The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

THE PHILIPPINE QUARTERLY

IT Law Journal
what’s Inside

THE OFFICIAL PUBLICATION OF THE ARELLANO UNIVERSITY SCHOOL OF LAW E-LAW CENTER AND IT LAW SOCIETY VOLUME 1, N UMBER 2

E-COURT: CHANGING THE TRIAL ENVIRONMENT E-COUR OURT

1 T-C
E

OURT: CHANGING THE RIAL ENVIRONMENT

by Ma. Cristina A. Ramos

2E

DITORIAL

P HILIPPINE FIGURES

F ACTS

4 IWMD? TD M 7 IR S

S THERE SUCH A THING AS HE W EB AS A EANS OF ESTRUCTION: THE SUPPOSED THREAT OF CYBERTERRORISM

I
&
IN

n November 2003, a Memorandum of Agreement (MOA) was signed by Sen. Aquilino Pimentel Jr., Court Administrator Presbitero Velasco Jr. and Mayor Jejomar Binary of the City of Makati for the installation of the country's first electronic court. The electronic court (E-court) project is an initiative of Sen. Pimentel, driven by his desire to allow the courts to maximize the use of technology in enhancing the court processes. For its initial budget, Sen. Pimentel allocated P2 million of his Priority Development Assistance Fund. A counterpart of P2 million shall be provided by the city government of Makati. The installation of E-courts in other regional trial courts will depend on the willingness of the local government units to provide a counterpart amount to shoulder the initial budget of said courts. Features of the E-court The E-courts will have three major innovations, namely: computer-aided transcription (CAT) facilities, case administration or case management system and tele-video conference room. The computer-aided transcription facilities will allow courts to provide transcripts of the proceedings to be printed and distributed at the end of every hearing. With these facilities, parties will not have to wait for weeks or even months before they can be furnished with copies of the transcripts of the proceedings. The introduction of this digital recording and transcription system in our courts will best

NTERNET D ECENCY EGULATION VS . F REE PEECH (THE US CASE OF ASHCROFT VS. ACLU)

implement Section 16 of the Bill of Rights providing for the litigants' right to speedy disposition of cases. It is well recognized that the time spent by the parties in waiting for the transcript of stenographic notes is a fact most contributory to the current 'at a snail's pace' disposition of cases. With the computerization of the transcription, the parties will be assured that before they leave the courtroom, they will have the copies of the transcript of the proceedings with them. Moreover, for an enhanced case management or case administration, the project includes a computer linkage to the Supreme Court. This feature will allow the Office of the Court Administrator to effectively monitor the cases pending in the trial court and to check the letter's compliance with the guidelines and rules issued by the Supreme Court as regards the disposition of the cases before it. Surely, this will be an effective measure for the High Court to exercise its supervisory functions over the lower courts. Perhaps the best feature of the E-court project is the tele-video conference room. This is a closed-circuit video room which allows child witnesses to testify outside the courtroom but within its vicinity to prevent them from being intimidated or influenced by the accused or other persons. This facility will certainly protect vulnerable witnesses especially children whose appearance before the courts could be traumatic to them. To illustrate the advantage of the child witness room, Atty. Ivan John Uy, Chief of the
>> [ 3 ] E-Court

10 15 JC

FROM FREE TO FEE?
URISPRUDENCE YBERLAW

16 IGATT 17 L T

NTERNATIONAL E-TRADE: VS. GATS

EXICON OF C YBERLAW ERMINOLOGIES

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A 21 R R

HILIPPINES AS KNOWLEDGE ENTER OF A SIA IN THE ST CENTURY

MENDMENTS TO TEH 1998 ULES OF THE HOUSE OF EPRESENTATIVES E LECTORAL T RIBUNAL

(HRET)

22 L R 26 [L B
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EGAL CITATION: WEBSITES AS EFERENCE

EGALWEB] WWW.SUPREMECOURT.GOV.PH: RINGING THE JUDICIARY CLOSER TO THE PUBLIC

-L 28 D H

AW CENTER EXECUTIVE IRECTOR ATTENDS ARVARD INTERNET LAW PROGRAM

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Editorial

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he e-Law Center would like to publicly express its deepest appreciation to the Arellano University School of Law and the Arellano Law Foundation, particularly to Dean Mariano Magsalin Jr. and Mr. Florentino Cayco III, for their unwavering commitment to make the law school at the forefront of cyber law education, research, advocacy in the country. With their continuing support, the eLaw Center was able to cause the publication of this IT Law Journal, now on its second issue. In my capacity as Executive Director of the Center, I was also fortunate to participate in the 2004 Internet Law Program of the Berkman Center for Internet and Society of the Harvard Law School last May 2004. The website www.lawphil.net is fast becoming the leading repository of on-line legal resources and jurisprudence in the country. On a personal note, I also wish to commend the dedication and invaluable contributions of Arellano law students who compose the IT Law Society headed by Michael Vernon M. Guerrero. I recognize that their task

of helping the Center in the realization of its vision and various activities entails a lot of personal sacrifice considering the fact that almost all of them are working students, not to mention the rigors of their law studies. Very few people in our country realize how global developments in information technology have sharply increased during the last decade. The observation that information technology would affect the way people live is a certainty, and not a mere fallacious statement. As the demand for information technology increases, the need to address related legal concerns and issues also grow in the same proportion. Hence, there is no iota of doubt that the vision set by the law school in 1997 to produce technology oriented lawyers and professors appropriately responds to global trends. Expect the e-Law Center to be at the forefront in the realization of this vision. In this issue, the banner story is the electronic court (e-Court) project initiated by Senator Aquilino Pimentel Jr. in cooperation with Supreme Court Administrator Presbitero Velasco Jr. and Makati City Mayor Jejomar Binay.
The Philippine Quarterly IT Law Journal is the official publication of the eLaw Center and the IT Law Society of the Arellano University School of Law. It is published quarterly. Contributions to the Philippine Quarterly IT Law Journal express the views of their authors and not necessarily the views of the Arellano University School of Law. For subscriptions, contact: THE PHILIPPINE QUARTERLY It Law Journal e-Law Center 2/F Heilbronn Hall Arellano University School of Law Taft Avenue corner Menlo Street Pasay City 1300 Philippines Tels. +63 2 404-3089, 404-3090, 404-3091 http://www.arellanolaw.net itlawjournal@arellanolaw.net

The issue also carries an article on cyberterrorism, or as the author puts it: “Web as a Means of Destruction” (WMD). The recent decision of the US Supreme Court in the case of “Ashcroft vs. ACLU” on the constitutionality of the Child On Line Protection Act (COPA) is also discussed in this journal. The case presented a constitutional clash between the government’s right to regulate Internet content and the right of the people to free speech. For the legal web section, this issue features the website of the Philippine Supreme Court, accessible at www.supremecourt.gov.ph.

Editorial Board
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

Philippine IT Facts and Figures
Women’s Internet Usage
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C HAIRMAN Atty. Jaime N. Soriano, CPA, MNSA M EMBERS Ailyn L. Cortez Charilyn A. Dee Jhonelle S. Estrada Peter Joseph L. Fauni Carlyn Marie Bernadette C. OcampoGuerrero Michael Vernon M. Guerrero Ma. Cristina A. Ramos

in the Philippines

Women as % of Internet Users, 2000 Total Women Internet users in 000s Total number Internet users in 000s Internet users as % of total population Female professionals and technical workers as % of total Female literacy rates Source: 1 Hafkin and Taggart (2001)

51.0

76.5

150

0.6

65.1 94.3

Volume 1, Issue 2

©

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

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

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[ 1 ] E-Court

Management Information System Office (MISO) of the Supreme Court, gave as an example the examination of a child who was allegedly raped by her father or uncle. With the present procedure in our courts, the child will have to expose herself to an embarrassing and traumatic experience connected with the litigation of the rape case as she will have to narrate before the court the rape incident with the accused in front of her and with all the relatives and neighbors attending the hearing. "It is already such a trauma being a victim; you're all again a victim the second time when you have to narrate it in front of that kind of audience. For an adult, it is already traumatic. "what more for a child?" said Atty. Uy. Certainly, this is what the child witness room seeks to prevent-the traumatic effect on the child brought about by testifying in front of the judge, the accused and other people. Aside from the features mentioned above, the Ecourt will also have a website for dissemination of information to the public regarding the cases filed therein. Currently, the project is lodged before the Urban Development Division of the City of Makati- The division is preparing for the specifications of the facilities to be submitted to the procurement office of the Department of Budget and Management. Not a paperless court The MISO Chief clarified that the Ecourt project is not a court where

everything will be digitized so that it would be a paperless court. The project, as conceptualized, does not include a system that allows electronic filing of pleadings. "The concept of the E-court is to provide technological facility available now that is most cost-effective and yet will have significant impact on the courtroom," Atty. Uy said. As the project is intended to be implemented the soonest possible time, only those things that are workable in a short period were considered, placing special emphasis on the budget constraints. Doing a paperless court where everything is digitized requires solving a lot of other issues. First, a lot of rules have to be changed; Second, a paperless court in which everything is digitized has a huge funding requirement; Third, most of the judges in the trial courts do not want to read the text of the cases in the computer monitor. They still prefer to read them on paper. Most probably, therefore, despite the e-filing, judges would still ask to have the e-filed motions, pleadings and other orders and notices printed on paper. Taking these factors into consideration, a paperless court is not feasible at this point in time, according to the MISO Chief. Towards a digital court Optimistic as he is, Atty. Uy said that the High Court would probably start its initiative towards a paperless court in five years' time. However, he foresees that full automation of the courtroom will be selective at first.

Atty. Uy discussed the possible set-up of a paperless court. He said that big law firms would be allowed to enroll in the digital court system so that they will have an access to the system. There would be a virtual terminal wherein the documents (pleadings, motions, etc.) from the enrolled law firms will be sent to the Supreme Court and it will be the Supreme Court who will send the document to the trial courts. He said that for authentication purposes a centralized processing of documents must be had. Otherwise, there would be difficulties in the management of traffic and in the validation of the legitimacy of the law firm. Moreover, the MISO Chief stressed that it would be very expensive if the judiciary will install multiple servers lieu of a central processing office. With the country's dwindling resources, the judiciary will just have to make the best out of its finances. With the current efforts of the Supreme Court, the optimistic outlook of Atty. Uy, the assistance of the likes of Sen. Pimentel, and the cooperation of the local government units, full automation of the judiciary will soon be realized. There will be expediency in the disposition of cases. The rights of both parties will be observed. They will be accorded with protection from emotional harm. Justice will be the end in view. When that time comes, it will not just be a victory of a party in a case. Rather, it will be a victory of all the party litigants as the best interest of justice is served.
* Based on the interview with Atty. Ivan John Enrile Uy (MISO Chief, Supreme Court of the Philippines)

“MY HOPE IS TO PUSH THIS COMMON SENSE ALONG. I HAVE BECOME INCREASINGLY AMAZED BY THE POWER OF THIS IDEA OF INTELLECTUAL PROPERTY AND, MORE IMPORTANTLY, ITS POWER TO DISABLE CRITICAL THOUGHT BY POLICY MAKERS AND CITIZENS. THERE HAS NEVER BEEN A TIME IN OUR HISTORY WHEN MORE OF OUR ‘CULTURE’ WAS AS ‘OWNED’ AS IT IS NOW. AND YET THERE HAS NEVER BEEN A TIME WHEN THE CONCENTRATION OF POWER TO CONTROL THE USES OF CULTURE HAS BEEN AN UNQUESTIONINGLY ACCEPTED AS IT IS NOW.” (PROF. LAWRENCE LESSIG, IN HIS BOOK “FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY.”)

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Features

IS THERE SUCH A THING AS WMD?
THE WEB AS A MEANS OF DESTRUCTION: THE SUPPOSED THREAT OF CYBERTERRORISM
By Michael Vernon M. Guerrero

C
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

Cyberterrorism

yberterrorism, as a compound word, simply suggests the convergence of cyberspace and terrorism. Cyberspace is the nonphysical terrain created by computer systems, [ 1 ] or that it is the “virtual world,” i.e. the “symbolic – true, false, binary, metaphoric representations of information – that place in which computer programs function and data moves.” [ 2 ] Terrorism, on the other hand, is the unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons, [ 3 ] or simply as the systematic use of violence as a means to intimidate or coerce societies or governments. [ 4 ] Construing the term cyberterrorism in a manner similar to the simple arithmetic of one plus one may mislead people to think that making a terrorist organization active on the Internet, through website postings and chatroom recruitments, would already constitute cyberterrorism. The term must be distinguished from mere activism in the manner the latter is being pursued over the Internet. Cyberterrorism is generally understood as the unlawful attacks and threats of attack against computers, networks, and the information stored therein when done to intimidate or coerce a government or its people in furtherance of political or social objectives. [ 5 ] Emphasis is made on the phrase “to intimidate or coerce,” a degree further than to merely “influence” a government or its

people, however subtle the difference may be in certain cases. This distinction is important in differentiating cyberterrorism from the growing phenomenon of hacktivism. It has been likewise suggested that the definition of cyberterrorism is that of “the premeditated, politically motivated attack against information, computer systems, computer programs, and data which result in violence against noncombatant targets by sub-national groups or clandestine agents.” [ 6 ] This narrow definition is premised on the definition of terrorism provided by the United States Department of State, [ 7 ] and aims to differentiate itself from other computer abuses such as economic espionage and information warfare, which are deemed “legitimate” offensive and defensive functions of governments. In sum, whether or not governments are excluded from the definition of cyberterrorism, what is apparent is that for an attack to qualify as that pertaining to cyberterrorism, it should result in violence against persons or property, or at least cause enough harm to generate fear. [ 8 ] Attacks involving computer systems that lead to physical injury or death, massive disruption of public utilities, or severe economic loss would constitute cyberterrorism. On the other hand, expensive nuisance or disruption of non-essential services will not qualify as cyberterrorism. Who is a terrorist anyway A terrorist is one that engages in acts or an act of terrorism, [ 9 ] or a radical who employs terror as a political

weapon. [ 10 ] The term, however, is so indiscriminately used that one who possesses firearms or explosives, and having an adverse political opinion, would easily qualify as a terrorist. The prevalent situation, wherein governments are the ones active in labeling organizations and individuals as terrorists, subtly suggests that governments and their agents are excluded as actors of terrorism, and which, of course, is erroneous as governments themselves are capable of intimidating or coercing societies. [ 11 ] An accurate definition of terrorism and terrorists has remained debatable, as the circumstances involving it are extremely complex and highly political. It is not unusual thus that, for example, a Palestinian organization such as the Hamas is considered a terrorist organization by Israel and the United States for deploying suicide bombers against the Israeli population, while Palestinians consider Israel as a terrorist state for committing alleged atrocities against their people and assassinating key militant leaders such as the late Hamas leader Abdel Aziz Rantisi. [ 12 ] Further, the statement “One man’s terrorist is another man’s freedom fighter” reflects genuine doubt about the contemporary, else the statesuggested, understanding of the term “terrorist.” Strong disagreements, as to the labeling of the Jewish group “Irgun Zeva’i Le’umi” (abbreviated as Etzel; Palestine, 1940s), the Viet Cong (South Vietnam, 1950s), the Provisional IRA (Northern Ireland, 1960s), and the African National Congress (South Africa, 1980s) as terrorist organizations, have been made in the past. As the matter relates to the Philippines, the Abu Sayyaf

