply to Sec. 6 of the law, which provides that “all crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act.” This provision attempts to penalize all other crimes existing under Philippine law by making them punishable as well when committed in any electronic form.

146.

147.

148.

149.

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 48 of 61

150.

Thus, from the foregoing, the abovementioned provisions, for its failure to properly distinguish between legitimate and illegitimate use and thereby violating the equal protection clause of the Constitution, must be declared void. Second, the distinctions made in the Cybercrime Prevention Act are of a temporal nature. In all of the provisions of the Cybercrime Prevention Act, there is no substantial distinction that is not of a temporal nature, or limited to existing conditions only.124 Computers and computer devices are subject to Moore’s Law.125 Put plainly, what is novel now is ubiquitous in the future, such that a bias against the use of a particular form of special communications technology today will be a bias against the use of that common form of technology tomorrow. We invite this Most Honorable Court to note, as we have, that computers & mobile devices are now more dangerous weapons than knives, swords, or guns. More jail time in the former. By legislative fiat, these so-called cybercrimes are now more perverse than even rape with homicide. Such a temporal bias against technological innovation is anathema to the Constitution,126 and this law that violates such an important tenet of the equal protection clause must be struck down. The distinctions created in the Cybercrime Prevention Act are not germane to the purpose of the law. In the many cases on equal protection, the standard by which a statute is said to be germane to the purpose of the law is on a sliding scale.127 Infringements of thought and free expression, though criminal in nature,128 must be brought under strict scrutiny. The strict scrutiny standard requires that for the government to overcome the presumed unconstitutionality of the statute: (a) the presumed law or policy must be justified by a compelling state or

151.

152.

153.

154.

155.

124

125 126 127 128

Romarico J. Mendoza v. People of the Philippines, G.R. No. 183891, October 19, 2011; League of Cities of the Philippines v. Comelec, G.R. No. 176951, February 15, 2011; Biraogo v. Philippine Truth Commission of 2010, G.R. No. 176951, December 7, 2010; Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004; People v. Cayat, 68 Phil. 12 (1909). Gordon E. Moore, Cramming More Components onto Integrated Circuits. Electronics Magazine 4 (1965). H. Harry Roque, Jr., et al., v. Comelec, et al., G.R. No. 188456, September 10, 2009. Ang Ladlad v. Comelec, G.R. No. 190582, citing Pace Membership Warehouse, Div. of K-Mart Corp. v. Axelson, 938 P.2d 504. White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, citing Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 49 of 61

government interest; (b) such law or policy must be narrowly tailored to achieve that goal or interest; and (c) the law or policy must be the least restrictive means for achieving that interest. 129 156. In particular, Sections 4(a)(1), 4(a)(6), Section 4(c)(1) 5(b) and 6 do not meet the standards provided for under strict scrutiny: a. The failure to narrowly tailor Section 4(a)(1) to exclude the ethical hacker, a computer security professional, who by his knowledge of a computer’s systems, must test an organization’s computer security without prior authority in order to enhance its defenses,130 has caused the said professional to lose a profession in which the professional once held a vested right.131 b. The failure to narrowly tailor Section 4(a)(6), has caused a user using his real name to suffer more than those who use nom de guerres or aliases, or take the name of another in satire, parody, or any other literary device.132 c. The failure to narrowly tailor Section 4(c)(1), causes a real danger to women's sexual rights and freedoms. Because it the provisions are not narrowly tailored to protect women caught in human trafficking and prostitution,, women have become the primary target of criminal prosecution. d. The failure to narrowly tailor Section 5(b), which makes the attempt of a cybercrime a criminal offense, causes the mere attempt to write one’s thoughts online, which may never get published or displayed to third persons, a criminal offense. Considering the move toward cloud computing,133 merely writing a thought on one’s computer is now a punishable offense,134 and can hardly be considered the least restrictive means for achieving any state interest.

