Cybercrime Law: Kabataan et al Motion for Reconsideration | Defamation | Search And Seizure

Republic of the Philippines SUPREME COURT OF THE PHILIPPINES Manila

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL. Petitioners,

SC-G.R. SP. NO. (Petition for Prohibition, Mandamus and Certiorari with Prayer for the Issuance of a Temporary Restraining Order)

- versus -

PAQUITO N. OCHOA JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of the Justice, Respondents. x--------------------------------------x

MOTION FOR RECONSIDERATION Petitioners, by counsel, respectfully STATES that:

TIMELINESS OF THE MOTION 1. On February 18, 2014, the Honorable Supreme Court rendered a decision relative to this case, which was received by Undersigned Counsel on February 26, 2014. This motion is

filed on March 11, 2014, and thus falls within the period allowed by law.

GROUNDS FOR THE ALLOWANCE OF THE MOTION
I.

SECS. 4(C)4, 5, AND 6 OF R.A. NO. 10175 ARE UNCONSTITUTIONAL DUE TO VAGUENESS AND OVERBREADTH;

II.

PARTICULAR SECTIONS OF CHAPTER IV OF R.A. NO. 10175 ARE UNCONSTITUTIONAL DUE FOR

VIOLATING

CONSTITUTIONAL

PROCESS,

AMONG OTHER RIGHTS;

DISCUSSION

2. SECS. 4(C)4, 5, AND 6 OF R.A. NO. 10175 ARE UNCONSTITUTIONAL OVERBREADTH; DUE TO VAGUENESS/

3. Clearly, online libel, which the petitioners oppose, curtails freedom of expression and that of free speech. As such, it is within the ambit of the doctrine of overbreadth, and at the same time should likewise be considered void for being vague.

4. Considering the foregoing, a facial challenge is allowed in this case because of possible "chilling effect" upon protected speech. Said law clearly regulates and proscribes speech. The possible danger it poses in permitting some unprotected speech to go unpunished is overwhelmed by the possibility that the protected speech of others may be restricted as well as censored.

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5. Being a case involving free speech, the overbreadth and the void for vagueness doctrine must be applied. A facial overbreadth is therefore applicable, considering the fact that the Anti Cyber Crime Law seek to regulate spoken words. As for the vagueness doctrine, since unbridled discretion is left in the hands of a few, people will have a difficult if not impossible way to delineate what is considered a crime and what is protected speech.

6. To reiterate, a facial invalidation of the Anti Cyber Crime Law is the proper remedy, for it might be applied to cases involving free speech which are constitutionally protected. A facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling effect” on protected speech, the exercise of which should not at all times be abridged.

7. The Anti Cyber Crime Law suffers from the defect of vagueness since it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application.

8. It violates the Constitution because: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

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9. Moreover, as this petition delves not merely in questioning the constitutionality of a penal statute but defending the

constitutional guarantee of free speech and expression, a facial challenge of the statute is justified.

10. The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling effect” on protected speech, the exercise of which should not at all times be abridged.1

11. Secs. 4(c)4, 5 and 6 of R.A. No. 10175 relative to libel are unconstitutional due to vagueness. a. Section 4(c)4 of R.A. No. 10175 states, to wit – (4) Libel. — The 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.

12. The elements of libel under Sec. 4(c)4 are therefore:

b. under

The performance of any of the acts Art. 355, which includes the

commission of libel by means of: i. ii. iii. iv.
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writing, printing, lithography, engraving,

KMU vs. Ermita, G.R. No. 178554, October 5, 2010.
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v. vi. vii. viii. ix. x.

radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means;

c. Committed through a computer system or any other similar means, which may be devised in the future.

13. Even those actually engaged in libelous conduct through acts or activities through a computer system are left with no certainty whether their acts constitute punishable conduct under this form of libel under R.A. No. 10175 and what type of penalty shall be imposed upon them upon the commission of such acts.

14. Furthermore, it must be noted that Sec. 6 of R.A. No. 10175 creates further confusion and vagueness as to which penal statute and penalty shall govern the commission of this new type of libel. 15. Sec. 6 of the assailed law states, to wit –

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 shall and be

communications

technologies

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

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Code, as amended, and special laws, as the case may be.

16. Again, the section is best described as creating not a new criminal offense, but creates a special aggravating circumstance in the form of the commission of the criminal offenses by, through and with the use of information and communications technology.

17. The offenses, when committed through, by or with the use of information and communications technology shall be punished one degree higher than the penalty prescribed in the Revised Penal Code and special laws.

18. It must thus be noted that with the operation of this provision, the commission of the old type of libel under the Revised Penal Code made by, through and with the use of information and

communications technology may thus open persons engaged therein to criminal liability, independently of the new type of libel R.A. No. 10175 committed through the use of a computer system.

19. With the absence of any mention of any penalty or reference to any penalty under the Revised Penal Code in the commission of the new type of libel under R.A. No. 10175, and the raising of the penalty of the old type of libel provided information and communications technology is used in the commission of the crime, the public is therefore left to guess whether in fact there exists liability in the event that libelous remarks are made on the Internet, particularly when made through a computer system.

