Philippine Supreme Court Jurisprudence

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CONCURRING AND DISSENTING OPINION

SERENO, CJ:

	The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.
	Justice Isagani A. Cruz1

When the two other branches of government transgress their inherent powers, often out of a well-intentioned zeal that causes an imbalance between authority and liberty, it is the Court’s solemn duty to restore the delicate balance that has been upset. This is the difficult task before us now, involving as it does our power of judicial review over acts of a coequal branch.

The task is complicated by the context in which this task is to be discharged: a rapidly evolving information and communications technology, which has been an enormous force for good as well as for evil. Moreover, the Court is forced to grapple with the challenge of applying, to the illimitable cyberspace, legal doctrines that have heretofore been applied only to finite physical space. Fortunately, we have the Constitution as our North Star as we try to navigate carefully the uncharted terrain of cyberspace as the arena of the conflict between fundamental rights and law enforcement.

I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime Prevention Act on the real-time collection of traffic data and Section 19 on the restriction or blocking of access to computer data. I also adopt the ponencia’s discussion of Sections 12 and 19. I write this Separate Opinion, however, to explain further why real-time collection of traffic data may be indispensable in certain cases, as well as to explain how the nature of traffic data per se undercuts any expectation of privacy in them.

I also concur with the ponencia’s partial invalidation of Section 4(c)(4) on libel insofar as it purports to create criminal liability on the part of persons who receive a libelous post and merely react to it; and of Section 7, in so far as it applies to libel.

However, I dissent from the ponencia’s upholding of Section 6 as not unconstitutional in all its applications. I find Section 6 to be unconstitutional insofar as it applies to cyberlibel because of its “chilling effect.” Hence, I am writing this Separate Opinion also to explain my dissent on this issue.

I find the rest of the constitutional challenges not proper for a pre-enforcement judicial review and therefore dismissible.

I.

THIS COURT MAY EMPLOY A PRE-ENFORCEMENT
JUDICIAL REVIEW OF THE CYBERCRIME PREVENTION ACT.

As distinguished from the general notion of judicial power, the power of judicial review especially refers to both the authority and the duty of this Court to determine whether a branch or an instrumentality of government has acted beyond the scope of the latter’s constitutional powers.² It includes the power to resolve cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.³ This power, first verbalized in the seminal case Marbury v. Madison,⁴ has been exercised by the Philippine Supreme Court since 1902.⁵ The 1936 case Angara v. Electoral Commission exhaustively discussed the concept as follows:⁶

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x.

And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

x x x x As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed “judicial supremacy” which properly is the power of judicial review under the Constitution. (Emphases supplied)

The power of judicial review has since been strengthened in the 1987 Constitution, extending its coverage to the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.⁷ The expansion made the political question doctrine “no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review.”⁸ Thus, aside from the test of constitutionality, this Court has been expressly granted the power and the duty to examine whether the exercise of discretion in those areas that are considered political questions was attended with grave abuse.⁹

This moderating power of the Court, however, must be exercised carefully, and only if it cannot be feasibly avoided, as it involves the delicate exercise of pronouncing an act of a branch or an instrumentality of government unconstitutional, at the risk of supplanting the wisdom of the constitutionally appointed actor with that of the judiciary.¹⁰ It cannot be overemphasized that our Constitution was so incisively designed that the different branches of government were made the respective experts in their constitutionally assigned spheres.¹¹ Hence, even as the Court dutifully exercises its power of judicial review to check - in this case, the legislature - it must abide by the strict requirements of its exercise under the Constitution. Indeed, “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”¹²

Demetria v. Alba¹³ and Francisco v. House of Representatives¹⁴ cite the “seven pillars” of the limitations of the power of judicial review, enunciated in the concurring opinion of U.S. Supreme Court Justice Louis Brandeis in Ashwander v. Tennessee Valley Authority¹⁵ as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions “is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” x x x.
2. The Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.” x x x. “It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”
3. The Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” x x x.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. x x x.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. x x x. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. x x x.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. x x x.
7. “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (Citations omitted, emphases supplied)

These are specific safeguards laid down by the Court when it exercises its power of judicial review. Thus, as a threshold condition, the power of judicial review may be invoked only when the following four stringent requirements are satisfied: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.¹⁶

Specifically focusing on the first requisite, it necessitates that there be an existing case or controversy that is appropriate or ripe for determination as opposed to a case that is merely conjectural or anticipatory.¹⁷ The case must involve a definite and concrete issue concerning real parties with conflicting legal rights and opposing legal claims, admitting of a specific relief through a decree conclusive in nature.¹⁸ The “ripeness” for adjudication of the controversy is generally treated in terms of actual injury to the plaintiff.¹⁹ Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. The case should not equate with a mere request for an opinion or an advice on what the law would be upon an abstract, hypothetical, or contingent state of facts.²⁰ As explained in Angara v. Electoral Commission: ²¹

[The] power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Emphases supplied)

According to one of the most respected authorities in American constitutional law, Professor Paul A. Freund, the actual case or controversy requirement is a crucial restraint on the power of unelected judges to set aside the acts of the people’s representative to Congress.²² Furthermore, he explains:²³

The rules of “case and controversy” can be seen as the necessary corollary of this vast power - necessary for its wise exercise and its popular acceptance. By declining to give advisory opinions, the Court refrains from intrusion into the lawmaking process. By requiring a concrete case with litigants adversely affected, the Court helps itself to avoid premature, abstract, ill-informed judgments. By placing a decision on a non-constitutional ground whenever possible, the Court gives the legislature an opportunity for sober second thought, an opportunity to amend the statue to obviate the constitutional question, a chance to exercise that spirit of self-scrutiny and self-correction which is the essence of a successful democratic system. (Emphases supplied)

While the actual controversy requirement has been largely interpreted in the light of the implications of the assailed law vis-à-vis the legally demandable rights of real parties and the direct injury caused by the assailed law, we have also exceptionally recognized the possibility of lodging a constitutional challenge sans a pending case involving a directly injured party. In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,²⁴ we conceded the possibility of a pre-enforcement judicial review of a penal statute, so long as there is a real and credible threat of prosecution involving the exercise of a constitutionally protected conduct or activity.²⁵ We noted that the petitioners therein should not be required to expose themselves to criminal prosecution before they could assail the constitutionality of a statute, especially in the face of an imminent and credible threat of prosecution.²⁶

On 5 February 2013, this Court extended indefinitely the temporary restraining order enjoining the government from implementing and enforcing the Cybercrime Prevention Act of 2012. As the assailed law is yet to be enforced, I believe that in order to give due course to the Petitions, we would have to test their qualification for pre-enforcement judicial review of the assailed law and its provisions.

In discussing the requirements of a pre-enforcement judicial review, we refer to our ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial review of the assailed provisions of the Human Security Act of 2007, because petitioners failed to show that the law forbade them from exercising or performing a constitutionally protected conduct or activity that they sought to do. We also explained that the obscure and speculative claims of the petitioners therein that they were being subjected to sporadic “surveillance” and tagged as “communist fronts” were insufficient to reach the level of a credible threat of prosecution that would satisfy the actual-controversy requirement. Thus, from the facts they had shown, we ruled that the Court was merely “being lured to render an advisory opinion, which [was] not its function.”²⁷

We then drew a distinction between the facts in Southern Hemisphere and those in Holder v. Humanitarian Law Project, a case decided by the United States Supreme Court. We noted that in Holder, a pre-enforcement judicial review of the assailed criminal statue was entertained because the plaintiffs therein had successfully established that there was a genuine threat of imminent prosecution against them, thereby satisfying the actual-controversy requirement. The case concerned a new law prohibiting the grant of material support or resources to certain foreign organizations engaged in terrorist activities. Plaintiffs showed that they had been providing material support to those declared as foreign terrorist organizations; and that, should they continue to provide support, there would be a credible threat of prosecution against them pursuant to the new law. The plaintiffs therein insisted that they only sought to facilitate the lawful, nonviolent purposes of those groups - such as the latter’s political and humanitarian activities - and that the material-support law would prevent the plaintiffs from carrying out their rights to free speech and to association. Based on the foregoing considerations, the U.S. Supreme Court concluded that the claims of the plaintiffs were suitable for judicial review, as there was a justiciable case or controversy.