129

130 131 132 133 134

White Light Corporation, G.R. No. 122846, January 20, 2009, citing Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001; Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004; City of Manila v. Perfecto A.S. Laguio, Jr. et al., G.R. No. 118127, April 12, 2005; Antonio M. Serrano v. Gallant Maritime Services, Inc., et al., G.R. No. 167614, March 24, 2009. C.C. Palmer, Ethical Hacking, 40 IBM SYSTEMS JOURNAL 769 (2001) Renato C. Corona v. United Harbor Pilots Association of the Philippines, G.R. No. 111953, December 12, 1997. Ubi lex non distinguit nec nos distinguere debemus. Guerrero v. Commission on Elections, 336 SCRA 458. BILL GATES, THE ROAD AHEAD 153 (1995). CYBERCRIME PREVENTION ACT OF 2012, § 5(b). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 50 of 61

e. For failing to narrowly tailor Section 6, which incorporates all penal laws in the Philippines into the Cybercrime Prevention Act, there is a danger that valid means of filesharing and meme propagation will be adversely affected, prosecuting acts that were valid under the principles of fair use. 157. For failing to pass strict scrutiny, these provisions must be considered as not being germane to the purpose for which they were enacted, and odious to the guarantee of equal protection in our Constitution. Even if the provisions of the Cybercrime Prevention Act were to be examined under the rational basis test, they still would not meet the legal standard of equal protection, for failing the other requirements therefor.135 To illustrate, if the intent of the law is to suppress the business of cybersex, the measure may be futile as it fails to consider the transnational nature of cybersex where site owners or operators are beyond the jurisdiction of the Philippines. The provisions of the Cybercrime Prevention Act do not apply equally to all members of the same class. It is essential to the Equal Protection Clause that the law applies equally to all, that is to say that it must apply equally to all of the same class.136 In particular, Sections 12, 4(c)(3), 4(c)(4), and 4(a)(6) of the Cybercrime Prevention Act, on their face, violate this fundamental requirement. a. As regards Section 12, the law does not provide the safeguards of substantial due process found in other laws,137 which infringe on the rights of expression and of the press, 138 and of privacy and privacy of communication and correspondence.139 b. As regards Section 4(c)(3), the law treats unsolicited private commercial communication and unsolicited private

158.

159.

135 136 137

138 139

United States v. O’Brien, 391 U.S. 367, 377 (1968). Cayat, 68 Phil. 12 (1909). An Act to Prohibit and Penalize Wire Tapping and other Related Violations of the Privacy of Communication, and for other Purposes, Republic Act No. 4200, § 1; An Act to Secure the State and Protect our People from Terrorism [HUMAN SECURITY ACT OF 2007], Republic Act No. 9372, § 18, 50. CONST., art. III, § 4. CONST., art. III, § 3 (1). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 51 of 61

political communication differently,140 though they are in the same class of unsolicited communication sought to be restricted by the Cybercrime Prevention Act.141 c. As regards Section 4(c)(4) the law treats a journalist who has an article print solely offline by his publisher penalized less than a publisher who reprints the same work online,142 regardless of the control of the journalist over the work after submitting his work product to his publisher. d. As regards Section 4(a)(6), the law treats those who intentionally misappropriates the name of another to commit what any other crime in the Philippines will cause such other person to suffer the humiliation of prosecution and/or the infringement of his liberties,143 under Sections 12 and 19 of the Cybercrime Prevention Act, for something he did not do. 144 160. For this failure, this Most Honorable Court must not hesitate to strike down the Cybercrime Prevention Act as unconstitutional.

V.

The Cybercrime Prevention Act of 2012 violates our legal obligations under public international law. Under the doctrine of incorporation embodied in the Constitution, the Philippines “adopts the generally accepted principles of international law as part of the law of the land.”145 The criminalization of libel over the Internet and other communications media violates the these principles, especially the rights of free speech, free expression and press freedom enshrined in the Universal Declaration of Human Rights,146 and the International

161.

162.

140 141 142 143 144 145 146

Seth Grossman, Keeping Unwanted Donkeys and Elephants Out of Your Inbox: The Case for Regulating Political Spam. 19 B.T.L.J. 1533. CYBERCRIME PREVENTION ACT OF 2012, § 4(c)(3). CYBERCRIME PREVENTION ACT OF 2012, § 4(c)(4). CYBERCRIME PREVENTION ACT OF 2012, § 4(a)(6). CYBERCRIME PREVENTION ACT OF 2012, § 12, 19. CONST., art. 2, § 2; Article 59, Statute of the International Court of Justice, art. 59, 3 Bevans 1179; 59 Stat. 1055; T.S. No. 993. Universal Declaration of Human Rights, art. 19, G.A. Res. 217, U.N. GAOR, 3rd Sess., at 71, U.N. Doc. A/810 (1948). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 52 of 61

