Senator Santiago said 5 provisions of anti cyber law Unconstitutional – must be amended

 Senator Miriam Defensor-Santiago. Photo credit: Inquirer.net 

Senator Miriam Defensor-Santiago joined calls yesterday to amend the Cybercrime Prevention Act of 2012, saying five of its provisions are likely to be declared unconstitutional by the Supreme Court.

Santiago, who was a keynote speaker at the inter-university conference on business and economics at Adamson University, said at least five provisions listed in the new law are "too broad or too vague, tantamount to unconstitutionality."

Because it is "broadly written that it deters free expression," Santiago predicted that the SC will "strike down" the bill on its face, "because of its chilling effect."

"...The Supreme Court will reject the law because under the vagueness doctrine, it provides for punishment, without specifying what conduct is punishable and therefore, the law is void because it violates due process," said Santiago, who holds a doctorate in juridical science and attended postdoctoral studies on internet law at Harvard University.

"Prior censorship violates the overbreadth doctrine and the vagueness doctrine in constitutional law," she said.

"On its face, the Constitution provides for absolute freedom of speech by providing (that) 'No law shall be passed abridging the freedom of speech'," she also said.

"Notice that the constitutional language is absolute. However, jurists have tried to balance the absolute language with vital social needs," she added.

Santiago explained that in constitutional law, freedom of speech occupies a so-called preferred position.

"The preferred position of free speech in the Constitution means that any law limiting free speech should be presumed to be either neutral or presumed to be unconstitutional. There is no presumption of constitutionality," she said.

The "vague provisions" she listed included Sec. 4 paragraph 4 which makes libel a cybercrime if committed online; Section 5 which punishes any person who aids or abets the commission of any cybercrime, even if it is only through Facebook or Twitter; Sec. 6 which adopts the entire Penal Code, if the crime is committed by the use of Information technology, but the penalty shall be one degree higher; Sec. 7 which makes the same crime punishable, both under the Penal Code and the Cybercrime Act; and Sect. 19 which authorizes the Department of Justice (DOJ) to issue an order to restrict access to computer data which is found to be prima facie in violation of the new law or the so-called "take-down" issue.

Santiago said she participated during the interpellation period and the period of amendments when the anti-cybercrime measure was being deliberated in the Senate. She, however, failed to join the voting because she was on sick leave due to hypertension.

According to Santiago, one of her major amendments was to require a court order before law enforcement authorities can seize or disclose data other than traffic data. She also introduced an amendment requiring a court warrant for a search and seizure.

Sen. Edgardo Angara earlier vowed to look into Section 19 and amend the particular "take-down" provision so that the Justice Department can only order a closure of a suspected website based on a court order.

To strengthen the government's resolve against cybercrimes, Santiago urged the Philippines to become a party to the Budapest Cybercrime Convention of 2001.

She said that if properly worded, a cybercrime law "would be effective in preventing many cases of fraud."

Meanwhile, Malacañang yesterday appealed to hackers protesting Republic Act No. 10175, the Cybercrime Prevention Act of 2012, to voice out their opposition in the proper forum and not by attacking government websites especially those that are vital sources of information for the public.

Deputy Presidential spokesperson Abigail Valte said the attacks made by hackers since the implementation of the controversial measure last week have been "counter-productive" as they deprived the public of crucial pieces of information that can be accessed through government websites.

Valte issued this reaction as he was asked whether the Palace is amenable to the investigation being sought by Sen. Alan Peter Cayetano on the high vulnerability of government websites to hacking after the online portals of the Office of the President, Bangko Sentral ng Pilipinas (BSP), the Senate, the House of Representatives, and Metropolitan Waterworks and Sewerage System (MWSS) fell victims to hackers last week.

Manila Bulletin 

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Philippines lost ₱101.82 Billion to anomalies under Gloria Arroyo Government–COA

The Philippines lost $2.46 billion through misuse of state funds and assets during the latter years of graft-tainted ex-president Gloria Arroyo's rule, government auditors said Saturday (October 6, 2012).

The Commission on Audit highlighted anomalies that mostly occurred in the 2007-2009 period in its investigation of more than 61,000 government agencies last year.

"Most audit findings categorically indicate pecuniary loss on the part of the government, as a result of violations of law, rules and regulations," said the report, first posted on its website Saturday.

More than 4,000 cases of unauthorized expenses, unaccounted for cash advances, uncollected duties, fictitious claims, missing assets, or abandoned projects, cost the government ₱101.82 billion ($2.46 billion), it said.

The total is equivalent to 5.6 percent of the country's budget this year.

Its conditional cash transfer program, where poor families get monthly stipends in exchange for keeping their children in school, could not account for ₱3.77 billion.

Two state banks lent large sums unsecured by hard collateral, while Manila airport left 21 abandoned aircraft parked in an area exposed to natural elements, leading to their deterioration, despite being given funding to house them.

Among the biggest items were ₱1.862 billion in cash advances to two government treasurers in the impoverished province of Maguindanao and ₱1.123 billion in payments to "spurious" suppliers to a Muslim self-rule area.

Chief state auditor Grace Tan said in a letter sent to Manila newspapers Saturday that the audit covered items mostly relating to accounts prior to 2010, when Aquino was elected to office on an anti-corruption platform.

"Pecuniary loss does not necessarily result from graft, and it is only the courts that can make judgement of graft," Tan said.

Aquino has asked a special anti-graft prosecutor to file criminal charges against people deemed responsible for 744 of the cases, the auditors said.

The other cases are under investigation.

Arroyo was arrested and detained at a military hospital in Manila on Thursday after allegedly diverting P366 million in state lottery funds meant for charity programs into her election campaign kitty.