We may thus cull from the foregoing cases that an anticipatory petition assailing the constitutionality of a criminal statute that is yet to be enforced may be exceptionally given due course by this Court when the following circumstances are shown: (a) the challenged law or provision forbids a constitutionally protected conduct or activity that a petitioner seeks to do; (b) a realistic, imminent, and credible threat or danger of sustaining a direct injury or facing prosecution awaits the petitioner should the prohibited conduct or activity be carried out; and (c) the factual circumstances surrounding the prohibited conduct or activity sought to be carried out are real, not hypothetical and speculative, and are sufficiently alleged and proven.²⁸ It is only when these minimum conditions are satisfied can there be a finding of a justiciable case or actual controversy worthy of this Court’s dutiful attention and exercise of pre-enforcement judicial review. Furthermore, since the issue of the propriety of resorting to a pre-enforcement judicial review is subsumed under the threshold requirement of actual case or controversy, we need not go through the merits at this stage. Instead, the determination of whether or not to exercise this power must hinge solely on the allegations in the petition, regardless of the petitioner’s entitlement to the claims asserted.

A review of the petitions before us shows that, save for the Disini Petition,²⁹ all petitions herein have failed to establish that their claims call for this Court’s exercise of its power of pre-enforcement judicial review.

Petitioners allege that they are users of various information and communications technologies (ICT) as media practitioners, journalists, lawyers, businesspersons, writers, students, Internet and social media users, and duly elected legislators. However, except for the Petition of Disini, none of the other petitioners have been able to show that they are facing an imminent and credible threat of prosecution or danger of sustaining a direct injury. Neither have they established any real, factual circumstances in which they are at risk of direct injury or prosecution, should those acts continue to be carried out. They have simply posed hypothetical doomsday scenarios and speculative situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of digital and personal information by the government; or a wanton taking down of legitimate websites.³⁰ Others have made outright legal queries on how the law would be implemented in various circumstances, such as when a person disseminates, shares, affirms, “likes,” “retweets,” or comments on a potentially libelous article.³¹ A considerable number of them have merely raised legal conclusions on the implication of the new law, positing that the law would per se prevent them from freely expressing their views or comments on intense national issues involving public officials and their official acts.³²While these are legitimate concerns of the public, giving in to these requests for advisory opinion would amount to an exercise of the very same function withheld from this Court by the actual controversy requirement entrenched in Section 1, Article III of our Constitution.

The Petition of Disini is the only pleading before the Court that seems to come close to the actual-controversy requirement under the Constitution. What sets the Petition apart is that it does not merely allege that petitioners therein are ICT users who have posted articles and blogs on the Internet. The Petition also cites particular blogs or online articles of one of the petitioners who was critical of a particular legislator.³³ Furthermore, it refers to a newspaper article that reported the legislator’s intent to sue under the new law, once it takes effect. The pertinent portion of the Petition reads:³⁴

5. Petitioners are all users of the Internet and social media. Petitioner Ernesto Sonido, Jr. (“Petitioner Sonido”), in particular, maintains the blog “Baratillo Pamphlet” over the Internet.
6. On August 22, 2012 and September 7, 2012, Petitioner Sonido posted 2 blogs entitled “Sotto Voce: Speaking with Emphasis” and “Sotto and Lessons on Social Media” in which he expressed his opinions regarding Senator Vicente “Tito” Sotto III’s (“Senator Sotto”) alleged plagiarism of online materials for use in his speech against the Reproductive Health Bill.
7. On August 30, 2012, Senator Sotto disclosed that the Cybercrime Bill was already approved by the Senate and the House of Representatives and was merely awaiting the President’s signature. He then warned his critics that once signed into law, the Cybercrime Bill will penalize defamatory statements made online. To quote Senator Sotto:

   “Walang ginawa yan [internet users] umaga, hapon, nakaharap sa computer, target nuon anything about the [Reproductive Health] Bill. Ganun ang strategy nun and unfortunately, di panapipirmahan ang Cybercrime bill. Pwede na sana sila tanungin sa pagmumura at pagsasabi ng di maganda. Sa Cybercrime bill, magkakaroon ng accountability sa kanilang pinagsasabi, penalties na haharapin, same penalties as legitimate journalists, anything that involves the internet,” he said.

8. The threat of criminal prosecution that was issued by Senator Sotto affected not only bloggers like Petitioner Sonido but all users of the Internet and social media as the other Petitioners herein who utilize online resources to post comments and express their opinions about social issues.
9. The President finally signed the Cybercrime Act into law on September 12, 2012.
10. With the passage of the Cybercrime Act, the threat that was issued by Senator Sotto against his online critics has become real. (Emphases and italics supplied)

The Petition of Disini appears to allege sufficient facts to show a realistic, imminent, and credible danger that at least one of its petitioners may sustain a direct injury should respondents proceed to carry out the prohibited conduct or activity. First, there was a citation not only of a particular blog, but also of two potentially libelous entries in the blog. Second, the plausibly libelous nature of the articles was specifically described. Third, the subject of the articles, Senator Vicente Sotto III, was alleged to have made threats of using the assailed statute to sue those who had written unfavorably about him; a verbatim quote of the legislator’s threat was reproduced in the Petition. Fourth, the person potentially libeled is a nationally elected legislator.

This combination of factual allegations seems to successfully paint a realistic possibility of criminal prosecution under Section 4(c)(4) of a specific person under the assailed law. Consequently, there is now also a possibility of the writer being penalized under Section 6, which raises the penalty for crimes such as libel by one degree when committed through ICT. The alleged facts would also open the possibility of his being charged twice under Section 4(c)(4) and Article 353 of the Revised Penal Code by virtue of Section 7. Furthermore, since he might become a suspect in the crime of libel, his online activities might be in danger of being investigated online by virtue of Section 12 or his access to computer data might be restricted under Section 19.

Therefore, it is submitted that the Court must limit its discussion of the substantive merits of the cases to the Petition of Disini, at the most and only on the provisions questioned therein.

II.

PARTICULAR PROVISIONS OF THE
CYBERCRIME PREVENTION ACT
MAY BE FACIALY INVALIDATED.

A facial challenge refers to the call for the scrutiny of an entire law or provision by identifying its flaws or defects, not only on the basis of its actual operation on the attendant facts raised by the parties, but also on the assumption or prediction that the very existence of the law or provision is repugnant to the Constitution.³⁵ This kind of challenge has the effect of totally annulling the assailed law or provision, which is deemed to be unconstitutional per se. The challenge is resorted to by courts, especially when there is no instance to which the law or provision can be validly applied.³⁶

In a way, a facial challenge is a deviation from the general rule that Courts should only decide the invalidity of a law “as applied” to the actual, attending circumstances before it.³⁷ An as-applied challenge refers to the localized invalidation of a law or provision, limited by the factual milieu established in a case involving real litigants who are actually before the Court.³⁸ This kind of challenge is more in keeping with the established canon of adjudication that “the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied.”³⁹ Should the petition prosper, the unconstitutional aspects of the law will be carved away by invalidating its improper applications on a case-to-case basis.⁴⁰ For example, in Ebralinag v. Division of Superintendent of Schools of Cebu,⁴¹ the Court exempted petitioner-members of the religious group Jehovah’s Witness from the application of the Compulsory Flag Ceremony in Educational Institutions Act on account of their religious beliefs. The Court ruled that the law requiring them to salute the flag, sing the national anthem, and recite the patriotic pledge cannot be enforced against them at the risk of expulsion, because the law violated their freedom of religious expression. In effect, the law was deemed unconstitutional insofar as their religious beliefs were concerned.

Because of its effect as a total nullification, the facial invalidation of laws is deemed to be a “manifestly strong medicine” that must be used sparingly and only as a last resort.⁴² The general disfavor towards it is primarily due to the “combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes.”⁴³ Claims of facial invalidity “raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.’”⁴⁴

A. Section 6 - Increase of Penalty by One Degree

Section 6 was worded to apply to all existing penal laws in this jurisdiction. Due to the sheer extensiveness of the applicability of this provision, I believe it unwise to issue a wholesale facial invalidation thereof, especially because of the insufficiency of the facts that would allow the Court to make a conclusion that the provision has no valid application.