Covenant on Civil and Political Rights.147 As early as 1951, this Honorable Court recognized the generally accepted principles of international law under the Universal Declaration of Human Rights as part of the law of the land in Mejoff v. Director of Prisons.148 163. The criminalization of libel over the Internet and other telecommunications media violates pacta sunt servanda,149 as the Philippines is a signatory to both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. On 29 June 2012, the Human Rights Council of the United Nations General Assembly passed Resolution No. A/HRC/20/L.13 recognizing the freedom of expression on the Internet as a basic human right.150 Thus, a member-State of the United Nations, such as the Philippines, now has an obligation erga omnes, that is, an obligation owed to humanity,151 to promote and protect the right to freedom of opinion and expression on the Internet on the part of its citizens. The same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with Articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.152 The promotion, protection and enjoyment of human rights, including the right to freedom of expression, on the Internet and in other technologies, as well as on how the Internet can be an important tool for development and for exercising human rights, taking into consideration the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms.153

164.

147 148 149 150 151

152 153

International Covenant on Civil and Political Rights, art. 19, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967). 90 Phil. 70 (1951). Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969). The promotion, protection and enjoyment of human rights on the Internet, GE.12-14710, U.N. Doc. A/HRC/20/L.13 (2012). Advisory Opinion No. 131, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 2004 (July 9) available at http://www.icjcij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_20040709 .htm (last accessed September 26, 2005). The promotion, protection and enjoyment of human rights on the Internet, GE.12-14710, U.N. Doc. A/HRC/20/L.13 (2012). Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 53 of 61

165.

Hence, the Freedom of the Internet, as de lege lata, is a recognized human right encompassing freedom of opinion and expression, in relation to the freedom of communication provision on Section 10 of Article XVI of the Constitution.154 The provisions of the Cybercrime Prevention Act, namely Secs. 4 (c)(4), 5,155 and 6,156 breach the principles of both conventional and customary international law, by imposing prior restraint and subsequent punishment in exercising the right of free expression over the Internet.

VI.

The Cybercrime Prevention Act acts as an ex post facto law. Sections 4(c)(1), 4(c)(4), 5 and 6 of the Cybercrime Prevention Act is an ex post facto law, and must be struck down. By the very nature of the Internet, digital content or data uploaded to the millions of web sites are more or less permanent information stored in the vast complex of computer networks. Stored data and digital content that have been held for a number of years may still be viewed until the present. Hence, digital content or stored data uploaded before the date of effectivity of the Cybercrime Prevention Act, may be given retroactive effect due to its online presence at the time when the law took effect, against the

166. 167.

154

CONST., art. XVI, § 10. The provision reads:
The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

155

CYBERCRIME PREVENTION ACT OF 2012,§ 5. The provision reads:
SEC. 5. Other Offenses. – The following acts shall also constitute an offense: (a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable. (b) Attempt in the Commission of Cybercrime. – Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

156

CYBERCRIME PREVENTION ACT OF 2012,§ 6. The provision reads:
SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

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persons responsible for uploading, or encoding the digital content. A person may therefore be criminally liable for the stored data and digital content uploaded before 03 October 2012 if he does not remove such data from the Internet when the law took effect. Digital content or data that did not constitute the cybercrime of cyberlibel or cybersex may, from 03 October 2012 onwards, be the subject of a criminal prosecution under the Cybercrime Prevention Act. VII. The implementation of the Cybercrime Prevention Act will clog the dockets of our courts arising from a deluge of frivolous lawsuits. 168. It is likewise respectfully submitted to the Honorable Court that the Cybercrime Prevention Act will needlessly clog the dockets of the Courts and consequently overflow the country’s already congested jails. The Cybercrime Prevention Act, as worded, will open the floodgates to countless frivolous lawsuits. It is public knowledge that the Philippines is one of the most heavily internet savvy and social-media centric populations in the world. The European Travel Commission, which administers the ETC New Media Trend Watch web site,157 ranked the Philippines as 17th among the top 20 internet users in the world as of first quarter of 2012 with 33.6 million users.158 Furthermore, the Philippines currently ranks 10th in the number of Twitter users in the world,159 as there are 9.5 million registered Twitter users in this country.160 In a 2007 Survey on Internet Access and Use by Filipino Schoolchildren, it was found that the Philippines ranked 7th among the world’s top 15 countries where bloghosting is popular-

169.