After being president for nearly 10 years, Arroyo was initially charged in November last year with vote fraud for allegedly conspiring to rig the 2007 senatorial elections, but later posted bail.

Her spokesmen did not reply to Agence France-Presse's requests for comment.

Aquino spokeswoman Abigail Valte told reporters Saturday: "We have not become complacent in our anti-corruption measures."

Agence France-Presse

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European Hackers shutdown Philippine Weather Websites – Anti Cyber Martial Law

Malacañang Palace appeals to hackers to cease attacks

European hackers have shut down Philippine government websites in an apparent protest against new cybercrime laws, officials say.

Hackers incensed by the Philippines' controversial cybercrime law have attacked government sites (Saturday October 6, 2012) that deliver emergency information during natural disasters, an official said Saturday.

Some sites have been unavailable for several hours, The Philippine Star reported. The targets included the sites of the National Bureau of Investigation and both houses of Congress.

President Benigno Aquino's spokeswoman Abigail Valte appealed for a stop to the attacks, on the websites and social media accounts of the weather service, the earthquake and tsunami monitoring service and the social welfare agency.

Valte did not disclose the extent of the damage, if any. All the sites she mentioned appeared to be up and working on Saturday afternoon.

"Many people are being affected by this," she said.

"We are aware of the opposition to the National Cybercrime Prevention Act. There are other ways to express opposition to it," she said in an appeal broadcast on government radio.

The Philippines sits on the "ring of fire" of tectonic activity that generates earthquakes around the Pacific, and is also regularly hit by typhoons, with the agencies' online arms providing citizens with disaster data and advice.

Valte reported the attacks a day after Aquino set out a broad defense of the cybercrime law, which seeks to stamp out offences such as fraud, identity theft, spamming and child pornography.

But it has sparked a storm of protests from critics who say it will severely curb Internet freedoms and intimidate netizens into self-censorship.

One of its most controversial elements mandates much longer jail sentences for people who post defamatory comments online than those who commit libel in traditional media.

It also allows the government to monitor online activities, such as e-mail, video chats and instant messaging, without a warrant, and to close down websites it deems to be involved in criminal activities.

The Supreme Court is hearing petitions to have the law declared illegal.

Aquino, whose mother led the "people power" revolution that toppled the military-backed Ferdinand Marcos regime in 1986, said he remained committed to freedom of speech.

But he said those freedoms were not unlimited.

Justice Secretary Leila De Lima ordered the hackers' arrest based on new laws.

"They will trace who the hackers are and apprehend them. For this purpose, they need to coordinate with the intelligence units of other investigative bodies," De Lima said.

The hackers face six to 12 years in prison if they are convicted. But Radio Australia reported they appear to be based in Europe.

De Lima said the new laws have a legitimate purpose: "The purpose of the law is to protect our citizens from unscrupulous and abusive actions of misfits and the wicked in society.

'Repeal Cybercrime Law' (Media Statement - Access)

Tens of millions of internet users in the Philippines woke up to a new reality: Sharing a link, clicking 'Like' on Facebook, or retweeting a message could land you 12 years in jail.¹

The Cybercrime Prevention Act, which just came into effect, is so broad and loophole-ridden that a wide range of online activity could be considered libelous. Even if you don't write the material, just sharing it with someone online could land you in prison.

In the face of this unjust law, Filipinos have been protesting in the streets and online to stand up for their rights. An alliance of organizations, bloggers, media, and everyday citizens have come together and brought international attention to their cause, and have reached a tipping point.²

That's why they have come to us for help. With elections just around the corner, we've been told that many politicians are downright scared of a national and international backlash, giving us the opportunity to convince them to junk this law for good. And we know there's nothing like an election to get politicians to listen.

Follow the link below to call on lawmakers to stand up for freedom of expression, and repeal the CyberCrime Prevention Act. We'll deliver your signatures to Filipino lawmakers next week so they know where the world stands.

Alarmingly, an accused citizen can't even use intent or good faith as a defense against this horrible law -- meaning that the government has unrestricted and unchecked power to throw whomever they like in jail. Not to mention, the law allows real-time data to be tracked, violating the privacy of internet users.

The Supreme Court on Tuesday is slated to take up the constitutionality of the law, and silent, non-violent protests will be held on Oct. 9 -- called Black Tuesday. With broad and unjust cybercrime laws being enacted around the world, we need to fight them one by one. That's why it's critical that the international community stands up on Black Tuesday. Start by following the link below:

https://www.accessnow.org/stop-cyber-martial-law

While we respect the impartiality of the court, this gives us the perfect moment to rally to protect free of expression. Indeed, many Filipinos online have begun sending around memes to show they are not afraid to stand up unjust laws that attempt to silence free speech.³

This defiant and democratic spirit has been seen before. Over 25 years ago, Filipinos fought and won to overcome martial law and institute a democratic government. But what makes this law's passage curious is that President Aquino is the son of Corazon Aquino, former president and leader of the opposition party that restored democracy in the Philippines in 1986. So many Filipinos are left wondering why the son of the leader who fought for their rights is allowing free speech to be taken away.

With all this coming to a head, we aren't just taking a stance against a law, but are standing up for democratic values bravely won not too long ago. Let's remind the president just what so many Filipinos fought for. Sign the petition by clicking the link below, and join the millions of Filipinos who are fighting for their right to freely speak their mind.

In the words of Dakila, our ally in the Philippines, "We say, never again to martial law -- cyber or not."

For a free internet,

The Access Team

GMA News, Mindanao Examiner, UPI Radio Australia, Agence France-Presse

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