Alternatively, the discussion can be limited to the allegations raised in the Petition of Disini concerning the right to free speech. The Petition asserts that Section 6 (on the increase of penalty by one degree), in conjunction with the provision on cyberlibel, has the combined chilling effect of curtailing the right to free speech. The Petition posits that the law “imposes heavier penalties for online libel than paper-based libel” in that the imposable penalty for online libel is now increased from prisión correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months) to prisión mayor in its minimum and medium periods (6 years and 1 day to 10 years).⁴⁵

The ponencia correctly holds that libel is not a constitutionally protected conduct. It is also correct in holding that, generally, penal statutes cannot be invalidated on the ground that they produce a “chilling effect,” since by their very nature, they are intended to have an in terrorem effect (benign chilling effect)⁴⁶ to prevent a repetition of the offense and to deter criminality.⁴⁷ The “chilling effect” is therefore equated with and justified by the intended in terrorem effect of penal provisions.

This does not mean, however, that the Constitution gives Congress the carte blanche power to indiscriminately impose and increase penalties. While the determination of the severity of a penalty is a prerogative of the legislature, when laws and penalties affect free speech, it is beyond question that the Court may exercise its power of judicial review to determine whether there has been a grave abuse of discretion in imposing or increasing the penalty. The Constitution’s command is clear: “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.” Thus, when Congress enacts a penal law affecting free speech and accordingly imposes a penalty that is so discouraging that it effectively creates an invidious chilling effect, thus impeding the exercise of speech and expression altogether, then there is a ground to invalidate the law. In this instance, it will be seen that the penalty provided has gone beyond the in terrorem effect needed to deter crimes and has thus reached the point of encroachment upon a preferred constitutional right. I thus vote to facially invalidate Section 6 insofar as it applies to the crime of libel.

As will be demonstrated below, the confluence of the effects of the increase in penalty under this seemingly innocuous provision, insofar as it is applied to libel, will practically result in chilling the right of the people to free speech and expression.

Section 6 creates an additional in terrorem effect on top of that already created by Article 355 of the Revised Penal Code

The basic postulate of the classical penal system on which our Revised Penal Code is based is that humans are rational and calculating beings who guide their actions by the principles of pleasure and pain.⁴⁸ They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible gain or advantage in committing the crime.⁴⁹ This consequence is what is referred to as the in terrorem effect sought to be created by the Revised Penal Code in order to deter the commission of a crime.⁵⁰ Hence, in the exercise of the people’s freedom of speech, they carefully decide whether to risk publishing materials that are potentially libelous by weighing the severity of the punishment - if and when the speech turns out to be libelous - against the fulfillment and the benefits to be gained by them.

Our Revised Penal Code increases the imposable penalty when there are attending circumstances showing a greater perversity or an unusual criminality in the commission of a felony.⁵¹ The intensified punishment for these so-called aggravating circumstances is grounded on various reasons, which may be categorized into (1) the motivating power itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or (5) the personal circumstances of the offender or of the offended party.⁵² Based on the aforementioned basic postulate of the classical penal system, this is an additional in terrorem effect created by the Revised Penal Code, which targets the deterrence of a resort to greater perversity or to an unusual criminality in the commission of a felony.

Section 4(c)(4) of the Cybercrime Prevention Act expressly amended Article 355 of the Revised Penal Code, thereby clarifying that the use of a “computer system or any other similar means” is a way of committing libel. On the other hand, Section 6 of the Cybercrime Prevention Act introduces a qualifying aggravating circumstance, which reads: Sec.

6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. (Emphases supplied)

A perfunctory application of the aforementioned sections would thus suggest the amendment of the provision on libel in the Revised Penal Code, which now appears to contain a graduated scale of penalties as follows:

ARTICLE 355. Libel by Means Writings or Similar Means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prisión correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

[Libel committed by, through and with the use of a computer system or any other similar means which may be devised in the future shall be punished by⁵³prisión correccional in its maximum period to prisión mayor in its minimum period]. (Emphases supplied)

Section 6 effectively creates an additional in terrorem effect by introducing a qualifying aggravating circumstance: the use of ICT. This additional burden is on top of that already placed on the crimes themselves, since the in terrorem effect of the latter is already achieved through the original penalties imposed by the Revised Penal Code. Consequently, another consideration is added to the calculation of penalties by the public. It will now have to weigh not only whether to exercise freedom of speech, but also whether to exercise this freedom through ICT.

One begins to see at this point how the exercise of freedom of speech is clearly burdened. The Court can take judicial notice of the fact that ICTs are fast becoming the most widely used and accessible means of communication and of expression. Educational institutions encourage the study of ICT and the acquisition of the corresponding skills. Businesses, government institutions and civil society organizations rely so heavily on ICT that it is no exaggeration to say that, without it, their operations may grind to a halt. News organizations are increasingly shifting to online publications, too. The introduction of social networking sites has increased public participation in socially and politically relevant issues. In a way, the Internet has been transformed into “freedom parks.” Because of the inextricability of ICT from modern life and the exercise of free speech and expression, I am of the opinion that the increase in penalty per se effectively chills a significant amount of the exercise of this preferred constitutional right.

The chill does not stop there. As will be discussed below, this increase in penalty has a domino effect on other provisions in the Revised Penal Code thereby further affecting the public’s calculation of whether or not to exercise freedom of speech. It is certainly disconcerting that these effects, in combination with the increase in penalty per se, clearly operate to tilt the scale heavily against the exercise of freedom of speech.

The increase in penalty also results in the imposition of harsher accessory penalties.

Under the Revised Penal Code, there are accessory penalties that are inherent in certain principal penalties. Article 42 thereof provides that the principal (afflictive) penalty of prisión mayor carries with it the accessory penalty of temporary absolute disqualification. According to Article 30, this accessory penalty shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all right to retirement pay or other pension for any office formerly held. (Emphases supplied)

Furthermore, the accessory penalty of perpetual special disqualification from the right of suffrage shall be meted out to the offender. Pursuant to Article 32, this penalty means that the offender shall be perpetually deprived of the right (a) to vote in any popular election for any public office; (b) to be elected to that office; and (c) to hold any public office.⁵⁴ This perpetual special disqualification will only be wiped out if expressly remitted in a pardon.

On the other hand, Article 43 provides that when the principal (correctional) penalty of prisión correccional is meted out, the offender shall also suffer the accessory penalty of suspension from public office and from the right to follow a profession or calling during the term of the sentence. While the aforementioned principal penalty may carry with it the accessory penalty of perpetual special disqualification from the right of suffrage, it will only be imposed upon the offender if the duration of imprisonment exceeds 18 months.

Before the Cybercrime Prevention Act, the imposable penalty for libel under Art. 355 of the Revised Penal Code, even if committed by means of ICT, is prisión correccional in its minimum and medium periods. Under Section 6 of the Cybercrime Prevention Act, the imposable penalty for libel qualified by ICT is now increased to prisión correccional in its maximum period to prisión mayor in its minimum period.⁵⁵ Consequently, it is now possible for the above-enumerated harsher accessory penalties for prisión mayor to attach depending on the presence of mitigating circumstances.

Hence, the public will now have to factor this change into their calculations, which will further burden the exercise of freedom of speech through ICT.

The increase in penalty neutralizes the full benefits of the law on probation, effectively threatening the public with the guaranteed imposition of imprisonment and the accessory penalties thereof.

Probation⁵⁶ is a special privilege granted by the State to penitent, qualified offenders who immediately admit to their liability and thus renounce the right to appeal. In view of their acceptance of their fate and willingness to be reformed, the State affords them a chance to avoid the stigma of an incarceration record by making them undergo rehabilitation outside prison.

Section 9 of Presidential Decree No. (P.D.) 968, as amended - otherwise known as the Probation Law - provides as follows:

Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

(a)	sentenced to serve a maximum term of imprisonment of more than six years;
(b)	convicted of subversion or any crime against the national security or the public order;
(c)	who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos;
(d)	who have been once on probation under the provisions of this Decree; and
(e)	who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. (Emphasis supplied)

Pursuant to Article 355 of the Revised Penal Code, libel is punishable by prisión correccional in its minimum (from 6 months and 1 day to 2 years and 4 months) and medium (from 2 years, 4 months, and 1 day to 4 years and 2 months) periods. However, in the light of the increase in penalty by one degree under the Cybercrime Prevention Act, libel qualified by the use of ICT is now punishable by prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years).⁵⁷ This increased penalty means that if libel is committed through the now commonly and widely used means of communication, ICT, libel becomes a non-probationable offense.