157 158 159

160

http://www.newmediatrendwatch.com/ (last accessed October 3, 2012). http://www.newmediatrendwatch.com/regional-overview/90-asian (last accessed October 3, 2012). Paolo Montecillo, PH has 9.5 M Users; Ranks 10th, Philippine Daily Inquirer, August 9, 2012 available at http://technology.inquirer.net/15189/philippines-has-9-5m-twitter-users-ranks10th (last accessed Oct. 7, 2012). Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 55 of 61

ly used.161 In fact, the Philippines was officially dubbed as “the social media capital of the world in 2011.”162 170. As such, it can be readily seen that the Filipino people, a large number of whom are Internet users, will be adversely affected by the Cybercrime Prevention Act. If the law will indeed be implemented, million of Filipino Internet users will suddenly be vulnerable to complaints of violations of the Cybercrime Prevention Act. It must be recalled that, as discussed in this petition, under the current questionable provisions of the Cybercrime Prevention Act, a mere “like,” “tweet,” “share,” or blog post may be considered a criminal act. Thus, any of the millions of Filipino Internet users, regardless of age, educational background or even location within the country, can suddenly be a respondent in a criminal complaint for nearly any of their online activities. In short, millions of Filipinos could face criminal civil charges simply for using the Internet as they normally do. If this will be the case, then it is easily apparent that there will be thousands of new cases filed before the Prosecutorial Offices and the Courts due to the Cybercrime Prevention Act. The effect of thousands of new criminal cases filed before the country’s already congested dockets will be catastrophic. It has long been acknowledged that “[h]undreds of thousands of cases remain pending for further action or resolution. The cases pending in all levels of the judicial system keep piling up at an alarming rate.”163 It was recently remarked by one Supreme Court Justice there are over 700,000 cases before the courts today.164 As such, “case congestion is the biggest problem of the judiciary.”165 Imagine adding thousands and thousands more cases to those now before the courts because of the Cybercrime Prevention Act.

171.

172.

173.

161

162

163

164

165

Asian Institute of Journalism and Communication, Survey on Internet Access and Use by Filipino Schoolchildren, p. 4 (2007) (submitted to, and on file with, UNICEF) at http://www.aijc.com.ph/survey_Internet_access.pdf (last accessed on 30 Sept. 2012). Paolo Montecillo, PH has 9.5 M Users; Ranks 10th, Philippine Daily Inquirer, August 9, 2012 available at http://technology.inquirer.net/15189/philippines-has-9-5m-twitter-users-ranks10th (last accessed Oct. 7, 2012). Alfredo F. Tadiar, Unclogging the Court Dockets, Paper presented in the Symposium on Economic Policy Agenda for the Estrada Administration, June 1, 1999 at INNOTECH, Commonwealth Avenue, Diliman, Quezon City, at http://dirp4.pids.gov.ph/ris/taps/tapspp9926.pdf, (last accessed September 30, 2012). Sunstar Manila, Case Congestion Biggest Problem of the Judiciary, July 26, 2012 at http://www.sunstar.com.ph/manila/local-news/2012/07/26/case-congestion-biggestproblem-judiciary-234158 (last accessed September 30, 2012). Id. Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 56 of 61

The courts and prosecutors will be overwhelmed and the already slow-grinding wheels of justice may be further delayed, if not halted altogether. 174. Furthermore, the Cybercrime Prevention Act, if allowed to continue, will cause further congestion in the already crowded jails of the country. According to the Bureau of Jail Management and Penology, as of May 2012, there are currently 69,735 inmates in Philippine jails,166 with a congestion rate of 318%.167 Congestion rate is defined as the number of extra inmates over the jail capacity.168 In other words then, the Philippines is currently over 300% above its jail capacity. Clearly, with the sheer number of cases that will be filed by the Cybercrime Prevention Act and the number of people that will likely be convicted under this law, the already heavy case dockets of the courts and the congestion rate of the country’s jails will substantially increase upon the law’s implementation. This, certainly, could not have been the intent of the framers of this law. Thus, as the effect of the Cybercrime Prevention Act is the further clogging of both the courts and the country’s jails so as to render their functions impossible, it is respectfully submitted that the Cybercrime Prevention Act should indeed be stricken down for being unconstitutional.

175.

176.