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

Group (ASG) and the Communist Party of Philippines/New People’s Army (CPP/NPA) are listed as terrorist organizations by the United States Department of State. [ 13 ] A Philippine communist guerilla would insist, of course, on the validity of his struggle. What CyberTerrorism is not Internet-aided Activism. This is the normal, non-disruptive use of the Internet in support of an agenda or cause, and in fact, utilizes the Internet as a tool to communicate and coordinate action. Activists may be able to locate official policy statements, analyses, discussions, and other documents and items related to their mission. They can publish information, and disinformation, posted in their website or in newsgroups, or distributed in emails. They may participate in dialogue and debate on policy issues through e-mail, newsgroups, web forums, and chat. They may use the Internet to coordinate action among members and with other organizations and individuals. They may also pursue direct lobbying of decision makers. It is, however, observed that the Internet is not currently an adequate tool for public political movement as the more successful organizations are those who utilize traditional advocacy methods, including the use of the more expensive broadcasting media to reach the public. Terrorists groups likewise pursue the activities of cyberactivism, as their activities are in fact an activism of the extreme kind. They put up their websites to air their propaganda, recruit supporters, communicate and coordinate action. Their use of the Internet is ancillary only to their usual, if not violent, activities. To note: a. The Hizbullah operates its own website (www.hizbollah.org) b. In 1996, Bin Laden’s headquarters in Afghanistan was equipped with computers and communication equipment.

c.

Hamas activists have been said to use chat rooms and emails to plan operations and coordinate activities.

Hacktivism. It is the marriage of Hacking (or aptly Cracking) and Activism. Hacktivism is, in essence, electronic civil disobedience, which methods includes virtual sit-ins and blockades, automated e-mail bombs, web hacks and computer break-ins, and computer viruses and worms. A virtual sit-in or blockade is made possible by the use of “hacking tools” by a sizable number of individuals against a particular website, such as by saturating the target server with network packets, among others, for the purpose of calling attention to the cause of the protesters by disrupting normal operations and blocking access to facilities. E-mail bombing is done by bombarding a recipient with thousands of messages at once, distributed with the aid of automated tools. Web hacks or Computer break-ins, which are rather common, are done by gaining access to websites and replacing some of the content with their own, or by tampering with the Domain Name Service so that the site’s domain name resolves to the IP address of another site. Lastly, computer viruses and worms have been used to spread protest message and/or cause serious damage to target computer systems. Hacktivism methods such as web hack and email bombing were used extensively during the Kosovo conflicts by both Serbs and Americans citizens, with Chinese nationals following suit attacking American websites after the accidental bombing of the Chinese embassy in Belgrade at that time. Chinese and Taiwanese hackers exchange web hack attacks in 1999 following Taiwan’s president statement that China must deal with Taiwan on a “state-to-state” basis. The use of hacktivism methods, however, are not exclusive to unarmed individuals and organizations. It must be noted that:

a. In 1998, the ethnic Tamil guerillas swamped Sri Lankan embassies with emails with messages that read “We are the Internet Black Tigers and we’re doing this to disrupt your communications.” The volume of the emails sent was 800 emails a day for a period of two weeks. b. A file transfer protocol site operated by the Arkansas Highway and Transportation Department was turned into a repository of Osama bin Laden videos, jihadist songs and terrorist incident videos in July 2004. Links to those files then were posted at al Ansar, a radical Islamist Web site. The Supposed CyberTerrorism Threat of

Some security experts believe that CyberTerrorism is an unsettling reality due to the convergence of the physical world and the virtual world. Barry C. Collin of the institute of Security for Security and Intelligence (Stanford University) outlined the various possibilities in which a cyberterrorist may attack: (1) a cyberterrorist will remotely access the processing control systems of a cereal manufacturer, change the levels of iron supplement, and sicken and kill the children of a nation enjoying their food; (2) a cyberterrorist will place a number of computerized bombs around a city, all simultaneously transmitting unique numeric patterns, each bomb receiving each other’s pattern; (3) a cyberterrorist will disrupt the banks, the international financial transactions, and the stock exchanges; (4) a cyberterrorist will attack the next generation of air traffic control systems, and collide two large civilian aircraft; (5) a cyberterrorist will remotely alter the formulas of medication at pharmaceutical manufacturers; and (6) a cyberterrorist may decide to remotely change the pressure in gas lines, causing a valve failure, and a block of sleepy suburb detonates and burns. [ 14 ] Mark M. Pollitt of the FBI

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

Laboratory challenges the plausibility of Collin’s scenarios inasmuch as there is sufficient human involvement in the control processes used today. In the cereal plant scenario, the quantity of iron that would be required for the cereals to be toxic is substantial that assembly line workers would notice in as much as the assembly line would run out of iron sooner or later. In the air traffic control scenario, pilots are trained to be aware of the situation and operate even without the assistance of air traffic controllers at all. [ 15 ] Further, in the computerized bomb scenario, there is doubt for terrorists to deploy sophisticated bombs, which are dependent on complex systems and other technical considerations, to replace crude homemade bombs, which are easier to deploy. On the other hand, the gas lines scenario may be an apparent threat, inasmuch as there are unconfirmed reports of an instance where hackers, in collaboration with an insider, were said to have a used a Trojan horse to gain control of the central switchboard of Gazprom, the Russian state-run gas monopoly and the largest natural gas producer and largest gas supplier to Western Europe, which controls gas flows in pipelines. [ 16 ] Notwithstanding this isolated instance, most critical utilities and sensitive military systems enjoy the most basic form of Internet security, i.e. that they are “air-gapped” or in other words are not physically connected to the Internet and are therefore inaccessible to outside hackers. It would be a leap of imagination to consider the immediate possibility of a hacker to control computers that would launch nuclear weapons, or to hijack satellite systems or other high-consequence assets. It would also be a leap of imagination to consider the contamination of water supply and explosion of chemical factories, tasks which are harder to do physically, can be made instantly just because of the prominence of the Internet. [ 17 ]

The bottom line remains that there has been no instance of anyone ever having been killed by a terrorist using a computer. There has been no evidence that any terrorist organization has resorted to direct use of computers and computer networks for any sort of serious destructive activity. At this time, the concept of cyberterrorism as a reality is in the same level of the phantom of weapons of mass destruction that are supposed to be developed and stashed in Iraq. Cyberterrorism is not an immediate reality. Focusing on the real threats Dismissing the immediate threat of cyberterrorism, however, does not warrant complacency. Terrorism is as real as computer crimes are. Although they are experienced independently, these problems need to be addressed. Citizens have to be protected, economic loss should be prevented, and negligence should be abated. The protection of critical utilities or infrastructure – telecommunications, banking and finance, electrical power, oil and gas distribution and storage, water supply and sewage, transportation, emergency services, and government services – for one, must be protected from attacks, whether the source of such attacks has a political agenda or not. In the past, there have been prominent computer-aided attacks on critical utilities, some of which are: a. Water supply and sewage. In April 2000, a disgruntled consultant-turned-hacker in Maroochy Shire, Australia compromised a waste management control system and loosed millions of gallons of raw sewage on the town. The former insider tried to unleash the waste in 46 tries, with the personnel

managing the infrastructure failing to detect the first 45 tries. b. Transportation. In 1997, a hacker shut down the control tower services as the Worcester, Massachusetts airport. Although it did not cause any accidents, services were affected. c . Emergency services. In the United States, in 1997, a Swedish hacker jammed the 911 emergency telephone system throughout west-central Florida. A Louisiana man made a similar act in 2002 by tricking a handful of MSN TV users into running a malicious e-mail attachment that reprogrammed their set-top boxes to dial 911 emergency response. He was arrested February 2004 and was charged with CyberTerrorism. d. Government services. In 1998, several government and university websites received “denial of service” attacks, preventing servers from answering network connections and crashing computers. This has been a common occurrence in the past years. On the other hand, also in 1998, the US Defense Department’s unclassified networks were penetrated, allowing hackers to access personnel and payroll information. It is thus necessary that computer asset managers should be aware which systems should be “air-gapped” from other networks to prevent the risk of intrusions by unauthorized personnel, if not crackers, or loosely, hackers. Precaution should be taken as to issues of security vis-à-vis new technology that may deployed, including those pertaining to wireless technology. Public policy should be clear as to the minimum standards required in the maintenance of computer systems in
>> [24] Is there such a thing as WMD?

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Features
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

INTERNET DECENCY REGULATION
By Jaime N. Soriano

VS.

FREE SPEECH

(THE US CASE OF ASHCROFT VS. ACLU)

O

n June 29, 2004, the US Supreme Court upheld the ruling of the Court of Appeals for the Third Circuit enjoining the enforcement of the Child Online Protection Act (COPA) because the law "likely" violated the free-speech clause of the First Amendment of the US Constitution. The decision was reached by the High Court in the case of Ashcroft, AttorneyGeneral v. American Civil Liberties Union, et. al. (No. 03-218) in a narrowly divided vote of 5-1. Factual Antecedent Alarmed over the exposure of minors to sexually explicit materials in the Internet, US Congress enacted the Communications Decency Act of 1996. This law sought to penalize persons and organizations that knowingly transmit or display obscene or indecent materials and messages to minors over the Internet. In a constitutional challenge posed by the American Civil Liberties Union in the case of (521 US 844), the US Supreme Court in 1997 struck down this law for violating First Amendment. The Court argued that the law was not narrowly tailored to serve compelling governmental interest and other regulatory alternatives, that are least restrictive, are available. With the constitutional nullity of the Communications Decency Act, the US Congress, a year later, enacted COPA also in response to the clamor against Internet pornography. The law imposes a hefty fine and six months imprisonment for knowingly posting website contents for commercial purposes that are harmful to minors.

The law also provides for an affirmative defense to commercial web speakers who restrict access to harmful materials by requiring the use of credit cards and other measures feasible under available technology. In determining whether or not an Internet material is harmful to minors, the law calls for the application of the following standards: (i) contemporary community standard test, (ii) depictions of sexual act or exposure of sexual organs, and (iii) the lack of serious literary, artistic, political or scientific value for minors of the web content taken as a whole. Expectedly, civil libertarians also submitted COPA to judicial scrutiny. In February 1999, a US District Court for the Eastern District of Pennsylvania issued an injunction preventing the government from enforcing the law. The District Court held that COPA was invalid because there is no way to prevent minors from harmful material on the Internet without also burdening adults from access to protected speech. Restricting access through credit cards or adult access codes as affirmative defense would unduly burden free speech. The court likewise found that government failed to prove that the law was the least restrictive means available to achieve the public goal of restricting harmful materials to minors in the Internet. On appeal, the Third Circuit Court of Appeals affirmed the findings of unconstitutionality of COPA by the Federal District Court but on a different ground, The appellate court anchored its ruling on the fact that the contemporary community standards

test' provided for by the law would essentially require web content to abide by the most restrictive community standards given the peculiar geography-free nature of cyberspace. The standard imposed by the law was unconstitutionally overbroad, according to the appellate court. In a petition for certiorari filed in 2001 , the US Justice Department asked the US Supreme Court to reverse the decision of the Third Circuit Appellate Court affirming the ruling of the Federal District Court in Pennsylvania. On May 13, 2002, the Supreme Court, without making any categorical ruling on the constitutionality of COPA, rendered judgment holding that the "contemporary community standard" test, standing alone, is not unconstitutionally overbroad. The High Court emphasized that its decision was limited on that narrow issue. At the same time, it ordered the appellate court to decide on a wide range of First Amendment issues posed by the law and determine whether the District Court was correct in granting preliminary injunction in the enforcement of COPA. On remand, the Third Circuit Court of Appeals, on March 6, 2003, affirmed its earlier decision finding COPA in violation of the First Amendment because it denied access to online speech that is legally permissible for adults. The appellate court also held that the law was not the least restrictive approach available to government to serve the interest of preventing minors from using the Internet to gain access to indecent materials.