20. The public is left to guess whether criminal liability will attach under the old type of libel committed through information

communications technology as per Sec. 6 of R.A. No. 10175, or the
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new type of libel through the use of a computer system under Sec. 4(c)4 of the same law.

21. Furthermore, it cannot be assumed that the use of a computer system and the use of information and communications technology are one and the same.

22. Under the assailed law, only the phrase computer system has been defined. There is no definition for the phrase information and communications technology.

23. The public is therefore left to guess as to the meaning of information and communications technology relative to the

commission of offenses in the Revised Penal Code and special laws.

24. Because of this vagueness and confusion, this will most definitely give law enforcers unbridled discretion in carrying out the law’s provisions, become an arbitrary flexing of the Government muscle, and produce a chilling effect on legitimate and protected speech.

25. As a result, due to the vagueness and confusion of the statute, the penal statute will intrude upon perfectly legitimate and protected speech. 26. In the Honorable Supreme Court’s decision on the Anti Cyber Crime Law, the constitutionality of Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code and special laws are committed with the use of information and communications technologies was upheld by explaining that “in using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The

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distinction, therefore, creates a basis for higher penalties for cybercrimes.”2

27. By rendering such decision, the Honorable Supreme Court failed to realize the broad ramifications of this provision. Through Section 6, it is presumed that all crimes committed with the use of information and communications technology would automatically be graver than if the crime was committed in the real world.

28. The problem lies in interpreting what constitutes crimes using information and communications technology. Because of the vagueness and confusion that Section 6 poses, this will most definitely give law enforcers unbridled discretion to liberally interpret the phrase “committed by, through and with the use of information and communications technologies” as encompassing crimes

committed not only by use of computer data and relevant computer software but also through the use of computer hardware. 29. Under the Honorable Supreme Court’s current interpretation, crimes such as serious physical injuries and even murder committed using computer hardware such as a keyboard, a computer monitor, or even electric cables and wires can be considered as covered by Section 6 of R.A. No. 10175, thus imposing a one degree higher penalty for such cases.

30. By subsuming all crimes under the Revised Penal Code and special laws in a vague and overbroad manner, Section 6 of R.A. No. 10175 also effectively creates new crimes such as online rebellion.

Jose Jesus M. Disini, Jr., et al. Vs. The Secretary of Justice, et al., G.R. No. 203335, February 18, 2014.
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31. While the Revised Penal Code imposes a penalty of reclusion temporal for people participating in a rebellion or insurrection, Section 6 has now effectively created online rebellion with a one degree higher penalty.

32. Sec. 13 of R.A. No. 10175, or the provision on the preservation of computer data violates the constitutional right to due process relative to the undue deprivation of property. 3

33. The order of preservation of computer data is given by law enforcement authorities including the further extension of such preservation.

34. However, it must be noted that the preservation of computer data is akin to the garnishment of personal property or an asset preservation order in civil forfeiture proceedings in which the free use and disposition of private property is restricted.

35. The preservation of computer data order, including its extension does not provide the owner or possessor of computer data even the minimum requirements of due process, particularly notice and the opportunity to be heard as to why his computer data is being order preserved and his use and disposition restricted.

SEC. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.
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Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
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36. Sec. 15, or the provision on Search, Seizure and Examination of Computer Data4 violates the constitutional right against unreasonable searches and seizures.

37. Under this section, it appears that the mandatory constitutional, procedural and jurisprudential requirements of a valid search and seizure of property shall not apply to the search, seizure and examination of computer data.

38. It must be emphasized that the mandatory requirements of a valid search and seizure applies not merely to physical objects subject of a search and seizure but must also necessarily apply to incorporeal property such as computer data.

SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.
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Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: (a) To secure a computer system or a computer data storage medium; (b) To make and retain a copy of those computer data secured; (c) To maintain the integrity of the relevant stored computer data; (d) To conduct forensic analysis or examination of the computer data storage medium; and (e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network. Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination. Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.
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PRAYER

WHEREFORE, it is respectfully prayed of the Honorable Court that: After due proceedings, a Decision be rendered–

1.

a.

Declaring the unconstitutionality of Republic

Act. No. 10175 or its unconstitutional provisions;

Petitioners pray for such other reliefs as are just and equitable under the premises.

Quezon City for the City of Manila, March 11, 2014.

RESPECTFULLY SUBMITTED.

By:

VICENTE JAIME M. TOPACIO Counsel for Petitioners #5 Palosapis St., Brgy. Amihan, Project 3, Quezon City 1102 Roll of Attorneys No. 59418 IBP Receipt No. 894942/March 6, 2014/City of Manila PTR No. 9018959/1-6-14/Quezon City MCLE: IV-008786/4-24-13 EXPLANATION: A copy of the foregoing motion was sent thru registered mail due to time and personnel constraints.

VICENTE JAIME M. TOPACIO

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