One of the features of the Probation Law is that it suspends the execution of the sentence imposed on the offender.⁵⁸ In Moreno v. Commission on Elections,⁵⁹ we reiterated our discussion in Baclayon v. Mutia⁶⁰ and explained the effect of the suspension as follows:

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prisión correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. (Emphases supplied)

It is not unthinkable that some people may risk a conviction for libel, considering that they may avail themselves of the privilege of probation for the sake of exercising their cherished freedom to speak and to express themselves. But when this seemingly neutral technology is made a qualifying aggravating circumstance to a point that a guaranteed imprisonment would ensue, it is clear that the in terrrorem effect of libel is further magnified, reaching the level of an invidious chilling effect. The public may be forced to forego their prized constitutional right to free speech and expression in the face of as much as eight years of imprisonment, like the sword of Damocles hanging over their heads.

Furthermore, it should be noted that one of the effects of probation is the suspension not only of the penalty of imprisonment, but also of the accessory penalties attached thereto. Hence, in addition to the in terrorem effect supplied by the criminalization of a socially intolerable conduct and the in terrorem effect of an increase in the duration of imprisonment in case of the presence of an aggravating circumstance, the Revised Penal Code threatens further⁶¹ by attaching accessory penalties to the principal penalties.

Section 6 increases the prescription periods for the crime of cyberlibel and its penalty to 15 years.

Crimes and their penalties prescribe. The prescription of a crime refers to the loss or waiver by the State of its right to prosecute an act prohibited and punished by law.⁶² It commences from the day on which the crime is discovered by the offended party, the authorities or their agents.⁶³ On the other hand, the prescription of the penalty is the loss or waiver by the State of its right to punish the convict.⁶⁴ It commences from the date of evasion of service after final sentence. Hence, in the prescription of crimes, it is the penalty prescribed by law that is considered; in the prescription of penalties, it is the penalty imposed.⁶⁵

By setting a prescription period for crimes, the State by an act of grace surrenders its right to prosecute and declares the offense as no longer subject to prosecution after a certain period.⁶⁶ It is an amnesty that casts the offense into oblivion and declares that the offenders are now at liberty to return home and freely resume their activities as citizens.⁶⁷ They may now rest from having to preserve the proofs of their innocence, because the proofs of their guilt have been blotted out.⁶⁸

The Revised Penal Code sets prescription periods for crimes according to the following classification of their penalties:

ARTICLE 90. Prescription of Crimes. — Crimes punishable by death, reclusión perpetua or reclusión temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The offenses of oral defamation and slander by deed shall prescribe in six months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article. (Emphases supplied)

On the other hand, Article 92 on the prescription of penalties states:

ARTICLE 92. When and How Penalties Prescribe. — The penalties imposed by final sentence prescribe as follows:

1. Death and reclusión perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year. (Emphases supplied)

As seen above, before the passage of the Cybercrime Prevention Act, the state effectively waives its right to prosecute crimes involving libel. Notably, the prescription period for libel used to be two years, but was reduced to one year through Republic Act No. 4661 on 18 June 1966.⁶⁹ Although the law itself does not state the reason behind the reduction, we can surmise that it was made in recognition of the harshness of the previous period, another act of grace by the State.

With the increase of penalty by one degree pursuant to Section 6 of the Cybercrime Prevention Act, however, the penalty for libel through ICT becomes afflictive under Article 25 of the Revised Penal Code. Accordingly, under the above-quoted provision, the crime of libel through ICT shall now possibly prescribe in 15 years - a 15-fold increase in the prescription period.⁷⁰ In effect, the State’s grant of amnesty to the offender will now be delayed by 14 years more. Until a definite ruling from this Court in a proper case is made, there is uncertainty as to whether the one-year prescription period for ordinary libel will also apply to libel through ICT.

Similarly, under Article 92, the prescription period for the penalty of libel through ICT is also increased from 10 years - the prescription period for correctional penalties - to 15 years, the prescription for afflictive penalties other than reclusión perpetua. These twin increases in both the prescription period for the crime of libel through ICT and in that for its penalty are additional factors in the public’s rational calculation of whether or not to exercise their freedom of speech and whether to exercise that freedom through ICT. Obviously, the increased prescription periods - yet again - tilt the scales, heavily against the exercise of this freedom.

Regrettably, the records of the Bicameral Conference Committee deliberation do not show that the legislators took into careful consideration this domino effect that, when taken as a whole, clearly discourages the exercise of free speech. This, despite the fact that the records of the committee deliberations show that the legislators became aware of the need to carefully craft the application of the one-degree increase in penalty and “to review again the Revised Penal Code and see what ought to be punished, if committed through the computer.” But against their better judgment, they proceeded to make an all-encompassing application of the increased penalty sans any careful study, as the proceedings show:

THE CHAIRMAN (REP. TINGA). With regard to some of these offenses, the reason why they were not included in the House version initially is that, the assumption that the acts committed that would make it illegal in the real world would also be illegal in the cyberworld, ‘no.

For example, libel po. When we discussed this again with the Department of Justice, it was their suggestion to include an all-encompassing paragraph...

THE CHAIRMAN (SEN. ANGARA). (Off-mike) A catch all-

THE CHAIRMAN (SEN. TINGA). ...a catch all, wherein all crimes defined and penalized by the Revised Penal Code as amended and special criminal laws committed by, through, and with the use of information and communications technology shall be covered by the relevant provisions of this act. By so doing, Mr. Chairman, we are saying that if we missed out on any of these crimes - we did not specify them, point by point - they would still be covered by this act, ‘no.

So it would be up to you, Mr. Chairman...

THE CHAIRMAN (SEN. ANGARA). Yeah.

x x x x

THE CHAIRMAN (REP. TINGA). ...do we specify this and then or do we just use an all-encompassing paragraph to cover them.

THE CHAIRMAN (SEN. ANGARA). Well, as you know, the Penal Code is really a very, very old code. In fact, it dates back to the Spanish time and we amend it through several Congresses. So like child pornography, this is a new crime, cybersex is a new crime. Libel through the use of computer system is a novel way of slandering and maligning people. So we thought that we must describe it with more details and specificity as required by the rules of the Criminal Law. We’ve got to be specific and not general in indicting a person so that he will know in advance what he is answering for. But we can still include and let-anyway, we have a separability clause, a catch all provision that you just suggested and make it number five. Any and all crimes punishable under the Revised Penal Code not heretofore enumerated above but are committed through the use of computer or computer system shall also be punishable but we should match it with a penalty schedule as well.

So we’ve got to review. Mukhang mahirap gawin yun, huh. We have to review again the Revised Penal Code and see what ought to be punished, if committed through the computer. Then we’ve got to review the penalty, huh.

THE CHAIRMAN (REP. TINGA). I agree, Mr. Chairman, that you are defining the newer crimes. But I also agree as was suggested earlier that there should be an all-encompassing phrase to cover these crimes in the Penal Code, ‘no. Can that not be matched with a penalty clause that would cover it as well? Instead of us going line by line through the-

THE CHAIRMAN (SEN. ANGARA). So you may just have to do that by a reference. The same penalty imposed under the Revised Penal Code shall be imposed on these crimes committed through computer or computer systems.

x x x x

THE CHAIRMAN (REP. TINGA). Okay.

And may we recommend, Mr. Chairman, that your definition of the penalty be added as well where it will be one degree higher...

THE CHAIRMAN (SEN. ANGARA). Okay.

THE CHAIRMAN (REP. TINGA). ...than the relevant penalty as prescribed in the Revised Penal Code.

So, we agree with your recommendation, Mr. Chairman.

x x x x

THE CHAIRMAN (SEN. ANGARA). Okay, provided that the penalty shall be one degree higher than that imposed under the Revised Penal Code.

Okay, so-

x x x x

REP. C. SARMIENTO. Going by that ruling, if one commits libel by email, then the penalty is going to be one degree higher...

THE CHAIRMAN (SEN. ANGARA). One degree higher.

REP. C. SARMIENTO . ...using email?

THE CHAIRMAN (SEN. ANGARA). Yes.

REP. C. SARMIENTO. As compared with libel through media or distributing letters or faxes.