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Consequently, the US Supreme Court was called upon to review the constitutionality of COPA for the second time. The Majority Ruling It can be recalled that COPA was enacted a couple of years after its predecessor-statute, the Communications Decency Act of 1996, was declared unconstitutional for violating the constitutional dictum on free expression. Thus, the majority opinion written by Justice Kennedy, and joined by Justices Stevens, Souter, Thomas, and Ginsburg, began with the following declaration: "The imperative of according respect to the Congress, however, does not permit us to depart from well-established First Amendment principles. Instead, we must hold the Government to its constitutional burden of proof." The Court, in this case, further explained by saying that the US Constitution "demands that contentbased restrictions on speech be presumed invalid, and that the Government bear the burden of showing their constitutionality. This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question."
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

statute was enacted to serve.' xxxx When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute."' (citation omitted) The High Court noted that the Federal District Court granted the preliminary injunction on the pretext of the proposition that other alternatives, less restrictive and more effective than COPA, are available to restrict children's access to indecent materials. These alternatives include the so-called "blocking and filtering software". Filters are less restrictive than COPA because they "impose selective restrictions on speech at the receiving end, not universal restrictions, at the source". Filters restrict minors from all sorts of pornography, not only from American websites. If COPA were upheld, filtering software would diminish its effectiveness because content providers would simply move their operations overseas, beyond the jurisdiction of American courts. While filters are not the perfect solution to the problem being addressed by COPA, the Court observed the failure of government to show proof that the mechanisms provided for under the law is less restrictive than available filtering technologies. The Supreme Court also took note of the findings of the Federal District Court that verification systems, like credit cards and access code, may be the subject of evasion and circumvention, even by the minors themselves. In fact, the Congressional Commission on Child Online Protection indisputably found that filters are more effective than age verification methods in limiting minors from accessing Internet pornography. Hence, COPA failed the "least restrictive alternative" test to justify a limitation on the exercise

of free speech under the First Amendment. In allowing the preliminary injunction to stand, pending a full trial on the merits by the District Court, the Supreme Court was concerned about the potential and extraordinary harm the law posed on protected speech. Despite the availability of affirmative defense to possible violators, the Court observed that web speakers would likely resort to self-censorship than risk the perils of criminal prosecution. The majority of the highly divided court recognizes however that the factual circumstances of the case may not reflect current technological realities. And this is a serious flaw in any case involving the Internet, as this technology evolves at a rapid pace. The factual findings of the District Court were made five years ago, in 1999. In maintaining the preliminary injunction and remanding the case for trial on the merits, the parties to the case would be given ample opportunity to update and supplement their respective facts to reflect present-day technology, and allow the District Court to decide the case based on the current legal landscape. On remand, the Supreme Court does not discount the possibility that government may be able to prove the constitutionality of COPA as the least restrictive alternative available to satisfy its legislative imperatives. The Dissenting Opinion In his dissenting opinion, Justice Scalia finds the COPA constitutional and should not be subject of an exacting standard of review. Since the law punishes only violators of commercial pornography in the Internet - a form of business activity that could be banned entirely consistent with the provisions of the First Amendment COPA does not raise any constitutional concern.

To uphold the constitutionality of a statute that regulates free speech, like COPA, the Supreme Court, reiterating the doctrine it laid down in Reno vs. ACLU, said: "A statute that 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another . . . is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the

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Justices Breyer, O'Connor, and Chief Justice Rehnquist also departed from the majority opinion but agreed with the majority that the law should be subjected to the "most exacting scrutiny". They argued that the "least restrictive alternative" test is a comparative term that cannot be satisfied without examining "both the extent to which the Act regulates protected expression and the nature of the burdens it imposes on that expression". The dissenters argued that in the first place the Internet materials classified as legally obscene does not enjoy the mantle of protection of the First Amendment citing the landmark case of Miller vs. California (413 US 15). The opinion also noted that the law does not censor, in fact, the materials within its ambit but merely requires web providers, of content considered harmful to children, to limit access through a verification screen. The minority justices also find that the presence of the filtering system is not an alternative legislative approach to the problem of protecting minors from commercial pornography. This system is part of the status quo when Congress enacted COPA. And by definition, status quo is always less restrictive than a new regulatory law for it "is always less restrictive to do nothing than to do something". They concluded that filtering software, as presently available, does not solve the problem COPA seeks to address. It is precisely the inadequacies of the filtering system that prompted Congress to pass the law rather than rely on its voluntary use. The obvious fact is - that despite the existence of this blocking and filtering software, Internet pornography continues to proliferate. The dissenting view also attacked the "less restrictive alternatives" propounded by the majority calling on the government to encourage the use of blocking and filtering software. The

result might be an alternative that is extremely effective but in the process, will tax heavily on government resources. Thus, there is no other less restrictive way to advance the compelling interest to protect minors from Internet pornography. Hence, COPA should be viewed as constitutional within the framework of the First Amendment. All told, the minority justices of the Supreme Court do not see any compelling and logical need to remand the case to the District Court for the reception of additional evidence. Impression The ruling of the US Supreme Court did not actually put an end to the nagging constitutional issue of whether or not the Child Online Protection Act (COPA) violates the free speech clause of the First Amendment. As stated in the opening statement of the opinion of the Court: "We must decide whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. (italics supplied) From this perspective and with the remand of the case to the District Court for trial on the merits, it is certain that the US Supreme Court would be finally pass judgment on the law for the third time sometime in the future. It appears from the court decision that the constitutional permissibility or impermissibility of the law hangs on the balance based on the evidence that would be presented before the District Court on the "least restrictive alternative" test. The final determination on the constitutional challenge to COPA could still go either way.

The Internet is a new form of mass media that obviously fits within the framework of constitutionally protected speech in a democratic space. In this jurisdiction, the Bill of Rights 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." Since cyberspace is not defined by any territorial boundaries the most serious challenge to governments all over the world is how to regulate and exercise jurisdiction over Internet activities that serve as avenues for the commission of crimes, and destroy the basic social norms and values of society like pornography or obscenity. To a certain extent, the Internet may capitulate the state's traditional exercise of police power unless governments act together to address this issue in unison, through treaties and international covenants. Some has maintained the view that this state regulation is unnecessary and will only hamper the full development of information technology to serve the ends of society. Their view is to allow the advent, and look forward to the introduction, of new technologies that would effectively deter the use of the information superhighway in the commission of illicit, illegal, immoral or even plainly unacceptable web practices, an act of self-regulation. The constitutional challenge on COPA, beyond the clash between a compelling state interest to shield minors from pornography and the freedom of adults to free expression, is also a reflection on who should, and can adequately, regulate the Internet: state laws or technology itself.

9

Features

FEE? FROM FREE TO FEE?
by Ailyn L. Cortez

The only matters certain in life are death and taxes, says an old adage.

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

Taxation in the Philippines overnments make exactions for revenue in order to support their subsistence and execute their indisputable and genuine objectives. The underlying tone of taxation is governmental necessity, without it government can neither exist nor endure. "Taxes are the lifeblood of the government and their prompt and certain availability are an imperious need." [ 1 ] As noted by Justice Vitug (2000), this phrase has often been used to justify the need for summary remedies in the collection of taxes. To borrow the words of Cooley, as cited by Justice Vitug (2000), the power to tax "reaches to every trade or occupation, to every object of industry, use or enjoyment, to every species of possession; and it imposes a burden which, in case of failure to discharge, may be followed by seizure or confiscation of property. No attribute of sovereignty is more pervading and at no point does the power of the government affect more constantly and intimately all the relations of life than through the exactions made under it. [ 2 ] At present, e-commerce transactions within the Philippines are not taxed. Since the total value of such business is still small, however, closing this loophole is not yet a priority for the government... not just yet. Internet The term Internet means collectively the myriad of computer and telecommunications facilities including equipment and operating software, which comprise the interconnected world-wide network of networks that

employ the Transmission Control Protocol/ Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio. [ 3 ] Indeed, it is a network of networks. John Gage, as cited by Lallana (2003), argues that - "The Internet is not a thing, a place, a single technology, or a mode of governance: it is an agreement. In a language of those who build it, it is protocol, a way of behaving. What is startling the world is the dramatic spread of this agreement, sweeping across all arenas - commerce, communications, governance - that rely on the exchange of symbols." [ 4 ] The nature of Internet communication is decentralized where its use is limited only by imagination without any boundaries in mind; it does not follow a exact, conventional or uniform pathway. As such, the Internet has become the fastest growing medium. In a country comparison of Internet posted by CIA World Factbook, the Philippines ranked 20 with 4.5 million Internet users as of 2003. Hence, revenue authorities see the new golden goose that lays the golden eggs of the new millennium. Country 1. United States 2. Japan 3. China 4. United Kingdom 5. Germany 6. Korea, South 7. Italy 8. Russia 9. France 10. Canada 11.Brazil 12. Taiwan Internet users 165,750,000 56,000,000 45,800,000 34,300,000 32,100,000 25,600,000 19,250,000 18,000,000 16,970,000 16,840,000 13,980,000 11,600,000

13. Australia 14. Netherlands 15. Spain 16. India 17. Poland 18. Sweden 19. Malaysia 20. Philippines

10,630,000 9,730,000 7,890,000 7,000,000 6,400,000 6,020,000 5,700,000 4,500,000

Source: CIA World Factbook Unless otherwise noted, information in this page is accurate as of January 1, 2003 Taxation and the Internet E-commerce means any transactions conducted over the Internet or through Internet access, comprising the sale, lease, license, offer or delivery of property, goods, services, or information, whether or not for consideration, and includes the provision of Internet access. [ 5 ] With the explosion of e-commerce, it is understandable why the government has been grappling to extend its collection arm in the Internet. In 2001, the Department of Finance of the Philippines announced that it would be reviewing the possibility of taxing ecommerce transactions. Indeed, an interesting business. But how it is taxed? By whom and where? A complex matter with complex issues to resolve. In Internet Transactions, the primary device used for Internet commerce is the World Wide Web Page. The World Wide Web can be simply defined as a multimedia interactive portion of the Internet, which visually resembles a catalogue or brochure and provides a presence for its operators on the Internet. The best comparison may be to an international telephone directory

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

combining both white and yellow pages. The main difference, however, is that once a user finds an entry that interests him, he may then retrieve more detailed information by following electronic links to other related pages. A common transaction on the Internet is the downloading, or retrieval, of software from a computer located in another country. A user begins the process by using a "directoryassistance"-like search tool to find pages that fit his search parameters. Once a suitable entry is selected, the user clicks on it and his computer goes to that page. The user will usually then find a text and graphical environment where for example, software products are described and offered. The final step when the user requests a program, for example a or business application, and it is sent, usually in minutes, right to the user's computer. If the operators of a given Web site charge for a product or service, a credit card or other electronic payment system may be used. [ 6 ] Clearly, consumers are getting a ride on sales tax from online purchases at no cost. Perhaps, they are reaping the benefits of a of a temporary tax haziness that needs a well-structured system to eradicate ambiguity. Easier said than done. The difficulties arise because most tax laws and regulations were passed before the beginning of electronic commerce. Such laws and regulations are rooted in concepts of physical location or presence. Determining where the transaction is sited and identifying key taxing points are often important to the administration of taxes. Then again, the intricacies revolving around the Internet poses a difficult issue in identifying the key taxing points of Internet transactions. While tax compliance relies on such geographical restrictions, such may not exist in the cyber world to identify key taxing points. Indubitably, the multifaceted nature of Internet and ecommerce makes Internet taxation an extremely complex and compound

matter. Hopeless to find new sources of income, a taxman should defy the lure of saying: "Tax the Internet now, ask questions later." Opposing Views on Internet Taxation * Positive. The first group views that taxing the Internet is just and reasonable. For them, the idea of exempting Internet transactions from taxes is illogical. No discrimination can be had between an online and brick-and-mortar business. To allow otherwise would be equivalent to granting such business a clear tax subsidy. Moreover, they are convinced that the online retail market will soon account for sizable chunk of national revenue. This is evidenced by the growing trend in Internet and online business activities. Hence, failure to take advantage of this will mean lost revenues for the government. Negative. The second group believes that a free market on the Internet will encourage commerce to exploit this innovative means of exchange instead of the traditional system. Internet is too young and fragile a medium for its derived profits to survive the complex web of national and local taxes. Merchants who utilize this mode of transaction are anxious of the complex collection system that might be compulsorily incorporated in their existing process. Moreover, the vulnerability of Internet transaction should not be opened to the elements of taxation as this would discourage people from bringing into play this revolutionary method. As a consequence, it will accelerate the technological advancement and intensification of the Internet. To put it simply, this group considers Internet taxes would significantly jeopardize the growth of e-commerce.

