A dangerously flawed cybercrime law

These are my thoughts on the newly-enacted Cybercrime Prevention Act of 2012 (RA 10175). I believe that this law has a huge potential to undermine constitutionally safeguarded liberties, especially freedom of expression. There are provisions in this new law that are flawed as well. Here are the reasons why I think so:

Provision against “cyber-squatting”

Section 4(a)(6) states that cyber-squatting is now an illegal activity:

Cyber-squatting — The acquisition of a domain name over the Internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

First of all, the government of the Philippines does not have jurisdiction over domain names. It does not even have jurisdiction over the country code top-level domain assigned to us, .ph, which is solely administered by a private entity. The only authority our government has is over the sub-top-level domain, .gov.ph. Does our government believe it can prosecute “cyber-squatting” of, say, .com or .net domain names registered outside the country? If it did, they’d be opening a whole can of distasteful worms.

Second, the wording of this so-called offense is vague (as are other provisions of this embarrassing piece of legislation). How similar is “similar”? And what if two people had nearly identical names? Let’s say my name was Juan dela Cruz and another netizen’s was John dela Cruz, and both of us were interested in the domain name jdelacruz.com.ph. In the online environment before RA 10175, it was survival of the fittest: whoever registered the domain name first won, hands down. Of course, the loser could opt for jdelacruz.ph, if he were so inclined.

Let’s say I was the winner. If I’m reading this law correctly, it would seem that John could very well sue me for cyber-squatting! And to make matters complicated, if John did register jdelacruz.ph, I could sue him too, for the exact same reason.

Section 4(a)(6)(iii). Well. This single line alone evinces the legislators’ tenuous grasp of what the Internet is, let alone what domain names are for.

Provision against cybersex

My beef with this is the use of the term “cybersex”. The authors of the law should have used cyber-prostitution instead. As it is, unscrupulous or malicious enforcers might use this law against the activities of two consenting adults engaged in consensual online sexual gratification.

This is a potential threat to our constitutional right to privacy.

Provision against libel

Why this is part of a law against cybercrime is beyond me. (And why was there no provision against cyber-plagiarism, hmm?)

In RA 10175 the outdated libel law is perpetuated. Contrary to guarantees of free expression, as well as freedom of the press, Section 4(b)(4) creates an environment that curtails civil liberties, by imposing the burden of “prior restraint”. In other words, censorship.

Filipinos have always enjoyed press freedom — since we ousted the Marcos dictatorship, that is. And online, we are known to be vigorously engaged in colorful exchanges that oftentimes border on slanderous assertions. No matter that some journalists and bloggers have been branded as callous and disparaging. The important thing: nobody was afraid to express their opinion. (That they apologized or not when proven wrong is a different story altogether.)

Free speech is vital in a democracy, because it is an insurance policy against corruption and other misdeeds by those in power. Therefore, instituting prior restraints against a free-wheeling discussion of issues, against an unencumbered media (traditional or otherwise) is undemocratic and unconstitutional.

Take note. Only in this part does the law expressly provide for “any other similar means which may be devised in the future” to prosecute libel.

Libel should be decriminalized. As it stands, Article 355 of the Revised Penal Code, as amended by RA 10175, not only has the potential to deter libelous acts, but could very well discourage legitimate airing of grievances. Corrupt politicians could use this new law to silence critical bloggers and journalists: whether an online libel case prospered or not, the fear and prohibitive expense of getting sued could effectively result in self-censorship.

Criminalizing intermediary liability?

In 2007, a Pasig court asserted that our legal system does not penalize Web hosts or online forum owners for the illegal activities of online service users. But RA 10175, in Section 5(a), seems to negate this.

Aiding or Abetting in the Commission of Cybercrime — Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

A malicious plaintiff could file a libel suit against a Web hosting service provider for allegedly libelous content that the latter was hosting. It could be argued in court that the host was aware of the content, and yet allowed it to be hosted anyway, so that could be construed as being “willful.”

Do we want censorship to gain ground in this country?

Warrantless access by law enforcement authorities

Section 12 states that law enforcers, “with due cause,” are authorized to access traffic data even without a court-issued warrant. That is an outrage!

The authors of this law naively state that such access does not include “content or identities.” Once a service provider, let’s say a Web hosting service company, allows access to a client account, access to the owner’s identity will certainly be easily obtainable as well! Doesn’t this run against our basic right to privacy?

And here we run into another question of jurisdiction. What if the computer system hosting allegedly criminal content existed outside the Republic of the Philippines? What then?

Blanket authority to censor

In Section 19 we see a China-esque scheme of imposing authority over online content.

Restricing or Blocking Access to Computer Data — When a [sic] computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

When computer data is deemed illegal, without proof save the gut feel of law enforcers, the Department of Justice can have a website shut down? What if someone on Twitter posted an obviously libelous message that denigrated the reputation of, say, an elected official, would the DOJ have the authority to have twitter.com shut down? or have the responsible Twitter account deactivated?

Is it that some in government are lusting after the Great Firewall of China?

For all of the above, I maintain that the Cybercrime Prevention Act of 2012 is seriously flawed and should be repealed post-haste.

The Philippine Constitution states that:

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 government for redress of grievances.
[Article III Section 4]