THE CHAIRMAN (SEN. ANGARA). I think so, under our formulation. Thank you. (Emphases supplied)⁷¹

ICT as a qualifying aggravating circumstance cannot be offset by any mitigating circumstance.

A qualifying aggravating circumstance has the effect not only of giving the crime its proper and exclusive name, but also of placing the offender in such a situation as to deserve no other penalty than that especially prescribed for the crime.⁷² Hence, a qualifying aggravating circumstance increases the penalty by degrees. For instance, homicide would become murder if attended by the qualifying circumstance of treachery, thereby increasing the penalty from reclusión temporal to reclusión perpetua.⁷³ It is unlike a generic aggravating circumstance, which increases the penalty only to the maximum period of the penalty prescribed by law, and not to an entirely higher degree.⁷⁴ For instance, if the generic aggravating circumstance of dwelling or nighttime attends the killing of a person, the penalty will remain the same as that for homicide (reclusión temporal), but applied to its maximum period. Also, a generic aggravating circumstance may be offset by a generic mitigating circumstance, while a qualifying aggravating circumstance cannot be.⁷⁵

Hence, before the Cybercrime Prevention Act, libel - even if committed through ICT - was punishable only by prisión correccional from its minimum (6 months and 1 day to 2 years and 4 months) to its medium period (2 years, 4 months, and 1 day to 4 years and 2 months).

Under Section 6 however, the offender is now punished with a new range of penalty - prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years). And since the use of ICT as a qualifying aggravating circumstance cannot be offset by any mitigating circumstance, such as voluntary surrender, the penalty will remain within the new range of penalties.

As previously discussed, qualifying aggravating circumstances, by themselves, produce an in terrorem effect. A twofold increase in the maximum penalty - from 4 years and 2 months to 8 years - for the use of an otherwise beneficial and commonly used means of communication undeniably creates a heavier invidious chilling effect.

The Court has the duty to restore the balance and protect the exercise of freedom of speech.

Undeniably, there may be substantial distinctions between ICT and other means of committing libel that make ICT a more efficient and accessible means of committing libel. However, it is that same efficiency and accessibility that has made ICT an inextricable part of people’s lives and an effective and widely used tool for the exercise of freedom of speech, a freedom that the Constitution protects and that this Court has a duty to uphold.

Facial challenges have been entertained when, in the judgment of the Court, the possibility that the freedom of speech may be muted and perceived grievances left to fester outweighs the harm to society that may be brought about by allowing some unprotected speech or conduct to go unpunished.⁷⁶

In the present case, it is not difficult to see how the increase of the penalty under Section 6 mutes freedom of speech. It creates a domino effect that effectively subjugates the exercise of the freedom - longer prison terms, harsher accessory penalties, loss of benefits under the Probation Law, extended prescription periods, and ineligibility of these penalties to be offset by mitigating circumstances. What this Court said in People v. Godoy,⁷⁷ about “mankind’s age-old observation” on capital punishment, is appropriate to the penalty in the present case: “If it is justified, it serves as a deterrent; if injudiciously imposed, it generates resentment.”⁷⁸ Thus, I am of the opinion that Section 6, as far as libel is concerned, is facially invalid.

B. Section 12 - Real-Time Collection of Traffic Data.

Real-time collection of traffic data may be indispensable to law enforcement in certain instances. Also, traffic data per se may be examined by law enforcers, since there is no privacy expectation in them. However, the authority given to law enforcers must be circumscribed carefully so as to safeguard the privacy of users of electronic communications. Hence, I support the ponencia in finding the first paragraph of Section 12 unconstitutional because of its failure to provide for strong safeguards against intrusive real-time collection of traffic data. I clarify, however, that this declaration should not be interpreted to mean that Congress is now prevented from going back to the drawing board in order to fix the first paragraph of Section 12. Real-time collection of traffic data is not invalid per se. There may be instances in which a warrantless real-time collection of traffic data may be allowed when robust safeguards against possible threats to privacy are provided. Nevertheless, I am of the opinion that there is a need to explain why real-time collection of traffic data may be vital at times, as well as to explain the nature of traffic data.

Indispensability of Real-time Collection of Traffic Data

In order to gain a contextual understanding of the provision under the Cybercrime Prevention Act on the real-time collection of traffic data, it is necessary to refer to the Budapest Convention on Cybercrime, which the Philippine Government requested⁷⁹ to be invited to accede to in 2007. The Cybercrime Prevention Act was patterned after this convention.⁸⁰

The Budapest Convention on Cybercrime is an important treaty, because it is the first and only multinational agreement on cybercrime.⁸¹ It came into force on 1 July 2004⁸² and, to date, has been signed by 45 member states of the Council of Europe (COE), 36 of which have ratified the agreement.⁸³ Significantly, the COE is the leading human rights organization of Europe.⁸⁴ Moreover, two important non-member states or “partner countries”⁸⁵ have likewise ratified it - the United States on 29 September 2006 and Japan on 3 July 2012. Australia and the Dominican Republic have also joined by accession.⁸⁶

The Convention “represents a comprehensive international response to the problems of cybercrime”⁸⁷ and is the product of a long process of careful expert studies and international consensus. From 1985 to 1989, the COE’s Select Committee of Experts on Computer-Related Crime debated issues before drafting Recommendation 89(9). This Recommendation stressed the need for a quick and adequate response to the cybercrime problems emerging then and noted the need for an international consensus on criminalizing specific computer-related offenses.⁸⁸ In 1995, the COE adopted Recommendation No. R (95)13, which detailed principles addressing search and seizure, technical surveillance, obligations to cooperate with the investigating authorities, electronic evidence, and international cooperation.⁸⁹ In 1997, the new Committee of Experts on Crime in Cyberspace was created to examine, “in light of Recommendations No R (89)9 and No R (95)13,” the problems of “cyberspace offenses and other substantive criminal law issues where a common approach may be necessary for international cooperation.” It was also tasked with the drafting of “a binding legal instrument” to deal with these issues. The preparation leading up to the Convention entailed 27 drafts over four years.⁹⁰

As mentioned earlier, the Philippines was one of the countries that requested to be invited to accede to this very important treaty in 2007, and the Cybercrime Prevention Act was patterned after the convention.⁹¹

Article 1 of the Budapest Convention on Cybercrime defines “traffic data” as follows:

d. “traffic data” means any computer data relating to a communication by means of a computer system, generated by a computer system that formed a part in the chain of communication, indicating the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.

Section 3 of the Cybercrime Prevention Act has a starkly similar definition of “traffic data”:

(p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.

However, the definition in the Cybercrime Prevention Act improves on that of the Convention by clearly restricting traffic data to those that are non-content in nature. On top of that, Section 12 further restricts traffic data to exclude those that refer to the identity of persons. The provision states:

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities. (Emphasis supplied)

Undoubtedly, these restrictions were made because Congress wanted to ensure the protection of the privacy of users of electronic communication. Congress must have also had in mind the 1965 Anti-Wiretapping Act, as well as the Data Privacy Act which was passed only a month before the Cybercrime Prevention Act. However, as will be shown later, the restrictive definition is not coupled with an equally restrictive procedural safeguard. This deficiency is the Achilles’ heel of the provision.

One of the obligations under the Budapest Convention on Cybercrime is for state parties to enact laws and adopt measures concerning the real-time collection of traffic data, viz:

Article 20 - Real-time collection of traffic data

1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to:

1. collect or record through the application of technical means on the territory of that Party, and
2. compel a service provider, within its existing technical capability:
   1. to collect or record through the application of technical means on the territory of that Party; or
   2. to co-operate and assist the competent authorities in the collection or recording of, traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.