Proposals of Taxing the Net The primordial consideration in Internet Taxation is the type of tax that would be utilized. Here are some proposals in taxing the net. Bit Tax. The term bit tax means any tax on electronic commerce expressly imposed on or measured by volume of digital information transmitted electronically or the volume of digital information transmitted electronically or the volume of digital information per unit of time transmitted electronically, but does not include taxes imposed on the provision of telecommunication services. [ 7 ] The proponent of the bit tax is Arthur Condell, a Canadian economist. As quoted by Atty. Jovi Tanada Yam, "whether the digital bit is part of a foreign exchange transaction, a business teleconference, an Internet email or an electronic check clearance, each bit is a physical manifestation of the New Economy at work. Thus, the new wealth of nations is to be found in the trillion of digital bits of information pulsing through global networks." [ 8 ] It represents a new tax base that is at the heart of the new economy. It is also a new tax base that is growing. It is a tax base that can be easily identified, one where collection is in few hands. In the New Economy, it would be a tax that is difficult to avoid. [ 9 ] Soete's Tax proposal. The advocate of this proposal is Luc Soete, an economist who served as chairman of a European Commission advisory panel on information technology issues. His idea is to tax cyberspace bit by bit. He says that "the new tax base for Internet commerce is to be found in these fast moving bits. We need to adjust the taxation forms to make sure they will include these new Internet activities." [ 10 ] The suggested bit tax is a turnover on interactive digital traffic. "Moving from the old highway to the metaphor of a new highway, Soete's proposal is to tax the digital traffic on the Information Highway. Whether the tax is levied an the traffic carried by a

*

11

fiber optic cable or on microwave or whether the tax is levied on interactive satellite traffic, the bit tax presents a way of accessing the new wealth being created by the New Economy." Soete suggested the tax rate to be .000001 US cents per bit, or about one US cent per megabit. Soete contrasted the bit tax to the VAT: "The main consumption and production tax levied in the European countries is the VAT. VAT allows material goods and services to be taxed at their various points of production and value creation - in a way that is quite easy quantifiable." in cyberspace, Soete's bit tax would replace the VAT on immaterial goods and services. The idea is to levy taxes only as "a proportion of the intensity of the information transmission." The term "transmission" means the number of bits flowing across the wires, not their "transaction value." [ 11 ] Loopholes in these proposals. Soete's bit tax has been attacked on many aspects. At what rate should nations tax digital bits? How would the new taxes be collected? Critics raise a ruckus that a bit tax will prove injurious to the future of the Internet because it would be extremely expensive for consumers to pay the bit tax. At Soete's rate of one cent per megabit, you can just imagine that cost of downloading a two-hour movie with a transfer rate of two megabytes-per-second. Besides, the cost of the procedure and technical means for collecting such a tax would likely be higher than the revenue, especially as micro-payments for minuscule chunks of information become commonplace. Moreover, some technologies - like satellite communication - simply make it impossible to monitor bitstreams. On the political front, the bit tax was temporarily rejected by the European Union. Soete admitted that "the core goal of the European Union policy is to accelerate the diffusion of information technology in Europe. And any idea that could slow down investments and growth in this areas being rejected - just because it comes at the wrong time." The European

Union has joined the US, Japan and other like-minded countries in keeping the Internet duty-free, until the dust of cyberspace settles. [ 12 ] Internet Taxation in the United States President William J. Clinton signed the Internet Tax Freedom Act on October 21, 1998. On November 28, 2001, President George Bush signed into law a two year extension to the ITFA. It is an act that imposed a three-year moratorium on new taxes on Internet access fees. The main goal of this act was to prohibit new taxes from being levied on the using the Internet, such as those paid by customers of America Online. [ 13 ] Sales Tax or Use Tax. The term sales tax or use tax that is imposed on or incident to the sale, purchase, storage, consumption, distribution, or other use of tangible personal property or services as may be defined by laws imposing such tax and which is measured by the amount of the sales price or other charge for such property or service. [ 14 ] The current moratorium does not exempt an online transaction from a state's sales tax. The moratorium has never been on sales taxes- that is a misnomer. The moratorium is on new taxes. [ 15 ] If a state in its exercise of taxing authority chooses to levy a sales tax, that liability exists without regard to the medium used to make the purchase (in person, by telephone or mail, or online). If the business does not meet the constitutional test of a substantial physical presence in a states that would require the business to collect and remit the sales tax to that state then consumers in those states that impose sales taxes who make purchases from out-of-state businesses are liable to pay a use tax on those purchases. [ 16 ] Nexus Rule. Nexus refers to the physical presence - such as a sales force, distribution center, or a

warehouse - a retailer must have in a consumer's state to be required by that state to collect sales taxes. The US Supreme Court in Quill Corporation v. North Dakota, [ 17 ] pronounced that in order for an outof-state company to collect sales taxes from another state, physical presence (nexus) requirement must be established. This means that any taxes levied on Internet sales must be the same as those levied on the same sales if they occur in a physical store or through mail order. A state may not, for example, assess one tax rate for merchandise that is purchased in a physical store while levying another tax rate for the same merchandise purchased through the Internet. The Internet Tax Freedom Act proscribes this. To have a nexus, a company must have a store, office, warehouse or a salesperson in That locality. Purposes of ITFA. The Internet Tax Freedom Act moratorium prevents states from enacting discriminatory taxes on online sales. For instance, under the moratorium, a state is prohibited from charging a new or higher tax on online sales that is not likewise levied on sales achieved offline. [ 18 ] As pointed out by Bick (2000) another purpose of the Internet Tax Freedom Act is to prohibit double or multiple taxation of a single transaction. For example, if the buyer of a product must pay taxes on the purchase and the seller of the same product must pay taxes on the sale to that particular buyer, this is a multiple tax and is prohibited by the Internet Tax Freedom Act. Another example would be if an e-vendor is located in a state that sources such income to the state and taxes it where the income-producing activity occurred, and sales are made to a jurisdiction that sources such income to the state where the benefit is received and taxes levied, double taxation is possible on the same transaction. [ 19 ]

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

To give effect to the purposes of ITFA, the establishment of Advisory Commission on Electronic commerce was convened. Advisory Commission on Electronic Commerce (ACEC). The Internet Tax Freedom Act established the commission to study the application of taxes to e-commerce and telecommunications. The commission was composed of three federal, eight private, eight state and local government representatives, including Utah Gov. Michael O. Leavitt, Virginia Gov. James Gilmore, and Washington Gov. Gary Locke. The commission sent a report to Congress on April 12, 2000, but failed to reach the required supermajority (two-thirds) to make findings and make recommendations. The commission refused to accept a "minority" report from Gov. Leavitt on behalf of state and local government representatives. [ 20 ] The goal of the commission was to study the issues surrounding Internet taxation and report back with a formal recommendation. At the heart of the controversy are sales taxes. Currently, states can't force an out-of-state business to collect them unless that business has a physical presence in state. The result is that when a purchase is made across state lines, sales taxes often aren't paid. Few states have made any real effort to collect those "lost" taxes directly. Instead, state and local officials want Congress to let them draft out-of-state firms as tax collectors. However, the commission was not able to secure the two-thirds vote needed to deliver a formal recommendation. Think Globally, Act Locally Everyone makes an effort to understand these complex issues. As correctly pointed out by Atty. Jovi Yam, "the best way all of us can help the Net grow is to work collaboratively on what the Net really needs: an uncomplicated infrastructure for fused, convoluted, cross-border Internet

Commerce. The tax issue is just one of many complicated questions." And until a simple principle can be propounded, that Internet businesses would be taxed no more and no less that they are in the physical world, if not, a moratorium on taxes should be declared. [ 21 ] In achieving this, global standards to prop up the Net should be established. Uniform Business Locator. One of the major problems facing tax authorities in the context of electronic commerce is that of the identify of the parties involved in commercial transactions. In consumer sales over the Internet, the parties may not be known to each other, lest it be via the company handling credit card transactions. In the use of digital money, the ability to trace transactions and identify those involved may be even more difficult. Knowing who you are dealing with is a right if not a necessity of the buyer. It is also necessary for fiscal accountability. To resolve this issue, Alan McCluskey (1998) proposed the Uniform Business Locator. This method uniquely identifies a business or trader and attributes that entity to a specific country. There would be some difficulties with attributing a company to a given jurisdiction. It remains to be seen if the definition of the domicile of a company is satisfactorily covered by current tax legislation and how one would deal with multiple domiciles. One might well need a system that catered for multiple mappings of a company to varying jurisdictions. UBLs would not need to be memorized as they are used essentially as handles to call up more detailed and readily understandable information from the database. As a result they could be randomly generated, unique alphanumeric strings except for the part designed to identify the country. The latter might easily be done using the current two letter ISO country codes. Subsidiaries or branches within a company could possibly be treated like subdomains of the UBL of the parent company.

For a moderate fee, registration with an online commercial registry could be done via the web. Companies or traders would be required to provide the necessary information such as the owner's name, his or her physical address, tax domicile, telephone number, fax number, e-mail address, web url and domain name. A UBL would then be attributed and would be required in all business transactions including credit card payments and bank transfers as well as for all dealings with tax authorities All UBL's would be contained in a planet-wide distributed database a bit like for the domain name system. Clicking on a UBL on a web page would call up a small window containing the entry for that company. The outstanding question with such a system would be that of the authentication of the company or trader concerned and the verification that the UBL provided by a web page or the trader's electronic caddy was really that of the trader in question. A part guarantee in the latter case could be provided by binding payments to the UBL - putting somebody else's UBL would lead to the money going to that other company. [ 22 ] Streamlined Sales Tax Project. This project is an effort by states, with input from local governments and the private sector, to design, test, and implement radically simplified sales and use tax system for the 21st century. Spearheaded by the National Governors Association, the Streamlined Sales Project would require participating states to have only one tax rate for personal property or services effective by the end of 2005. Included in those services would be online sales. [ 23 ] The goal of the Project is to substantially reduce or eliminate the costs and burdens of sales tax compliance for businesses through a combination of simplified laws and administrative policies and the implementation of a no-cost system for retailers. [ 24 ] Under the SSTP model legislation, states will develop uniform product

13

codes and sourcing rules, uniform definition of what is taxable, and simplify administration policies that are consistent with other participating states in the compact. This NGA-led project is seeking to standardize sales tax laws, making them e-commerce friendly. In November 12, 2002, a draft for the proposed subject was finalized and named Streamlined Sales and Use Tax Agreement. As such the US Supreme Court specifically left it to the Congress to "decide whether, when, and to what extent the States may burden interstate mail order concerns with a duty to collect. [ 25 ] Congress has the power to modify the existing physical presence standard on which businesses have relied since 1967 (National Belles Hess Inc. v. Department of Revenue Illinois 386 U.S. 753 (1967)) and provide the states with the authority to impose new collection responsibilities on out of state vendors. Neither the Constitution nor the Court imposes any limitation on Congress' power to regulate interstate commerce in this regard, and the business community urges the Congress to require meaningful simplification of the states' sales and use tax regime before undercutting the important bright-line standards on which businesses historically have relied. [ 26 ] Philippine Set-up. The Nexus rule exists because our own Supreme Court has said that the government has no authority to collect taxes from out of town merchants. Technically, the consumer is supposed to pay usage tax on any purchase in which the merchant has not collected sales tax. When you purchase items in a bricksand mortar store, you can pay any and all local and sales tax that apply to your purchase as part of the transaction. The business acts as a tax collector for the local governments". [ 27 ] If you purchase something through the mail, you pay taxes on the transaction only if you live in the same location as the retailer's

business establishment. However, if you do not live in the same location as the retailer, you do not pay taxes to that retailer for your state. [ 28 ] Following an online purchase, consumers are supposed to go to the Bureau of Internal Revenue Web site to fill out a form documenting their purchase, where they are charged a fee. [ 29 ] As for now, the government cannot demand outof-town merchants collect sales tax unless a company has a nexus, or physical presence within that locality. Conclusion In the Philippines, the basic question is to tax or not to tax On-line Transactions. Surely, the BIR is seeing a potential gold mine. However we should not discount the fact that E-commerce in the country is relatively young. It seems best that our government takes a back seat for a while and carefully scrutinizes the possibility of exploring the new heights of Internet Taxation. The Department of Finance should make a thorough study and investigation in dealing the complicated nature of Internet Taxation. Haste makes waste. If the Internet is seen as a tax panacea, the lack of legal framework to address the issues of Internet's technological leaps and bounds is a significant barrier to the advocates of taxing the Net. Why kill the goose that lays the golden eggs? A Well-developed tax policy in traversing the Information SuperHighway will definitely preserve the goose that lays the golden eggs without sacrificing the fundamental principles of sound tax system: Fiscal Adequacy, Administrative Feasibility and most importantly Theoretical Justice. Taxing the net should be fair to the average taxpayer. The notion of neutrality on online transaction should prevail because On-line commerce is not radically different from any other form of commerce, but also and above all, on the basis of their declared

intention the tax authorities should not bias market choices by their action. The following are the basic issues to be resolved by the Department of Finance in achieving a polished and welldeveloped scheme of taxing the net. 1. Auditing System. Business establishments issue receipts in every transaction. Pursuant to this receipts, the BIR can keep track of the operations of the business. With the advent of Internet Transactions, BIR should come up with the scheme of an efficient method of determining On-line transactions in lieu of the receipts issued in ordinary mortar and brick business. 2. Tax planning for E-business. Since most of our tax laws were enacted prior the advent of the Internet, a collaboration of the DOF IT experts , and businesses taking advantage of the NET will be an edge in devising a structure with the corresponding tax implications of the Internet Transactions. 3. Efficient Tax Strategy. In taxing Online transactions, the issue boils down into the efficiency of tax administration. It would be sheer idiocy to propose taxing measures in Internet transactions while BIR has been missing out in collecting the proper amount of revenue from other taxpayers. If the problem is the system, all tax measures are bound to fail. "There are no obvious solutions at this point, but there are many questions as to how to make future tax laws work. Many are concerned about the expense of developing a tool that would allow online merchants to convert the sales tax on purchase depending on the customer's whereabouts. Also, there are worries about the use of encryption technologies that could allow people and steer around a Net Sales tax. For now, e-commerce continues to grow
>> [25] From Free to Fee

The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

14

Jurisprudence in CyberLaw
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

A & M RECORDS, INC., ET AL. VS. NAPSTER INC.
239 F3d 1004 (9th Cir. 2001)

