THE DANGER WITH THE CYBERCRIME PREVENTION ACT OF 2009
January 14, 2010
Although we recognize the need for legislation that will protect individuals and institutions from malicious attacks through electronic means, it must not be addressed by a law that sweeps broadly to cover many other electronic devices and many other legitimate electronic activities exercised by ordinary citizens. H.B. 6974 unfortunately, does not provide clear-cut definitions to “electronic devices” nor to “cybercrimes”. By deliberately providing a vague and catch-all definition of such devices and activities, government institutions and agents mandated to execute the Cybercrime Prevention Act, in case it is implemented, are dangerously empowered to intrude into the privacy of individuals, interfere with ordinary and harmless electronic activities and suppress legitimate forms of expression through electronic means.
Ø THE CYBERCRIME PREVENTION ACT MAY BE USED TO VIOLATE THE PEOPLE’S RIGHT TO PRIVACY & RIGHT AGAINST UNREASONABLE SEARCHES & SEIZURES
1. The Cybercrime Prevention Act empowers the government to monitor activities and access private accounts of persons suspected of committing “cybercrimes”, even activities and files that are not related to said punishable acts. Even if government is seeking to monitor specific activities of an individual related to “cybercrime”, the technology to distinguish which electronic activities of an individual are indeed related to a “cybercrime” and which are not may not yet be available. All activities in a given time (“real-time” surveillance as stated in the Act) may be monitored. For example, for the government to pin-point an activity which is criminal in nature according to the Act, it has to monitor all other activities of an individual at a given time, and worse may expose the activities of other individuals using the same computer system or server at the same time. For the government to access a malicious file in an individual’s hard drive, it has to confiscate and search through the entire storage device, thus exposing all other personal files and correspondence to government access and intrusion, even those unrelated to the “cybercrime”. This is dangerous because it gives the government an excuse to justify illegal fishing expeditions against ordinary citizens and allows the wanton violation of the strict requirements in criminal procedure. (Sec. 9 – 13, Enforcement & Implementation)
2. The Cybercrime Prevention Act empowers foreign governments to access and monitor the electronic files and activities of Filipinos (Chapter VI)
3. The Cybercrime Prevention Act seeks to create a government agency that is disturbingly government/military/police-centric, with a majority of number of appointees under the control of the Office of the President. Internet users, netizens, mobile phone users and other consumer groups are sorely missing and unrepresented. The Cybercrime Prevention Act also did not go through extensive consultations with sectors that will be greatly affected by the legislation–bloggers, online publishers, internet service providers, ordinary internet users and even mobile phone users. (Chapter VII)
Ø THE CYBERCRIME PREVENTION ACT MAY BE USED TO STIFLE FREEDOM OF EXPRESSION, OF SPEECH AND OF THE PRESS
4. The recording, distribution and exhibition of recorded “private acts” and “other obscene and indecent acts” are not limited to sexual acts and thus not sufficiently defined. How does this affect the right of citizens to freedom of speech and of expression, especially with regard to issues of public and national concern? Will the scrupulous acts of public officials behind closed doors be considered “private acts”? How will this affect the way media expose and report corrupt practices in government and in some business establishments? (Sec. 4.c.1 (b-e))
Ø THE CYBERCRIME PREVENTION ACT MAY BE USED TO CRIMINALIZE HARMLESS, LEGITIMATE AND ORDINARY ELECTRONIC ACTIVITIES, AND COVER ORDINARY USERS OF THE INTERNET, OF MOBILE PHONES & OTHER ELECTRONIC GADGETS
5. The bill contests the widespread practice and general convenience that anything uploaded in cyberspace, unless password-protected or requiring registration for access, is somehow automatically available for public consumption. How does this affect the regular cross-posting or re-posting of articles and other internet content, downloading of torrents and other downloadable items such as free software and the use, distribution and reproduction of other materials from the Internet? (Sec. 4.1)
6. The practice of placing online ads, self-promotion of products or websites and/or the use of the Internet to “advertise” events, personalities, causes and such even through emails, personal or private websites and/or free social networking sites such as Facebook, Twitter or Multiply may be misconstrued as crimes. (Sec. 4.c.3)
7. The bill covers not only desktop and laptop computers, but all other electronic devices such as mobile phones, mp3 players and other personal electronic gadgets. (Sec. 3.d)
What must we do?
We must demand that the bill be reconsidered for second reading in order to thresh out all vague and controversial provisions. While H.B. 6794 may have the best of intentions, for it to truly benefit the millions of Internet users, mobile phone users and common citizens, it is imperative to consult a significant number of so-called netizens and stakeholders of this sector – including but not limited to online media outfits, bloggers, website owners, social networkers, email account holders and even budding online entrepreneurs.
We also recommend that the bill’s vague pronouncements be laid out more specifically in order to protect legitimate online activities conducted by ordinary citizens that may be unduly endangered by the bill’s broad clout. There are enough proposed legislation and existing laws that address cyber-related crimes such as sex trafficking, child pornography, voyeurism and Internet phishing. The campaign against such activities must not be used to justify the compromise of other legitimate electronic activities.
We also recommend that the government further strengthen its IT network, improve the IT infrastructure in the country and foster the development of IT in the country in order to empower institutions and individuals against malicious technological challenges, instead of compromising the inherent rights and freedoms of citizens in the use of information and communications technology.