2. Where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to in paragraph 1.a, it may instead adopt legislative and other measures as may be necessary to ensure the real-time collection or recording of traffic data associated with specified communications transmitted in its territory, through the application of technical means on that territory.
3. Each Party shall adopt such legislative and other measures as may be necessary to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.
4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15. (Emphases supplied)

The Explanatory Report on the Budapest Convention on Cybercrime explains the ephemeral and volatile nature of traffic data, which is the reason why it has to be collected in real-time if it is to be useful in providing a crucial lead to investigations of criminality online as follows:⁹²

29. In case of an investigation of a criminal offence committed in relation to a computer system, traffic data is needed to trace the source of a communication as a starting point for collecting further evidence or as part of the evidence of the offence. Traffic data might last only ephemerally, which makes it necessary to order its expeditious preservation. Consequently, its rapid disclosure may be necessary to discern the communication’s route in order to collect further evidence before it is deleted or to identify a suspect. The ordinary procedure for the collection and disclosure of computer data might therefore be insufficient. Moreover, the collection of this data is regarded in principle to be less intrusive since as such it doesn’t reveal the content of the communication which is regarded to be more sensitive.

x x x x

133. One of the major challenges in combating crime in the networked environment is the difficulty in identifying the perpetrator and assessing the extent and impact of the criminal act. A further problem is caused by the volatility of electronic data, which may be altered, moved or deleted in seconds. For example, a user who is in control of the data may use the computer system to erase the data that is the subject of a criminal investigation, thereby destroying the evidence. Speed and, sometimes, secrecy are often vital for the success of an investigation.

134. The Convention adapts traditional procedural measures, such as search and seizure, to the new technological environment. Additionally, new measures have been created, such as expedited preservation of data, in order to ensure that traditional measures of collection, such as search and seizure, remain effective in the volatile technological environment. As data in the new technological environment is not always static, but may be flowing in the process of communication, other traditional collection procedures relevant to telecommunications, such as real-time collection of traffic data and interception of content data, have also been adapted in order to permit the collection of electronic data that is in the process of communication. Some of these measures are set out in Council of Europe Recommendation No. R (95) 13 on problems of criminal procedural law connected with information technology.

x x x x

214. For some States, the offences established in the Convention would normally not be considered serious enough to permit interception of content data or, in some cases, even the collection of traffic data. Nevertheless, such techniques are often crucial for the investigation of some of the offences established in the Convention, such as those involving illegal access to computer systems, and distribution of viruses and child pornography. The source of the intrusion or distribution, for example, cannot be determined in some cases without real-time collection of traffic data. In some cases, the nature of the communication cannot be discovered without real-time interception of content data. These offences, by their nature or the means of transmission, involve the use of computer technologies. The use of technological means should, therefore, be permitted to investigate these offences. xxx.

x x x x

216. Often, historical traffic data may no longer be available or it may not be relevant as the intruder has changed the route of communication. Therefore, the real-time collection of traffic data is an important investigative measure. Article 20 addresses the subject of real-time collection and recording of traffic data for the purpose of specific criminal investigations or proceedings.

x x x x

218. xxx. When an illegal distribution of child pornography, illegal access to a computer system or interference with the proper functioning of the computer system or the integrity of data, is committed, particularly from a distance such as through the Internet, it is necessary and crucial to trace the route of the communications back from the victim to the perpetrator. Therefore, the ability to collect traffic data in respect of computer communications is just as, if not more, important as it is in respect of purely traditional telecommunications. This investigative technique can correlate the time, date and source and destination of the suspect’s communications with the time of the intrusions into the systems of victims, identify other victims or show links with associates.

219. Under this article, the traffic data concerned must be associated with specified communications in the territory of the Party. The specified ‘communications’ are in the plural, as traffic data in respect of several communications may need to be collected in order to determine the human source or destination (for example, in a household where several different persons have the use of the same telecommunications facilities, it may be necessary to correlate several communications with the individuals’ opportunity to use the computer system). The communications in respect of which the traffic data may be collected or recorded, however, must be specified. Thus, the Convention does not require or authorise the general or indiscriminate surveillance and collection of large amounts of traffic data. It does not authorise the situation of ‘fishing expeditions’ where criminal activities are hopefully sought to be discovered, as opposed to specific instances of criminality being investigated. The judicial or other order authorising the collection must specify the communications to which the collection of traffic data relates.

x x x x

225. Like real-time interception of content data, real-time collection of traffic data is only effective if undertaken without the knowledge of the persons being investigated. Interception is surreptitious and must be carried out in such a manner that the communicating parties will not perceive the operation. Service providers and their employees knowing about the interception must, therefore, be under an obligation of secrecy in order for the procedure to be undertaken effectively. (Emphases supplied)

We can gather from the Explanatory Note that there are two seemingly conflicting ideas before us that require careful balancing - the fundamental rights of individuals, on the one hand, and the interests of justice (which may also involve the fundamental rights of another person) on the other. There is no doubt that privacy is vital to the existence of a democratic society and government such as ours. It is also critical to the operation of our economy. Citizens, governments, and businesses should be able to deliberate and make decisions in private, away from the inhibiting spotlight.⁹³ Certainly, this privacy should be maintained in the electronic context as social, governmental and economic transactions are made in this setting.⁹⁴ At the same time however, law enforcers must be equipped with up-to-date tools necessary to protect society and the economy from criminals who have also taken advantage of electronic technology. These enforcers must be supplied with investigative instruments to solve crimes and punish the criminals.⁹⁵

What is beyond debate, however, is that real-time collection of traffic data may be absolutely necessary in criminal investigations such that, without it, authorities may not be able to probe certain crimes at all. In fact, it has been found that crucial electronic evidence may never be stored at all, as it may exist only in transient communications.⁹⁶ The UN Office on Drugs and Crime requires real-time collection of data because of the urgency, sensitivity, or complexity of a law enforcement investigation.⁹⁷

Hence, it is imprudent to precipitately make (1) an absolute declaration that all kinds of traffic data from all types of sources are protected by the constitutional right to privacy; and (2) a blanket pronouncement that the real-time collection thereof may only be conducted upon a prior lawful order of the court to constitute a valid search and seizure. Rather, the Court should impose a strict interpretation of Section 12 in the light of existing constitutional, jurisprudential and statutory guarantees and safeguards.

The Constitutional guarantee against unreasonable search and seizure is inviolable.

The inviolable right against unreasonable search and seizure is enshrined in Article III of the Constitution, which states:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

It is clear from the above that the constitutional guarantee does not prohibit all searches and seizures, but only unreasonable ones.⁹⁸ As a general rule, a search and seizure is reasonable when probable cause has been established. Probable cause is the most restrictive of all thresholds. It has been broadly defined as those facts and circumstances that would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched.⁹⁹ It has been characterized as referring to “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”¹⁰⁰ Furthermore, probable cause is to be determined by a judge prior to allowing a search and seizure. The judge’s determination shall be contained in a warrant, which shall particularly describe the place to be searched and the things to be seized. Thus, when no warrant is issued, it is assumed that there is no probable cause to conduct the search, making that act unreasonable.

For the constitutional guarantee to apply, however, there must first be a search in the constitutional sense.¹⁰¹ It is only when there is a search that a determination of probable cause is required. In Valmonte v. De Villa, the Court said that the constitutional rule cannot be applied when mere routine checks consisting of “a brief question or two” are involved.¹⁰² The Court said that if neither the vehicle nor its occupants are subjected to a search - the inspection of the vehicle being limited to a visual search - there is no violation of an individual’s right against unreasonable searches and seizures. Hence, for as long as there is no physical intrusion upon a constitutionally protected area, there is no search.¹⁰³

In recent years, the Court has had occasion to rule¹⁰⁴ that a search occurs when the government violates a person’s “reasonable expectation of privacy,” a doctrine first enunciated in Katz v. United States.¹⁰⁵Katz signalled a paradigm shift, as the inquiry into the application of the constitutional guarantee was now expanded beyond “the presence or absence of a physical intrusion into any given enclosure” and deemed to “[protect] people, not places.”¹⁰⁶ Under this expanded paradigm, the “reasonable expectation of privacy” can be established if the person claiming it can show that (1) by his conduct, he exhibited an expectation of privacy and (2) his expectation is one that society recognizes as reasonable. In People v. Johnson,¹⁰⁷ which cited Katz, the seizure and admissibility of the dangerous drugs found during a routine airport inspection were upheld by the Court, which explained that “[p]ersons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable.”¹⁰⁸

Traffic data per se do not enjoy privacy protection; hence, no determination of probable cause is needed for the real-time collection thereof.

The very public structure of the Internet and the nature of traffic data per se undermine any reasonable expectation of privacy in the latter. The Internet is custom-designed to frustrate claims of reasonable expectation of privacy in traffic data per se, since the latter are necessarily disclosed to the public in the process of communication.