(This section will be a regular feature of the journal to highlight significant cases decided in the Philippines and in foreign jurisdictions relating to information technology) by Jhonelle S. Estrada Facts: Plaintiffs are engaged in the commercial recording, distribution and sale of copyrighted musical compositions. It was alleged in the complaint that NAPSTER is a contributory and vicarious copyright infringer. NAPSTER facilitates the transmission of MP3 files between and among its users, through a process called "peer to peer" file sharing. NAPSTER allows its users to: 1) make MP3 music files stored on individual computer hard drives available for copying by other Napster users; 2) search for MP3 music files stored on other user's computers; and 3) transfer exact copies of the contents of other users' MP3 files from one computer to another via the Internet. The NAPSTER's Music Share Software made these functions available without charge from NAPSTER's Internet site. The Plaintiffs claimed that NAPSTERS users were engaged in the wholesale reproduction and distribution of copyrighted works, all constituting Direct Infringement. They also claimed that NAPSTER, is secondarily liable for the Direct Infringement under two doctrines of copyright law: contributory copyright infringer and vicarious copyright infringement. NAPSTER on the other hand contends that its user do not directly infringe plaintiffs' copyrights because the users are engaged in the fair use of the material and that it doe not know of the direct

infringement Plaintiffs seek injunctive relief. Issue: Whether Napster can be held liable for direct infringement? Held: The evidence showed that majority of Napster users use the service to download and upload copyrighted music; acts that constitutes direct infringement of plaintiffs' musical compositions, recordings. It was also established that Napster users infringe at least two of the copyright exclusive rights; the rights of reproduction and distribution. Its contention that its users do not directly infringe plaintiffs' copyrights because its users are engaged in fair use of the material cannot be given weight. Several factors were considered to determine its defense of fair use of the material. These are 1. the purpose and character of the use, 2. the nature of the copyrighted material, 3. the "amount and substantiality of the portion used" in relation to the work as the whole; and 4. the effect of the use upon the potential market or the value of the work. The "purpose and character" factor focuses on whether and to what extent the new work is 'transformative' this factor also requires the court to determine whether the alleged infringing use is commercial or non-commercial. The court determined that Napster users engage in commercial use of the copyrighted materials. Direct economic benefit is not required to demonstrate a commercial use, but it is the repeated and exploitative copying of copyrighted works. The record shows that repeated and exploitative unauthorized copies of copyrighted works were made to

save the expense of purchasing authorized copies. The second factor also exist. Works that are creative in nature are 'closer to the core of intended copyright protection' It was determined by the court that the plaintiffs' 'copyrighted musical compositions and sound recordings are creative in nature', thus cuts against a finding of fair use under the second factor. Under the third factor, records show that Napster users engage in 'wholesome copying' of copyrighted materials because file transferring involves copying the entirety of the copyrighted work. The Effect of Use in Market shows that Napster use harms the market for their copyrighted musical compositions and sound recordings. Its defense of fair use is untenable. Issue [2]: Whether Napster can be held liable for direct infringement uncle r the doctrine of (a) contributory copyright infringement, or (b) vicarious copyright infringement. Held [2]: (a) "One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a "contributory infringer" Contributory liability requires that the secondary infringer "know or have reason to know of direct infringement. The records must show that NAPSTER has knowledge, both actual and constructive of direct infringement. Napster was proven to have actual knowledge when: l. a document authored by Napster co-founder mentioned 'the need to remain ignorant of users' real names and IP
>> [24] Jurisprudence in CyberLaw

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Features
NTERNATI TIONAL GAT GATS INTERNATIONAL E-TRADE: GATT VS. GATS
by Jaime N. Soriano

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· · ·
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

he 1948 General Agreement on Tariffs and Trade (GATT), now supported by more than 120 countries, led to the formation in 1995 of the World Trade Organization (WTO). GATT practices the following principles in international trade: Non-Discrimination: This is reflected in the Most Favored Nation Clause that, in essence, mandates a country granting a trade advantage or favor to one country to give that same advantage to all contracting parties. National Treatment: This means that imported goods are to be treated as if they were domestic products and any form of discrimination against them in favor of like national products, is prohibited. Transparency: This provides that trade measures should be made known to other contracting parties to ensure that the system of multilateral trade rules are in fact operating. All laws, regulations, and tariffs of member countries should be published and open.

General Agreement on Trade in Services (GATS), Agreement on Telecommunications Services (ATS) and the Trade Relation Aspects of Intellectual Property Rights (TRIPS). On 12 June 1996, the United Nations Commission on International Trade Law (UNCITRAL) adopted the "Model Law on Electronic Commerce" in furtherance of its mandate to promote the harmonization and unification of international trade iaw and remove unnecessary obstacles to international trade caused by inadequacies and divergence in the law affecting trade. The Model Law was prepared in response to a major change in the means by which communications are made between parties using computers or other modern technology in doing business. It also serves a guide for the establishment of relevant legislation in nations where none presently exists. In March 1998, the WTO released a study entitled: "Electronic Commerce and the Role of the WTO". The study examined the potential gains to international trade arising from the increased use of the Internet for commercial purposes. [ 1 ] The WTO study also contended that the Internet, as an Instrument for international trade, should fall under GATS. The study emphasized that it is not always clear from GATS how the market access and national treatment commitments of member countries cover the supply of Internet access services. A distinction should be made between the supply of Internet access services, and the supply of other services using the Internet as a medium of delivery: whether the supply is in the GATS or GATT regime. [ 2 ]

With the tremendous potential for growth in e-commerce and the new opportunities it creates in international commerce, Trade Ministers at the Second Ministerial Conference of the WTO in Geneva on May 20, 1998 have adopted a "Declaration on Global Electronic Commerce" to establish a work program to examine all trade-related issues relating to global electronic commerce. Member-nations also declared that they would continue their current practice of not imposing customs duties on electronic transmissions. WTO Director-General Renato Ruggiero Indicated at the Ottawa Ministerial in October 1998 that the goal of the WTO was not to create a set of new rules to govern the electronic marketplace, but rather to use existing frameworks already in place. He said that existing agreements such as the GATS, TRIPS and ATS are WTO agreements that already in one form or another deal with e-commerce related issues. [ 3 ] Certain exceptions are provided under GATS in relation to the GATT standards or principles. The member states can choose the services in which they make market access and 'national treatment' commitments. They can limit the degree of market access and the national treatment they provide. They can even take a limited exception even from the 'Most Favored Nation' clause obligation, for a period of ten (10) years. Use of quotas where government wishes to maintain limitations on market access are permitted, unlike in GATT. [ 4 ] In June 2000, the Asia Pacific Economic Cooperation (APEC) also agreed to a moratorium on the

Trade of goods dominated international trade when GATT was established. Much later, trade of services (such as transportation, travel, banking, insurance, and telecommunications) and trade of ideas (like inventions and designs) became important commodities of international commerce. In keeping with these developments, GATT was amended and updated into new WTO Agreements along side with the

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

imposition of customs duties on electronic transmission among member-nations. On November 14, 2001, a Ministerial Declaration was adopted during the Doha WTO ministerial meeting declaring "that members will maintain their current practice of not Imposing customs duties on electronic transmissions until the Fifth Session." In the United States, the thrust of the government with respect to electronic commerce is to ensure that trade over the Internet remains unimpeded. Thus, the United States has sought to keep cyberspace "duty free" -- that is, free from tariffs or customs duties on electronic transmissions (the data streams that constitute products and services in cyberspace). [ 5 ] A cyberspace free of customs does not mean that physical goods ordered over the Internet are free from customs duties. Nor does it mean that items ordered electronically are exempt from internal taxes. Duty-free cyberspace merely means that electronic transmissions corning from abroad are not subject to customs duties at the border. A delivery mechanism based on an open network, where borders are meaningless, imposing customs duties at the border would be a burden that would slow the growth of electronic commerce. [ 6 ] While no country currently imposes duties on electronic transmissions. the United States is the only WTO member that has formalized this commitment by specifying it in its tariff schedule. The United States is encouraging all WTO members to make a similar, internationally binding commitment. It has also urged member nations to

formally adopt the understanding that electronic commerce falls within the scope of existing WTO rules. This will ensure a predictable, trade-liberalizing environment, promote the growth of e-commerce, and create opportunities for trade for WTO members at all stages of development. [ 7 ] At the center of e-commerce trade dilemma is the definition of goods and services. There is a consensus that a book ordered online, but delivered physically, for the purposes of international trade rules, is considered as "goods". This concept Makes the book subject to the international rules for trade in goods, the GATT. However, when the same book is delivered electronically (by downloading it to the computer) there is no agreement whether this digital product should be treated as a good under GATT or a service, which would make it subject to a GATS regime. Not a trivial distinction, since there are important differences between the rules covering goods and services, including the type of market access granted and nondiscrimination between national and foreign suppliers. For example, discrimination against foreign suppliers is, in general, forbidden for trade in goods, but not for trade in services. The status of these e-products is as yet to be agreed by governments in the WTO. [ 8 ] Another issue is whether commitments made under WTO agreements - in particular related to services - are "technologically neutral" - i.e., whether they also cover electronic delivery. Generally, WTO members and commentators argue that a country's commitment to open its market for cross border supply of accountancy

services, for instance, applies equally whether those services are provided by letter, fax or over the Internet. However, some question whether specific commitments made during the Uruguay Round, predating the ecommerce era, should include supply over electronic networks. [ 9 ] There is much to be done also by way of international regulatory cooperation with the expected growth of crossborder trade in e-commerce. Data privacy, encryption technology, development of secure payments systems and taxation, among others, would raise legitimate public policy questions that should not result to restrictions in electronic trade. [ 10 ] With the borderless nature of cyberspace, negotiations and understanding among membercountries will play a vital role in the emergence of information technology as a more effective medium of international trade.
Endnotes 1. p. 23-26, Sax, Michael M., "International Electronic Trade Carrying out Consumer and Commercial Transactions on the Internet", originally submitted as LL.M. requirement to Osgoode Hall Law School York University, Toronto, Canada International Trade and Competition Law program, 4 January 1999. 2. Ibid. 3. Ibid. 4. Ibid. 5. Marantis, Demetrios, and McHale, Jonathan, Office of the US Trade Representative (USTR), "The Internet and Customs Duties" 6. Ibid. 7. Ibid. 8. Nielson, Julia and Morris, Rosemary, "ECommerce and Trade: Resolving Dilemmas", OECD Observer, 30 March 2001. 9. Ibid. 10. Ibid.

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

"Convergence" refers to technologies moving together towards

a common point and elimination of differences between the provisioning of video, voice and data, using digital and other emerging technologies; the coming together of two or more disparate disciplines or technologies;

the ability of different network platforms to carry any kind of service; and the coming together of consumer devices such as, but not limited to, the telephone, television and personal
>> [23] Lexicon of Cyberlaw Terminology

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Features

PHILIPPINES AS KNOWLEDGE CENTER OF ASIA IN THE 21ST CENTURY
by Carlyn Marie Bernadette C. Ocampo-Guerrero

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

ilipino IT practitioners, including technicians and programmers, are very much in demand all over the world, such as in advanced countries as United States, Australia and Singapore, acquiring a stature of proficiency second to Indian programmers who are dominating the IT outsource market today. But various professional groups and related organizations today have sprouted with the purpose of honing the skills of our IT professionals and expanding their capabilities. All these scattered efforts are now being harnessed and coordinated by the Philippine National Technical Council, which can boldly assert that the international community now sees the Philippines as an emerging IT-competitive economy. The Council sets out a clear vision that by the end of the first half of the 21st century, "the Philippines will have laid the infrastructure for every business, every agency of government, every school, and every home to have access to information technology. By 2005, Philippine companies will be producing competitive IT products for world markets. Within the first decade, it will be a leader in IT education, ITassisted training, and in the application of information and knowledge of business, professional services, and the arts. And telecommunications will provide the infrastructure for interconnection and networking throughout the Philippine archipelago." Its goal, therefore, is to make the Philippines as the Knowledge Center of Asia. The role of government in Philippine IT development is that of an enabler, lead user, and partner of the private sector providing national information Infrastructure and the policy, program,

and institutional environment that will encourage the growth of IT use and the IT industry in the country. Those involved in telecommunications, education and R&D will each play their own supportive roles -telecommunication is for the physical infrastructure, education for the adequate preparation of the labor force, the R&D community for developing local products and applications, and for adapting technology sourced overseas to Philippine conditions, as well as to act in a broader capacity as government or private business. In industry, it hopes to turn the Philippines into an Asian hub of software development and training. And sees that private industry will adopt IT solutions for competitiveness and develop a global niche for Philippine IT products and services. In government, it seeks to improve capacity and efficiency and to professionalize bureaucracy. In education, public and private education and training institutions will adopt IT in their curricula and develop a critical mass of IT professionals and an IT literate workforce. And in overall support services, it seeks to create policies, programs, institutions, and a culture that would make the Philippines achieve the Council's goal. IT became a concern of multilateral policy agreements, particularly within the General Agreement on Trade in Services (GATS) within the World Trade Organization and the Framework Agreement within ASEAN for expanding intro-regional trade in services. The National Information Technology Council noted that IT permeated various trade and investment liberalization and facilitation

initiatives, as well as economic and technical cooperation, within AsiaPacific Cooperation during the ManilaSubic ministerial and leaders meetings in 1996. The Philippine Situation. The principal strengths of the Philippine IT industry include a well-educated, pricecompetitive labor force, English proficient, with a growing track record of successful IT work, fast-growing telecom infrastructure, government interest in the industry, less regulation than those of some of its neighbors, good capabilities to dealing with foreign partners, and strong entrepreneurship. Yet, there are missing elements for integrated IT diffusion in the Philippines compared with other countries such as: improved access to IT technology and know-how from other countries across industries; preferential treatment of advanced local users in learning from foreign firms; more integrated approaches to national strategies for IT diffusion -- e.g. pace setting activities in cost-sharing, government-industry partnerships, and IT consultancies; user-oriented IT strategy to encourage building a critical mass of local IT firms; support to creating world-class managerial skills in information management and organization. Globally, competition in electronics has shifted away from final assemblers and vertical control to "open-but-owned" systems, with standard owners going after a growing installed base of customers. These opportunities are yet to be tapped by the Philippines. In telecommunications, Agila II was launched in 1997, with a reach covering all Southeast Asian countries and some parts of China and Japan. It further expands local