Allegations in support of the prayer for the issuance of a Writ of Injunction and/or a Status Quo Ante Order 177. 178. Petitioners replead all the foregoing allegations in support of their prayer for Writ of Injunction and/or Status Quo Ante Order. The violations against the constitutional rights of the Petitioners are clear and manifest, as their constitutional rights to privacy, freedom of expression, speech, and due process, among other rights, are currently being violated with the enactment and continuing implementation of the provisions of the Cybercrime Prevention Act.

166 167 168

BJMP website on Jail population, http://www.bjmp.gov.ph/data/jail_population.html (last accessed September 30, 2012). BJMP Website on Jail Congestion, http://www.bjmp.gov.ph/data/congestion_rate.html (last accessed September 30, 2012). Dr. Romulo A. Virola, Guilty and not guilty, National Statistics Coordination Board at http://www.nscb.gov.ph/headlines/StatsSpeak/2011/091211.asp#tab4 (last accessed September 30, 2012). Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 57 of 61

179.

Thus, the issuance of a Status Quo Ante Order and/or writ of preliminary injunction - ordering Respondents to maintain and observe the status quo prevailing before the enactment and effectivity of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175), and enjoining the Respondents from implementing the said law - is warranted. Prayer

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that: 1. Upon filing of this Petition, a Status Quo Ante Order and/or a writ of Preliminary Injunction be ISSUED against the Respondents, requiring them to maintain and observe the status quo prevailing before the enactment and effectivity of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175), and thereby enjoin its implementation; This Petition be given DUE COURSE; Judgment be rendered commanding Respondents to DESIST from implementing the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) and; Judgment be rendered NULLIFYING the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) for being in contravention of the 1987 Constitution and therefor unconstitutional.

2. 3.

4.

All other reliefs just and equitable are likewise prayed for. Pasig City for the City of Manila.

October 9, 2012.

Counsel for the Petitioners Philippine Internet Freedom Alliance

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 58 of 61

RENECIO S. ESPIRITU, JR. Guevarra Mendoza & Espiritu Law Offices Suite 602 Richmonde Plaza Hotel. 21 San Miguel Avenue Ortigas Center, Pasig City PTR No. 3459005; June 11, 2012, Makati City IBP 900225; June 11, 2012, Mandaluyong City Roll No. 48613 MCLE Compliance No. III-0009293, March 08, 2010 ilvalentino74@yahoo.com

KELVIN LESTER K. LEE San Juan Tayag Lee & Verga Law Offices Unit 804 Xavierville Square Xavierville Avenue, Quezon City PTR No. 3175847; 2 January 2012, Makati City IBP No.870184; 2 January 2012, Makati City Roll No. 57215 MCLE Compliance No. III-0009461, 20 April 2010 attykelvinlee@gmail.com

COPY FURNISHED HON. PAQUITO N. OCHOA, JR. Office of the Executive Secretary Malacanang Palace, Manila HON. LEILA S. DE LIMA Office of the Secretary of Justice Padre Faura Street, Manila HON. MAR A. ROXAS Office of the Secretary of the Interior and Local Government E. de los Santos Avenue, Quezon City

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 59 of 61

HON. MARIO MONTEJO Office of the Secretary of Science and Technology DOST Building, Gen. Santos Avenue Bicutan, Taguig City HON. LOUIS NAPOLEON C. CASAMBRE Office of the Executive Director Information and Communications Technology Office DOST Building, Gen. Santos Avenue, Bicutan, Taguig City. HON. NONNATUS CAESAR R. ROXAS Office of the Director National Bureau of Investigation NBI Building, Taft Avenue, Ermita, Manila. HON. NICANOR BARTOLOME Office of the Director General Philippine National Police Camp Crame, Quezon City HEAD OF THE DOJ OFFICE OF CYBERCRIME AND OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER c/o the Department of Justice Padre Faura Street, Manila HON. FELICIANO BELMONTE, JR. Speaker of the House of Representatives House of Representatives Quezon City HON. JUAN PONCE ENRILE Senate President Senate GSIS Building, Financial Center Roxas Boulevard Pasay City OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo St. Legaspi Village, Makati City

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 60 of 61

EXPLANATION The foregoing Petition is being served upon the other parties by registered mail, personal service not being practicable due to distance and lack of adequate personnel to effect the same at the time of filing/service.

RENECIO S. ESPIRITU, JR.

Petition for Certiorari and Prohibition and/or Injunction (with Prayer for Issuance of Status Quo Ante Order) Philippine Internet Freedom Alliance v. The Executive Secretary, et al. Page 61 of 61