Individuals have no legitimate expectation of privacy in the data they disclose to the public and should take the risks for that disclosure. This is the holding of the U.S. Supreme Court in Smith v. Maryland.¹⁰⁹ The 1979 case, which has stood the test of time and has been consistently applied by American courts in various communications cases - including recent ones in the electronic setting - arose from a police investigation of robbery. The woman who was robbed gave the police a description of the robber and of a car she had observed near the scene of the crime. After the robbery, she began receiving threatening phone calls from a man identifying himself as the robber. The car was later found to be registered in the name of the petitioner, Smith. The next day, the telephone company, upon police request, installed a pen register at its central offices to record the numbers dialled from the telephone at the home of Smith. The register showed that he had indeed been calling the victim’s house. However, since the installation of the pen register was done without a warrant, he moved to suppress the evidence culled from the device. In affirming the warrantless collection and recording of phone numbers dialled by Smith, the U.S. Supreme Court said:

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. x x x.

x x x x

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E.g., United States v. Miller, 425 U. S., at 442-444; x x x.¹¹⁰ (Emphases supplied)

I am of the opinion that this Court may find the ruling in United States v. Forrester,¹¹¹ persuasive. In that case, the U.S. 9th Circuit Court of Appeals applied the doctrine in Smith to electronic communications, and ruled that Internet users have no expectation of privacy in the to/from addresses of their messages or in the IP addresses of the websites they visit. According to the decision, users should know that these bits of information are provided to and used by Internet service providers for the specific purpose of directing the routing of information. It then emphasized that this examination of traffic data is “conceptually indistinguishable from government surveillance of physical mail,” and that the warrantless search of envelope or routing information has been deemed valid as early as the 19th century. The court therein held:

We conclude that the [electronic] surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users’ imputed knowledge that their calls are completed through telephone company switching equipment. x x x. Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the “switching equipment that processed those numbers,” e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party’s servers. x x x.

Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/from addresses of a person’s e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses — but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. x x x. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.

The government’s surveillance of e-mail addresses also may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail. In a line of cases dating back to the nineteenth century, the Supreme Court has held that the government cannot engage in a warrantless search of the contents of sealed mail, but can observe whatever information people put on the outside of mail, because that information is voluntarily transmitted to third parties. x x x. E-mail, like physical mail, has an outside address “visible” to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient. The privacy interests in these two forms of communication are identical. The contents may deserve Fourth Amendment protection, but the address and size of the package do not.¹¹²(Emphases and underscoring supplied)

Based on the cogent logic explained above, I share the view that Internet users have no reasonable expectation of privacy in traffic data per se or in those pieces of information that users necessarily provide to the ISP, a third party, in order for their communication to be transmitted. This position is further bolstered by the fact that such communication passes through as many ISPs as needed in order to reach its intended destination. Thus, the collection and recording of these data do not constitute a search in the constitutional sense. As such, the collection thereof may be done without the necessity of a warrant.

Indeed, Professor Orin Kerr,¹¹³ a prominent authority on electronic privacy, observes that in the U.S., statutory rather than constitutional protections provide the essential rules governing Internet surveillance law. He explains that the very nature of the Internet requires the disclosure of non-content information, not only to the ISP contracted by the user, but also to other computers in order for the communication to reach the intended recipient. Professor Kerr explains thus:

Recall that the Fourth Amendment effectively carves out private spaces where law enforcement can’t ordinarily go without a warrant and separates them from public spaces where it can. One important corollary of this structure is that when a person sends out property or information from her private space into a public space, the exposure to the public space generally eliminates the Fourth Amendment protection. If you put your trash bags out on the public street, or leave your private documents in a public park, the police can inspect them without any Fourth Amendment restrictions.

The Supreme Court’s cases interpreting this so-called “disclosure principle” have indicated that the principle is surprisingly broad. For example, the exposure need not be to the public. Merely sharing the information or property with another person allows the government to go to that person to obtain it without Fourth Amendment protection. x x x.

Why does this matter to Internet surveillance? It matters because the basic design of the Internet harnesses the disclosure, sharing, and exposure of information to many machines connected to the network. The Internet seems almost custom-designed to frustrate claims of broad Fourth Amendment protection: the Fourth Amendment does not protect information that has been disclosed to third-parties, and the Internet works by disclosing information to third-parties. Consider what happens when an Internet user sends an e-mail. By pressing “send” on the user’s e-mail program, the user sends the message to her ISP, disclosing it to the ISP, with instructions to deliver it to the destination. The ISP computer looks at the e-mail, copies it, and then sends a copy across the Internet where it is seen by many other computers before it reaches the recipient’s ISP. The copy sits on the ISP’s server until the recipient requests the e-mail; at that point, the ISP runs off a copy and sends it to the recipient. While the e-mail may seem like a postal mail, it is sent more like a post card, exposed during the course of delivery.¹¹⁴ (Emphases and underscoring supplied.)

Clearly, considering that the Internet highway is so public, and that non-content traffic data, unlike content data, are necessarily exposed as they pass through the Internet before reaching the recipient, there cannot be any reasonable expectation of privacy in non-content traffic data per se.

Traffic data to be collected are explicitly limited to non-content and non-identifying public information which, unlike content data, are not constitutionally protected.

The U.S. Supreme Court and Court of Appeals in the above cases emphasized the distinction between content and non-content data, with only content data enjoying privacy protection. In Smith the Court approved of the use of pen registers, pointing out that “a pen register differs significantly from [a] listening device … for pen registers do not acquire the contents of communications.”¹¹⁵ Hence, the information derived from the pen register, being non-content, is not covered by the constitutional protection. In Forrester, it was held that while the content of both e-mail and traditional mail are constitutionally protected, the non-content or envelope information is not. On the other hand, in the 2007 case Warshak v. United States,¹¹⁶ the Sixth Circuit Court of Appeals held that the contents of emails are protected. It employed the content/non-content distinction in saying that the “combined precedents of Katz and Smith” required a “heightened protection for the content of the communications.”¹¹⁷ Consequently, it found a strong “content-based privacy interest” in e-mails.¹¹⁸

Traffic data are of course explicitly restricted to non-content and non-identifying data as defined in Section 12 of the Cybercrime Prevention Act itself. As such, it is plain that traffic data per se are not constitutionally protected.

The distinction between content and non-content data, such as traffic data, is important because it keeps the balance between protecting privacy and maintaining public order through effective law enforcement. That is why our Congress made sure to specify that the traffic data to be collected are limited to non-content data. For good measure, it additionally mandated that traffic data be non-identifying.

Kerr explains how the distinction between content and non-content information in electronic communication mirrors perfectly and logically the established inside and outside distinction in physical space, as far as delineating the investigative limitations of law enforcers is concerned. Inside space is constitutionally protected, and intrusion upon it requires a court warrant; in contrast, surveillance of outside space does not require a warrant because it is not a constitutionally cognizable search. He explains thus:

Whereas the inside/outside distinction is basic to physical world investigations, the content/non-content distinction is basic to investigations occurring over communications networks. Communications networks are tools that allow their users to send and receive communications from other users and services that are also connected to the network. This role requires a distinction between addressing information and contents. The addressing (or “envelope”) information is the data that the network uses to deliver the communications to or from the user; the content information is the payload that the user sends or receives.

x x x x

We can see the same distinctions at work with the telephone network. The telephone network permits users to send and receive live phone calls. The addressing information is the number dialed (“to”), the originating number (“from”), the time of the call, and its duration. Unlike the case of letters, this calling information is not visible in the same way that the envelope of a letter is. At the same time, it is similar to the information derived from the envelope of a letter. In contrast, the contents are the call itself, the sound sent from the caller’s microphone to the receiver’s speaker and from the receiver’s microphone back to the caller’s speaker.

Drawing the content/non-content distinction is somewhat more complicated because the Internet is multifunctional. x x x. Still, the content/non-content distinction holds in the Internet context as well. The easiest cases are human-to-human communications like e-mail and instant messages. The addressing information is the “to” and “from” e-mail address, the instant message to and from account names, and the other administrative information the computers generate in the course of delivery. As in the case of letters and phone calls, the addressing information is the information that the network uses to deliver the message. In contrast, the actual message itself is the content of the communication. x x x x

The content/non-content distinction provides a natural replacement for the inside/outside distinction. To apply the Fourth Amendment to the Internet in a technologically neutral way, access to the contents of communications should be treated like access to evidence located inside. Accessing the contents of communications should ordinarily be a search. In contrast, access to non-content information should be treated like access to evidence found outside. Collection of this information should presumptively not be a search.