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telecommunications and broadcast infrastructure without depending on foreign-owned satellite facilities. Four telecommunications bills were in consideration in Congress: Proposed Reorganization of the National Telecommunications Commission; Cable Television Rationalization Bill; Anti-telecom Fraud Bill; Arbitrary Resistance to Interconnection which seeks to criminalize the refusal of a company to interconnect. More Internet Service Providers are expanding their services to include content provision as well. The first Philippine Internet Exchange or PhIX, was launched in 1997. PhIX is a network access point that allows ISPs to exchange local Internet traffic within the Philippines without having to connect host servers overseas. The PhIX was established by PLDT and interconnects Infocom, Iphil, Mozcom, Virtualink, and Worldtel. The banking industry is one of the Philippine pioneers in IT use. Megalink operated the first shared network of automated teller machines (ATMs) and was the first switch company to undertake ISO 9000 certification. And Among other IT projects in banking are the following: the Philippine Dealing System (PDS), an electronic off-floor foreign exchange trading system that has been in place since 1992; the Philippine Dollar Transfer System (PDDTS), a vehicle and electronic facility to handle and monitor bookkeeping claims to US dollars being traded among participating banks; IDInet Philippines Inc., a company jointly owned by Ayala Corp. and Singapore Network; Project Abstract Secure (PAS), a functional collaboration between the Bureau of Customs (BOC) and the BAP where an electronic , system has been put in place to verify the proper payment of customs/taxes and to remit payments electronically through the banks. The Philippine Stock Exchange set up an electronic trading system in 1994 and provided the investing public with access to market information during

trading by using investor terminals located at the public galleries. An electronic link-up with the Securities and Exchange Commission started in 1996. A paperless trading system was introduced in 1997, with the settlement and clearing of transactions using certificates replaced by a book-entry system of transferring ownership for equities and lodging the certificates in a central repository. A clearing facility is being built to supplement the central stock depository. The Philippine electronics industry is the country's major export winner. The industry is export-oriented, essentially engaged in assembly manufacturing and labor intensive activities, dominated by multinational corporations (MNCs) such as Intel, Texas Instruments, Fujitsu, Matsushita, Toshiba and others. In Education., Quality and expertise distinguish the Filipino IT professional. Filipinos find it easy working on legacy applications as well as fourth generation languages. Thousands of Filipinos are adept with mainframes and experienced in minicomputer operations. Filipino microcomputer professionals have experience with connectivity and data communications through Local Area Networks (LAN) and micromain frame links. The use of IT to improve teaching, learning , and educational management in basic education was introduced through Schools of the Future equipped with multimedia facilities opened in Camarines Sur in 1997. Various electronic information networks are encouraging greater inter-action within the country's networks are encouraging greater inter-action within the country's S&T community: the Science Academe and Research Network NARNET aims to connect to the Net thousands of tertiary and secondary schools all over the Philippines; the Science and Technology education network (STEDNET); and the Health R&D Information network (HERDIN). In Government. With the support of private sector, the Government

launched its own campaign to bring out a competitive IT industry. The Intellectual Property Rights Code, Republic Act No. 8393, seeks to impose stiffer penalties and fees for the manufacture, distribution and use of unlicensed software. House Resolution 890, called for the interconnection of local Internet Service providers into on Internet exchange. The exchange, to be otherwise known as the RPWEB, electronically links up via the Internet the entire government organization.
The Government's Action Agenda. A . Provide the Policy Environment. 1. Adoption and implementation of policies to promote increased investments in IT and related electronics industries--e.g., through strategic partnerships, venture capital. Specific Actions followed were promulgating administrative legislative measures to promote wider private sector participation in venture capital financing to expand the capital base for IT R&D and other IT-related development ventures; Adoption measures to promote strategic partnerships and alliances by local companies/institutions with leading international R&D institutions, technology providers, developers, and manufacturers; Promotion of technological innovation and experimentation by creating new products, services and applications; Focus R&D on high-value added IT products and services as well as on product creation/design and improvement in high growth sectors such as telecommunications software development (information systems, common application packages, educational/courseware packages, multimedia applications, computer animation, promotional products etc.).

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2.

Adoption of more investor-friendly policies systems and procedures in government. 5. Specific actions such as Fast-track legislation/adoption of administrative measures to further liberalize foreign investment; Establishing fast lane services for foreign investors/businessmen at ports of entry and when transacting business with government to create investor-friendly environment; Organizing a taskforce on monitoring and public accountability aimed at making the administrative and policy environment for more conducive for investing and doing business in the Philippines.

the Internet, to ensure information security and network reliability. Promoting telecommuting/ teleworking, particularly in software development and multimedia production.

accounting, auditing, monitoring reporting, etc. E . Organize for Institutional Reforms 1. Action:

Reorganizing the NITC to broaden and strengthen private sector. Involvement in IT development activities. Constituting NITC task forces to carry out specific IT 21 programs/ actions. Organizing a private sector Advisory Council to facilitate meaningful private sector participation in the implementation of IT 21. Strengthening the NCC to enable it to better carry out its primary mandate of promoting widespread use of IT in government. Creating a comprehensive database management, monitoring and benchmarking system for key IT indicators. Marketing the National IT plan for the 21st Century Organizing task forces to undertake a nationwide communication and advocacy program, including focused It trade missions and international roadshows. Developing, producing, and disseminating promotional materials on IT21 and the Philippine IT Action Agenda. Creating a Philippine website promoting IT 21 and IT Action Agenda.

C . Develop the IT Manpower Base 2. 1. Producing the critical mass of IT professionals and IT-literate manpower including competent IT educators and teachers at all levels. Designating from among IT training institutions, universities or colleges IT Centers of Excellence as a form of recognition and reward. Organizing a nationwide network of Core Competency institutions in IT in partnership with local and international development institutions and business organizations. Conducting continuing IT education for teachers/trainors, IT practitioners and workers. Adopting dual-tech approach in IT education and training. Establishing high-quality distance education and learning. Developing and implement life-long learning through the internet. IT Industry 2. F.

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Implementation of Philippine commitments to international agreements that affect the IT sector favorably -e.g. the IT Agreement (ITA). Adaptation of administrative measures to effectively enforce the laws on intellectual property rights (IPR), particularly as they affect IT products and services. Rationalization and coordination of development of technoparks and cybercities throughout the country for greater complimentarity in investments and infrastructure development. Physical

6. 4.

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6. 5.

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D. Pump-prime Development 1.

The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

B . Enhance the Infrastructure 1.

Accelerating universal access, i.e., Making telecommunications services accessible and affordable to all, by completing telecommunications programs, especially in underserved areas. Fast-tracking the formulation and implementation of the Philippine Information Infrastructure (PII). Intensifying investment promotion in the telecommunications industry. Formulating appropriate cyber laws in the use of networks, particularly

Implementing a government-wide computerization program with emphasis on the development and deployment of front-line, missioncritical and common application information systems. Providing appropriate financing support to allow active participation by private sector in R&D and in the development and the incubation of new products and solutions. Fast-tracking measures to streamline administrative processes and procedures in government procurement, budgeting,

3.

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2.

3.

In conclusion, Phase Three involves developing a global niche for the Philippine IT in knowledge products and services. It looks to sustaining IT innovation geared towards knowledge creation, pushing for higher levels of growth for the Philippine IT industry, and sustaining its role as "The Knowledge Center in Asia".
Source: www.neda.gov.ph/ads/IT21/

4.

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Features
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

AMENDMENTS TO THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET)
by Carlyn Marie Bernadette C. Ocampo-Guerrero

O

n 1 April 2003, the Amendments at the 1998 Rules of the House of Representatives Electoral Tribunal (HRET) were adopted. Specifically, Rules 1 (Title), 4 (Organization), 11 (Administrative staff), 16 (Election protest), 21 (Summary dismissal of election contest), 31 (Filing fees), 32 (Cash deposit), 34 (Legal fees), 35 (When ballot boxes, election returns and other election documents brought before the tribunal), 36 (Revision teams), 37 (Revisors; Compensation), 39 (Procedure during revision), 40 (Where revision done; Who may be present), 48 (Photographing or photocopying, and 59 (Time limit for presentation of evidence) were amended. The former Rules 66 to 83 of the 1998 Rules were renumbered as Rules 86 to 103 in the current rules to admit 20 new rules on Electronic Evidence, applying therefore provisions of the Rules of Electronic Evidence (A.M. No. 01-701-SC) promulgated in July, 2001 to electoral matters involving the HRET. Moreover, the renumbered Rules 88 (Pilot precincts; Initial revision), 94 (Finality and execution of decisions; Motion for reconsideration), 95 (Entry of Judgment), 96 (Procedure after finality of decision; Execution of decision; Publication of decisions), and 103 (Effectivity) were also modified. Rules 66 to 85 of the amended HRET Rules state the rules on how electronic documents or electronic data message may be used, offered and admitted in evidence.

evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by the said Rules. The definition of Electronic document is a reiteration of the definition given in the Rule 2 (Definition of Terms and Construction) of Electronic Evidence of the SC (REE of the SC). Rule 68 states that an electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule. Rule 69, expounds on how a copy of a document shall or shall not be admissible to the same extent as the original. Both Rules 68 and 69 are lifted from Rule 4, Secs. 1 and 2, Best Evidence Rule In Rule 70, various means are presented on how a person seeking to introduce an electronic document may prove its authenticity. Rule 71, Proof of Electronically Notarized Document, points that a document electronically notarized shall be considered as a public document and proved as a notarial document under the Rules promulgated by the Supreme Court (lifted from Rule 5, Secs. 1, 2 and 3, Authentication of Electronic Documents.) Rule 72 details the various manner on how an electronic signature may be authenticated. Rule 73 are the disputable presumptions relating to Electronic Signature. Rule 74, on the other hand, are the disputable presumptions relating to Digital Signatures. (Rules 72, 73 and 74 are reiteration of Rule 6, Sec. 1, 2, 3 and 4 on Electronic Signatures.)

Rule 75 are the factors in assessing the evidentiary weight of an electronic document. Rule 76 are the factors to be considered when it comes to the integrity of an Information and Rule 77 are the exceptions to the Hearsay Rule. On the other hand, how the presumptions provided for in Rule 77 may be overcome is provided for in Rule 78. Both rules are reiteration of Rule 8, Secs. 1 and 2, Business Records as Exception to the Hearsay Rule. Rule 79, Affidavit of Evidence, and Rule 80, the process required from the affiant with regard to the affirmance of the contents of the affidavit in open court, as well as the procedure of cross-examination by the adverse party are reiterations of Rule 9, Sec. 1 and 2, Method of Proof. Rule 81 lays down the procedure to be followed after summarily hearing the parties pursuant to Rules 79 and 80 of the above Rules; Rule 82 affirms the necessity of transcription by the stenographer, stenotypist or other recorder of the entire proceeding of the examination of a witness done electronically; Rule 83 declares that the electronic evidence and recording of it as well as stenographic notes shall form part of the record of the case. Rules 81 to 83 are all reiteration of Rule 10, Sec. 1,2,3 on Examination of Witnesses. Rule 84 sets forth the condition when audio, video and similar evidence shall be admissible in Court; and Rule 85 states how ephemeral (lasting only a very short time) electronic communication which includes telephone conversation, text messages,
>> [24] Amendments to HRET Rules

Rule 67, as stated in Rule 3, Sec. 2 on Electronic Documents (A.M. No. 01-7-01-SC), declares that an electronic document is admissible in

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Features
ITATION LEGAL CITATION: WEBSITES AS REFERENCE
by Jhonelle S. Estrada

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

hen lawyers argue their case and judges write their opinion, they cite authority. Reference is made to the statutes, regulations and jurisprudence found to be applicable to the given state of facts. Thus, the reader and the writer must master the language of "Legal Citation." Definition and purpose Legal Citation is defined as [ 1 ] "a standard that allows one writer to refer to legal authorities with sufficient precision and generality that others can follow the references. A reference properly written in legal citation helps: a. Identify the document and document part to which the author is referring. b. Provide the reader with sufficient information to find the document and document part in the sources the reader has available (which may or may not be the same sources as those used by the writer), and c. Furnish important additional information about the referenced material and its connection to the writer's argument that a reader trying to decide whether or not to pursue the reference would want to know"

professional norms that introduced generations of law students to legal citation and the other one is the "ALWD CITATION MANUAL" which is an alternative reference designed for instructional use, prepared by the Association of Legal Writing Directors. BlueBook and the ALWD Citation Manual The Bluebook, although used earlier than the ALWD CITATION MANUAL has been much criticized. It was said that it has too many editions and that students control the Bluebook. The Bluebook has been created primarily by law students. Their lack of experience and their being turned over by 100% every few years has contributed to difficulties with the Bluebook. The members of the Association of Legal Writing Directors (ALWD) find it frustrating to teach citations found in the Bluebook, prompting members of ALWD formed a committee and chose a person to write a new citation manual, giving birth to the ALWD Citation Manual. "The ALWD Citation Manual is not merely a reference book, but is also a teaching book" It aims to simplify some of the rules in citation, reduce inconsistencies, make rules responsive to the needs of lawyers as well as scholars and to provide stability and uniformity of citation rules. Websites The Art of Legal Citation is complicated. Most students find it hard to cite authorities coming from the conventional sources such as books,

journals, etc. and now, due to the advancement in Information Technology and with the proliferation of websites, its use as a reference material became a common thing. Thus, here comes the Big Question, HOW DO WE CITE WEBSITES AS OUR REFERENCE MATERIAL? The Bluebook and the ALWD Citation Manual both provided certain examples. a. BLUEBOOK: Federal Judicial Center, Federal Judicial Center Publications (visited July 10, 1999) <http:// www.fjc.gov/pubs.html> b. ALWD CITATION MANUAL: Federal Judicial Center, Federal Judicial Center Publications <http:/ / w w w. f j c . g o v / p u b s . h t m l > (accessed July 10, 1999) The ALWD Citation Manual moved the date to the end to be more consistent with other sources. ALWD uses "accessed" instead of "visited" to give a more professional tone and be consistent with non-legal citation guides The book "Basic Legal Writing" by Mauricio Ulep provided for different guidelines in citing Internet sources for legal documents. a. For Periodical Articles For Journals available on the web: Author(s), 'title of article,' volume, Journal title, article Reference (year) <Journal Uniform Resource Locator> [paragraph pinpoint] Where an article is published on the web but is not part of the journal:

Some students and practitioners find difficulty in citing authorities. Legal Citation is a technical language that should be mastered. Some writers even said that it is easier to read than to write. Two of the most widely used manuals in legal citation is the "BLUBOOK" which is a codification of

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Author(s), 'title of article,' Homepage Title, relevant Organization, article reference (year), <Uniform Resource Locator> (Copy on file with Author) [paragraph pinpoint] b. For Cases published in Electronic form: Surname of parties, [Court Identifier] G.R. docket number and date of promulgation (Unreported, ponente) <uniform resource locator> at date file retrieved [pinpoint] c. For Statutes/Rules published in electronic form: State/country, Title of statutes/ rules, date adopted or promulgated by name of authority <uniform resource locator> at date file retrieved (paragraph pinpoint]

d. For E-mail Author of e-mail, message. Subject line of the message [online available e-mail: name of recipient @ address.edu. from author @) address.edu.date of message. Advantages and Disadvantages Since the use of websites became a common practice nowadays, its use a reference material has its advantages and disadvantages.
<< [17] Lexicon of Cyberlaw Terminology

The use of websites can help one get all the necessary data easier. One need not go to the library to borrow various books on the subject. It is more accessible. All that a person has to do is log on, on the Internet. It is cheaper because it saves the person money from photocopying books, journals, and cases. Websites are sometimes more updated. It is much easier to revise. Yet, the use of websites as a reference material also has its drawbacks. There are still a range of doubts regarding its validity. There are critics questioning the validity of the resources, since one can write about something and just post it without the approval of the appropriate authority. One cannot even be sure regarding the authenticity of documents found in websites. There is also no certainty regarding the person who made the websites. Any person who has no expertise or is not accredited in that particular field can just give his/her view, and can become an expert all of a sudden. Thus, a person should not entirely base his findings or opinions on documents found in websites. Books are still more accurate because it has the approval of the proper authorities and has undergone various processes before it is published and printed. The reliability of websites can also be questioned, since its contents can be easily changed. A problem may even arise if the websites are not always updated. If a person write a certain document and has no knowledge "Intermediary" refers to a person who in behalf of another person and with respect to a particular electronic document sends, receives and/or stores or provides other services in respect of that electronic document. (Sec. 5 (h), R. A. No. 8792) "Originator" refers to a person by whom, or on whose behalf, the electronic document purports to have been created, generated and/or sent. The term does not include a person acting as an intermediary with respect

regarding that certain subject, and he/ she relied completely on websites, he/ she is not the only one who will be misled by the wrong information but his readers as well. His/Her reader's outlook might be tainted and they might arrive into erroneous conclusion regarding that certain topic. Conclusion The use of websites as a reference material became an ordinary thing, but we should bear in mind, that websites should only be supplement information coming from the conventional sources. We should avoid using it as our sole reference, because it is not a conclusive reference material.
Endnotes 1. Martin, Peter "Introduction to Basic Legal Writing" , (2003 ed) <http// www.law.cornell edu/citation>

Bibliography 1. Martin, Peter, "Introduction to Basic Legal Citation," (2003 ed) >http:// www.law.cornell.edu/citation> Schiess, Wayne, "Meet ALWD: The New Citation Manual", (2002) <http:// schiess.freeservers.com/alwd.html> Jamar, Steven, "A Review of ALWD Citation Manual" Citation System for the Law (2000) <http:// www.law.harvard.edu/faculty/pages/ jamar/scholarship/alwdciterev.htm> UCHastings College of Law, "Legal Writing and Research" (2000-2001). <http://uchastings.edu/wr-o1/classes/ alwd.manual.htm> Ulep, Mariano "Basic Legal Writing." (2002)

2.

3.

4.

5.

computer. (Sec. 6 (d), Chapter 1, Part II, Implementing Rules and Regulations of the E-Commerce Act of 2000). "Interconnection" refers to the linkage, by wire, radio, satellite or other means, of two or more existing telecommunication carriers or operators with one another for the purpose of allowing or enabling the subscribers of one carrier or operator to access or reach the subscribers of the other carriers or operators. (Sec. 3 (k), R. A. No. 7925)

to that electronic document. (Sec. 5 (i), R. A. No. 8792) "Telecommunications" refer to any process which enables a telecommunications entity to send and receive voice, data, electronic messages, written or printed fixed or moving pictures, music or visible or audible signals or any control signals of any design and for any purpose by wire, radio or other electromagnetic, optical, or technological means. (Sec. 3 (a), R. A. No. 7925)

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[15] Jurisprudence in Cyberlaw

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[6] Is there such a thing as WMD?

addresses, since they are exchanging pirated music.; and 2. the Recording Industry Association of America (RIAA) informed Napster of more than 12,000 infringing files, some of which are still available. There is also constructive knowledge because: 1. executives have recording industry; 2. they have enforced intellectual property rights in other instances; 3. Napster executives have downloaded copyrighted songs from the system and 4. they have promoted the site with "screen shots listing infringing files." Napster provides the 'site and facilities' for direct infringement. Plaintiff's claim that Napster can be held liable for contributory copyright infringement is meritorious. (b) Vicarious copyright liability is 'an outgrowth' of respondeat superior. It extends beyond an employer/ employee relationship to cases in which a defendant has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.' The court finds Napster's failure to police the system's "premises," combined with a showing that Napster financially benefits from the continuing availability of infringing files on its system, leads to the imposition of vicarious liability. The order of Preliminary Injunction is affirmed with modifications.
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

relation with the critical utility that they are designed to support, as a means to minimize negligence on the matter, and prevent potential disasters as a result thereof. Pollitt made an apt reminder on this matter. He said, “As we build more and more technology into our civilization, we must ensure that there is sufficient human oversight and intervention to safeguard those whom technology serves.” [ 18 ] On the other hand, critical data must likewise be protected. The Government should provide the ample protection through the enactment of laws for stiffer penalties against e-mail bombing or flooding, denial of service attacks, and computer break-ins. The government and industries must find solutions to increase the quality of system security, mass-market computer products, and emergency technical response. The economic consequence of crashed or unusable systems and corrupted data is clear. In the end, anything that would threaten economic viability may appear to be greater than the threat of physical harm, for eventually what is worse than the death that we fear is the reality of borderline existence that we have to endure.
Endnotes 1. What is Cyber? A word definition from the Webopedia Computer Dictionary. Retrieved 4 May 2004. http:// w w w. w e b o p e d i a . c o m / T E R M / c / cyber.html. http:// www.webopedia.com/. Copyright, 2004 Jupitermedia. All rights reserved. Reprinted with permission from http:// www.internet.com. Collin, Barry C., “The Future of CyberTerrorism,” Proceedings of 11th Annual International Symposium on Criminal Justice Issues, The University of Illinois at Chicago, 1996 http:// w w w.acsp.uic.edu/OICJ/CONFS/ terror02.htm The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2000 by Houghton Mifflin Company. Published by Houghton Mifflin Company. All rights reserved. WordNet ® 1.6, © 1997 Princeton University. Denning, Dorothy E.. “Testimony before the Special Oversight Panel on Terrorism Committee on Armed Services US

6.

7.

8.

9. 10. 11.

12.

13.

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[21] Amendments to HRET Rules

chatroom sessions, streaming audio, streaming video and other electronic form of communication shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. Both rules are taken from Rule 11, Secs. 1 and 2 on Audio, Photographic, Video and Ephemeral Evidence. Therefore, Rules 66 to 85 is just a repetition or reiteration of the Rules on Electronic Evidence as promulgated by the Supreme Court (A.M. No. 017-01-SC).

14.

2.

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3.

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4. 5.

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18.

House of Representatives.” Georgetown University, 23 May 2000. Retrieved 4 May 2004. http:// www.cs.georgetown.edu/~denning/ infosec/cyberterror.html Pollitt, Mark M. “CyberTerrorism: Fact or Fancy?” Retrieved 4 May 2004. http:/ /www.cs.georgetown.edu/~denning/ infosec/pollitt.html “The term ‘Terrorism’ means premeditated, politically motivated violence perpetuated against noncombatant targets by sub-national groups or clandestine agents.” United States Department of State, “Patterns of Global Terrorism,” Washington DC, 1996 Denning, Dorothy E. http:// www.cs.georgetown.edu/~denning/ infosec/cyberterror.html, supra. The American Heritage®, supra. WordNet ® 1.6, supra. The word “terrorism” entered into European languages in the wake of the French revolution of 1789 when the government in Paris tried to impose its radical new order on a reluctant citizenry. As a result, the first meaning of the word “terrorism,” as recorded by the Académie Française in 1798, was “system or rule of terror,” a reminder that terror is often at its bloodiest when used by dictatorial governments against their own citizens. See BBC, History, The Changing Faces of Terrorism. http:// www.bbc.co.uk/history/war/sept_11/ changing_faces_01.shtml CNN.com – Hamas leader killed in air strike – Apr 17, 2004. Retrieved 4 May 2004. http://edition.cnn.com/2004/ W O R L D / m e a s t / 0 4 / 1 7 / mideast.violence/index.html. See also CNN.com - Ambassador: Hamas leader was ‘doctor of death’ – Apr 19, 2004. Retrieved 4 May 2004. http:// edition.cnn.com/2004/WORLD/meast/ 04/19/ un.rantisi/index.html Appendix B - Background Information on Designated Foreign Terrorist Organizations. Retrieved 4 May 2004. http://www.globalsecurity.org/security/ library/report/2004/pgt_2003/ pgt_2003_31711pf.htm Collin, Barry C., “11th Annual International Symposium on Criminal Justice: The Future of Cyberterrorism, where the physical and virtual worlds converge.” Retrieved on 4 May 2004. http://afgen.com/terrorism1.html Pollitt, Mark M., “Cyberterrorism: Fact or Fancy?” Retrieved 4 May 2004 http:/ /www.cs.georgetown.edu/~denning/ infosec/pollitt.html Denning, Dorothy E. http:// www.cs.georgetown.edu/~denning/ infosec/cyberterror.html, supra. Green, Joshua. “The Myth of Cyberterrorism.” Retrieved 4 May 2004. http://www.washingtonmonthly.com/ features/2001/0211.green.html Pollitt, Mark M., “Cyberterrorism: Fact or Fancy?” supra.

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

<<

[14] From Free to Fee

and thrive in a sheltered marketplace. [ 30 ] At the end of the day, nothing is more satisfying that to have days of free Internet.
Endnotes 1. 2. Commisioner v Pineda, 21 SCRA 105 Vitug and Acosta (2000). Tax Law and Jurisprudence. Second Edition, pg 3. Quezon City, Philippines, Rex Bookstore. No.6, Section 1104, The Internet Tax Freedom Act. Accessed May 17, 2004. http://www,gseis.ucla.edu/iclp/itfa.htm Lallana, E. (2003) www eprimers.org/ Infoage/page44.asp No.3, Section 1104, The Internet Tax Freedom Act. Accessed May 17, 2004. http://www.gseis.ucla.edu/iclp/itfa.htm Muscovitch, Zac (-). Accessed July 16, 2004. http://www.firstmonday.dk/ Issues/issue2_10/muscovitch/ index.html#Conclusion No.1, Section 1104, The Internet Tax Freedom Act. Accessed May 17, 2004. http://www,gseis.ucla.edu/iclp/itfa.htm Yam, Jovi (2001). Net taxation: The Bit Tax. http://www.itmatters.com.ph/ column/yam_07052001.html Cordell, Arthur(1996). New Taxes for a New Economy. Accessed July 14, 2004. http://www.usask.ca/library/gic/v2n4/ cordell/cordell.html << [28] Harvard Internet Law Program

3.

4. 5.

6.

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8.

9.

10. Yam, Jovi (2001). Net taxation: The Bit Tax. Accessed. http:// w w w. i t m a t t e r s . c o m . p h / c o l u m n / yam_07052001.html 11. Ibid. 12. Ibid. 13. Glover, Marilee (year). Taxation and the Internet. http://web.utk.edu/ ~mglover/IS567Paper.html 14. No. 17, Section 1104, The Internet Tax Act. Accessed May 17, 2004. http:// www,gseis.ucla.edu/iclp/itfa.htm 15. Andal, Dean ( ). "Electronic Commerce: "Bright Line" Definition of Nexus Needed." Cal-Tax Digest. Sept. 1999. Accessed May 28, 2004. http:// w w w. c a l t a x . o r g / M E M B E R / d i g e s t / sep99/sep99-4.htm. 16. ______. Internet Taxation: Myth versus Fact." http:// w w w. s a l e s t a x s i m p l i f i c a t i o n . o r g / documents/myth.doc. Accessed 1 July 2004. 17. 504 US 298 18. ______. Internet Taxation: Myth versus Fact." http:// w w w. s a l e s t a x s i m p l i f i c a t i o n . o r g / documents/myth.doc. Accessed 1 July 2004. 19. Glover, Marilee (year). Taxation and the Internet. http://web.utk.edu/ ~mglover/IS567Paper.html 20. National Governors association accessed May 19, 2004. http:// www.nga.org/legislativeUpdate/HHS/ 1,2243„00.html

21. Yam, Jovi (2001). Net Taxation: Dutyfree cyberspace... for now. Accessed June 12, 2004. http:// www.itmatters.com.ph/ column/ yam_06282001.html. 22. McCluskey, Alan (1998). Taxation and the Internet. Accessed. w w w. c o n n e c t e d . o r g / g o v e r n / taxation.html 23. Mark, Roy (2002). End of the Beginning: Internet Sales Tax. Accessed July 01, 2004. http://www.internetnews.com/ ec-news/article.php/1499501 24. National Governors association accessed May 19, 2004. http:// www.nga.org/legislativeUpdate/HHS/ 1,2243„00.html 25. Quill v North Dakota 504 US 298 (1992) 26. ______. Internet Taxation: Myth versus Fact." http:// w w w. s a l e s t a x s i m p l i f i c a t i o n . o r g / documents/myth.doc. Accessed 1 July 2004. 27. Glover, Marilee (year). Taxation and the Internet. http://web.utk.edu/ ~mglover/IS567Paper.html 28. Ibid. 29. Mangalindan, Marciano (2000). The Web Tax is Free... or is it? Accessed 1 July 2004. http://trim811.addsites.com/ webtax.html 30. Mangalindan, Marciano (2000). The Web Tax is Free... or is it? Accessed 1 July 2004. http://trim811.addsites.com/ webtax.html

· · Lawrence Lessig, Professor of Law and John A. Wilson Distinguished Faculty Scholar at Stanford Law School. He is the founder of the Berkman Center and Chairman of the Creative Commons. He was a recipient of the Cyberspace Law Excellence Award from the American Bar Association and was named as one of the Scientific American's "Top 50 Innovators" in 2002. He is an author of various books on cyberlaw, his most recent being: "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity". Charles Nesson, Professor of Law at Harvard Law School, Faculty CoDirector and co-founder of the Berkman Center in 1997. He clerked for US Supreme Court Associate Justice John Marshall Harlan and continues to incorporate cutting-edge technology in his law classes.

·

Yochai Benkler, Professor of Law at Yale Law School with J. D. at Harvard Law School. He clerked tot US Supreme Court Associate Justice Stephen Breyer and had extensive research and papers on the effects of laws, as well as political and economic theory, that regulate information production and exchange. William Fisher III, Hale and Dorr Professor of Intellectual Property at Harvard Law School, Faculty Director of the Berkman Center and specializes in intellectual property law and the implications of Internet and technology on copyright, and author of "Promises to Keep". Jerry Kang, Professor of Law of UCLA and visiting professor of Harvard Law School. His scholarship pursuits include civil procedure, race and communication. He is the author of the leading casebook, "Communications Law & Policy: Cases and Materials".

Jonathan Zittrain, Professor of Law and Faculty Co-Director and cofounder of the Berkman Center and serves as its first executive director from 1997-2000. His research includes the technologies and politics of control of Internet architecture and protocol and the future of the open source software.

·

·

·

In his ten page Participation Report to Law School Dean Mariano Magsalin Jr. and Mr. Florentino Cayco III, Prof. Soriano said that the program gave him a better perspective of the current issues affecting the Internet from the legal, political, economic and technological perspectives. He also noted that many of the participants are unaware of current developments in technology law in the Philippines. The Berkman Center for Internet and Society observed that this year's program was a great success. It was the largest and arguably the best of the 6th Internet Law Programs hosted by the center.

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LegalWeb

WWW.SUPREMECOURT.GOV.PH:

BRINGING THE JUDICIARY CLOSER TO THE PUBLIC
by Ma. Cristina A. Ramos

I
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

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

of a formal judicial structure and its changes through the years. "Vision/Mission" contains the policy statement of the Judicial Branch. "Justices" makes the public acquainted with the present justices of the Supreme Court as it provides for the profiles of the latter placing special emphasis on their educational background and stint in the judiciary and legal profession. Photographs of each of the justices are also posted in these pages. The organizational structure of the Philippine court system is shown in "Organizational Structure." A space is also provided for the Supreme Court's organizational chart in the same page but chart is not yet posted. "Announcements" is a virtual public bulletin board wherein invitations to apply for eligibility and to bid, notices of awards and similar information are posted. "News and Information" is almost similar to "Announcements" as it also functions as a virtual bulletin board. Under this section, the following are posted: Search for 2004 Chief Justice Davide Awardees, Cultivation of Ethical Values in the Judiciary (a speech of the Chief Justice), downloadable awards forms for judicial excellence. One of the interesting parts of the site is "Bar Matters." Under it, one can find the list of successful bar examinees from 1998-2003. It also contains a list of bar topnotchers from the prewar period up to present and the roll of attorneys. Hence, if one wants to

check whether a person is indeed a member of the bar, he or she can find it out in a mouse click. The section on "Publication" is the space reserved for interesting works of the members of the Bench. At present, it contains three articles written by Justice Artemio V. Panganiban entitled "Battles in the Supreme Court," "Justice and Faith" and "Leadership By Example." The "Directory" provides a list of contact numbers of the different offices in the Supreme Court. It contains a list of the telephone numbers of the First, Second and Third Divisions, PHILJA, Presidential Electoral Tribunal, Management Information System Office, Judicial and Bar Council, the Offices of the Clerk of Court, Bar Confidant, Court Reporter, Chief Attorney, and Court Administrator. The contact number of the different services such as Administrative, Medical, Dental, Library and Printing, are likewise displayed. Other offices whose contact numbers are listed in the site are the following: Judicial Records Office, Fiscal Management and Budget Officer, financial Services Division/ Internal Audit Division, Program Management Office, Committee on Halls of Justice, and Security and Maintenance Unit in Baguio City. Frequently Asked Questions The site also gives space for the frequently asked questions under "FAQ." Some of the questions may be trivial but they are merely reflective of the fact that some trivial questions are worth asking as the answers are

n 1998, the Supreme Court of the Philippines made information from and about the judiciary available to the world through the Internet. For almost six years now the official website of the Supreme Court has been functioning as a clearinghouse for information from and about the Judicial Branch of the Philippine government. The site has also been helpful to legal practitioners, judges, legal researchers and law students as the site contains up-to-date information necessary in the field of law. The homepage provides links to pages about the following: announcements from the Supreme Court, history of the Highest Tribunal, its mission and vision, the present justices, the Court's organizational structure, bar matters, decisions, resolutions, circulars and orders, references, publications, news and information, frequently asked questions, the Philippine Judicial Academy (PHILJA) and telephone directory of the Supreme Court. Information from and about the Judiciary Under "History" is a brief story of the Court. It traces the beginnings of the Judicial Branch of the Philippine Government starting from the time the Spaniards came wherein judicial authority was being exercised in its primitive. It provides for the laws and issuances that led to the introduction

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The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

sometimes not known even to those learned in the law. The following are the questions answered in this section. 1. What are the three branches of government? 2. What is the difference between the Judiciary and the Supreme Court? 3. What is the difference between the Supreme Court and the Department of Justice? 4. What is the Bench and the Bar? 5. What are Shari'a courts? Are these Courts under the Supreme Court? 6. What does the term En Banc mean? Why are there three divisions in the Supreme Court? 7. How are justices of the Supreme Court and the Court of Appeals and the judges of the lower courts appointed? 8. What is the reason behind the mandatory retirement age of 70 for members of the Bench? 9. What are the functions of the Court Administrator? Is the Office of the Court Administrator (OCA) under the Supreme Court? 10. What cases are elevated or can be appealed to the Supreme Court? 11. Does the Supreme Court decide on cases that have not been tried in inferior or lower courts? 12. What does the term "jurisprudence" mean? 13. Is there a prescribed time frame for the Supreme Court to review cases appealed to it? How about lower courts? For sure, even a person in the field of law may find one or two of these questions interesting. It may also be true that although a person understands the terms and has an idea on the above queries, still, when asked to explain them to a third person, he or she may find a hard time to make an intelligent response. Want for answers? Just visit the site and you can find intelligent and well explained answers to the questions above.

PHILJA The site www.supremecourt.gov.ph contains pages about the Philippine Judicial Academy (PHILJA). PHILJA's pages provide, among others, information about the academy, the programs and courses being offered, the on-going seminars and its projects with partners. Legal Research Service The official website of the Supreme Court contains important research materials for the members of the bench and the bar and to those who are in the field of law. The sections on "Decisions," "Resolutions," "Circulars and Orders" and "References" form part of a 'virtual library' of the Judiciary.

mouse, he or she can update himself of the latest circulars and orders. Aside from jurisprudence, resolutions, circulars and orders, the "References" section provides for the rules recently promulgated by the Supreme Court. Among those posted in the site are the following: 2004 Rules on Notarial Practice, Administrative Matter No. 0308-01-SC (Fixing the Lifetime of Bonds in Civil Actions or Proceedings), A.M. No. 03-03-03-SC (Consolidation of Intellectual Property Courts With Commercial Courts), Rule on Guardianship of Minors, Amendment to the Rules on Summary Procedure,

"Decisions" contains the full text of the decisions handed down by the The homepage of the Philippine Supreme Court (http:// Court. They are www.supremecourt.gov.ph). The website was launched in 1998. grouped based on the months on which they were Rules on Legal Separation, Declaration promulgated. The depository, though of absolute Nullity of Void Marriages not complete as it contains only those and Annulment of Voidable Marriages promulgated starting January 1999, and Rule on Adoption. includes all the latest decisions of the Highest Tribunal. The same is true with "References" also contains the 1987 the "Resolutions." This section does not Constitution, the Rules of Court and contain all the resolutions issued by the Legal Fees and Costs. Court but it provides for the full text of those passed from January 1999 up Indeed, the Judicial Branch is to this date. satisfactorily adapting to the needs of the times. The volume and quality of Before the advent of the the information available in "www.supremecourt.gov.ph," a legal www.supremecourt.gov.ph only show practitioner had to browse the pages that the Judiciary is not lagging behind of the newspapers to be updated with and is prepared for technology the Supreme Court Circulars and revolution. Orders. Now, with just one click of the

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The Center and the Society
E-LAW

CENTER EXECUTIVE DIRECTOR ATTENDS HARVARD INTERNET LAW PROGRAM
by Peter Joseph L. Fauni

P
The Philippine Quarterly IT Law Journal :: Volume 1, Number 2

rof. Jaime N. Soriano, Executive Director of the eLaw Center, participated in the 2004 Internet Law Program of the Berkman Center for Internet & Society of the Harvard Law School in Cambridge, Massachusetts. The Internet Law Program is a regular offering of the Berkman Center for Internet & Society to provide a comprehensive survey of the changing legal system that govern the Internet and give the participants from various jurisdictions the opportunity to discuss recent legal developments with leading scholars in the field. The Berkman Center for Internet & Society is a pro-active research program founded to explore cyberspace, share in its study and help process its development. It represents a network of faculty, students, fellows, entrepreneurs, lawyers, and virtual architects working to identify and engage with the challenges and opportunities of cyberspace under a common understanding of the Internet as a social and political space. Current projects include digital media, Internet and politics, net governance,

international development and intellectual property. This year's program was held at the Austin Hall of the Harvard Law School on May 13-15, 2004. Similar programs were held off-campus in the past, notably in Brazil, Stanford University in the US, and Singapore. The 2004 Internet Law Program drew 125 Prof. Soriano with Ms. Robyn Mintz, Executive Director of participants from 20 the Berkman Center for Internet and Society of Harvard Law School (right), and Ms. Rebecca MacKinnon, CNN countries. Half of the Tokyo Bureau Chief and Harvard Fellow (left) participants though came from the United States. The participants included lawyers, prior to the on-site sessions: A Crash government officials, corporate Course in Internet Technologies, executives, technology experts, Regulation, The Technical is Political: educators, and representatives of Access to an Open Information cause-oriented, mass media, and Environment, and Legal Regulation of research groups. Digital Media. The program actually started on 14 April 2004 with the launching of online instruction modules accessible only to confirmed participants and moderated by Derek Bambauer, a third year student of Harvard Law School and student fellow at the Berkman Center. Topics included: Copyright and Peer-to-Peer Copying, Alternatives to Intellectual Property, Privacy, Freedom of Expression on the Internet, Legal Regulation on Interconnectivity, Cybercrime, Online Business Method Patents, Domain Names, Jurisdiction and Zoning, and, Access to the Internet. The participants were also provided with the following four-taped lectures in DVD format for mandatory viewing During the three-day program at Harvard Law School, leading professors and Internet law experts presented an in-depth and thought provoking discussion on the following subjects: Pornography - An Application of Law, Norms, Market, Architecture, Physical Layer: Wires and Wireless, Logical Layer: End-to-End, Lessons from the Domain Name Controversy, Content Layer: The Future of Copyright on the Internet, Free Culture, Peer Production of Information, Pressing Issues, Intellectual Property Protection for Code? SCO and the Fight Over Software Patents, Privacy, and The Internet and Politics. Faculty members of the Harvard Law School who took part in the program were the following:
>> [25] Harvard Internet Law Program

Prof. Soriano with Prof. Lawrence Lessig of Harvard Law School and Founder of the Berkman Center for Internet and Society.

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