This translation is accurate because the distinction between content and non-content information serves the same function online that the inside/outside distinction serves in the physical world. Non-content information is analogous to outside information; it concerns where a person is and where a person is going. Consider what the police can learn by watching a suspect in public. Investigating officers can watch the suspect leave home and go to different places. They can watch him go to lunch, go to work, and go to the park; they can watch him drive home; and they can watch him park the car and go inside. In effect, this is to/from information about the person’s own whereabouts.

On the other hand, content information is analogous to inside information. The contents of communications reveal the substance of our thinking when we assume no one else is around. It is the space for reflection and self-expression when we take steps to limit the audience to a specific person or even just to ourselves. The contents of Internet communications are designed to be hidden from those other than the recipients, much like property stored inside a home is hidden from those who do not live with us. x x x.

The connection between content/non-content on the Internet and inside/outside in the physical world is not a coincidence. Addressing information is itself a network substitute for outside information, and contents are a network substitute for inside information. Recall the basic function of communications networks: they are systems that send and receive communications remotely so that its users do not have to deliver or pick up the communications themselves. The non-content information is the information the network uses to deliver communications, consisting of where the communication originated, where it must be delivered, and in some cases the path of delivery. This information is generated in lieu of what would occur in public; it is information about the path and timing of delivery. In contrast, the contents are the private communications themselves that would have been inside in a physical network.

x x x x

In light of this, a technologically neutral way to translate the Fourth Amendment from the physical world to the Internet would be to treat government collection of the contents of communications as analogous to the government collection of information inside and the collection of non-content information as analogous to the collection of information outside. x x x.

This approach would mirror the line that the Fourth Amendment imposes in the physical world. In the physical world, the inside/outside distinction strikes a sensible balance. It generally lets the government observe where people go, when they go, and to whom they are communicating while protecting the actual substance of their speech from government observation without a warrant unless the speech is made in a setting open to the public. The content/non-content distinction preserves that function. It generally lets the government observe where people go in a virtual sense, and to observe when and with whom communications occur. The essentially transactional information that would occur in public in a physical world has been replaced by non-content information in a network environment, and the content/non-content line preserves that treatment. At the same time, the distinction permits individuals to communicate with others in ways that keep the government at bay. The Fourth Amendment ends up respecting private areas where people can share their most private thoughts without government interference both in physical space and cyberspace alike.¹¹⁹ (Emphases supplied.)

Indeed, there is a clear distinction between content and non-content data. The distinction presents a reasonable conciliation between privacy guarantees and law enforcement needs, since the distinction proceeds from logical differences between the two in their nature and privacy expectations. According to a comprehensive UN study on six international or regional cybercrime instruments,¹²⁰ which include provisions on real-time collection of computer data, these instruments “make a distinction between real-time collection of traffic data and of content data” to account for the “differences in the level of intrusiveness into the private life of persons subject to each of the measures.”¹²¹

From the above jurisprudence and scholarly analysis, there is enough basis to conclude that, given the very public nature of the Internet and the nature of traffic data as non-content and non-identifying information, individuals cannot have legitimate expectations of privacy in traffic data per se.

Section 12, however, suffers from lack of procedural safeguards to ensure that the traffic data to be obtained are limited to non-content and non-identifying data, and that they are obtained only for the limited purpose of investigating specific instances of criminality.

Thus far, it has been shown that real-time collection of traffic data may be indispensable in providing a crucial first lead in the investigation of criminality. Also, it has been explained that there is clearly no legitimate expectation of privacy in traffic data per se because of the nature of the Internet - it requires disclosure of traffic data which, unlike content data, will then travel exposed as it passes through a very public communications highway. It has also been shown that the definition of traffic data under the law is sufficiently circumscribed to cover only non-content and non-identifying data and to explicitly exclude content data. This distinction is important in protecting privacy guarantees while supporting law enforcement needs.

However, Section 12 suffers from a serious deficiency. The narrow definition of traffic data per se as non-content and non-identifying data is not supported by equally narrow procedural criteria for the exercise of the authority to obtain them. The government asserts that Section 12 provides for some protection against abuse. While this may be true, the safeguards provided are not sufficient to protect constitutional guarantees.

Firstly, the provision does not indicate what the purpose of the collection would be, since it only provides for “due cause” as a trigger for undertaking the activity. While the government has explained the limited purpose of the collection of traffic data, which purportedly can only go as far as providing an initial lead to an ongoing criminal investigation primarily in the form of an IP address, this limited purpose is not explicit in the assailed provision. Moreover, there is no assurance that the collected traffic data would not be used for preventive purposes as well. Notably, the Solicitor-General defines “due cause” as “good faith law enforcement reason”¹²² or “when there’s a complaint from a citizen that cybercrime has been committed.” According to the Solicitor General this situation is “enough to trigger” a collection of traffic data.¹²³ However, during the oral arguments, the Solicitor General prevaricated on whether Section 12 could also be used for preventive monitoring. He said that there might be that possibility, although the purpose would “largely” be for the investigation of an existing criminal act.¹²⁴ This vagueness is disconcerting, since a preventive monitoring would necessarily entail casting a wider net than an investigation of a specific instance of criminality would. Preventive monitoring would correspondingly need more restrictive procedural safeguards. This failure to provide an unequivocally specified purpose is fatal because it would give the government the roving authority to obtain traffic data for any purpose.¹²⁵

Secondly, Section 12 does not indicate who will determine “due cause.” This failure to assign the determination of due cause to a specific and independent entity opens the floodgates to possible abuse of the authority to collect traffic data in real-time, since the measure will be undertaken virtually unchecked. Also, while Section 12 contemplates the collection only of data “associated with specified communications,” it does not indicate who will make the specification and how specific it will be.

Finally, the collection of traffic data under Section 12 is not time-bound. This lack of limitation on the period of collection undoubtedly raises concerns about the possibility of unlimited collection of traffic data in bulk for purposes beyond the simple investigation of specific instances of criminality.

Existing approaches in other jurisdictions for collection of traffic data

To foreclose an Orwellian collection of traffic data in bulk that may lead to the invasion of privacy, the relevant law must be canalized to accommodate only an acceptable degree of discretion to law enforcers. It must provide for clear parameters and robust safeguards for the exercise of the authority. Notably, the Solicitor General himself has observed that stronger safeguards against abuse by law enforcers may have to be put in place.¹²⁶ There are also indications that the legislature is willing to modify the law to provide for stronger safeguards, as shown in the bills filed in both chambers of Congress.¹²⁷

In fashioning procedural safeguards against invasion of privacy, the rule of thumb should be: the more intrusive the activity, the stricter the procedural safeguards. Other countries have put in place some restrictions on the real-time collection of traffic data in their jurisdictions. In the United States, the following are the requirements for the exercise of this authority:

(1) relevance of the collected information to an ongoing criminal investigation;
(2) court order issued by a judicial officer based upon the certification of a government attorney; and
(3) limitation of the period of collection to sixty days (with the possibility of extension).

In the United Kingdom, the following requirements must be complied with:

(1) necessity of the information to be collected for the investigation of crime, protection of public safety, or a similar goal;
(2) approval of a high-level government official;
(3) proportionality of the collection to what is sought to be achieved; and
(4) limitation of the period of collection to thirty days.¹²⁸

The above requirements laid down by two different jurisdictions offer different but similar formulations. As to what the triggering threshold or purpose would be, it could be the necessity threshold (for the investigation of crime, protection of public safety, or a similar goal) used in the United Kingdom or the relevance threshold (to an ongoing criminal investigation) in the United States. Note that these thresholds do not amount to probable cause.

As to who determines compliance with the legal threshold that triggers the exercise of the authority to collect traffic data in real time, the laws of the United States suggest that special judicial intervention is required. This intervention would be a very strong measure against the violation of privacy even if the judicial order does not require determination of probable cause. At the same time, however, the general concern of Justice Brion that “time is of the utmost essence in cyber crime law enforcement” needs to be considered. Hence, procedural rules of court will have to be adjusted so as not to unduly slow down law enforcement response to criminality considering how ephemeral some information could be. We must ensure that these rules are not out of step with the needs of law enforcement, given current technology. It may be noted that Justice Carpio has broached the idea of creating 24-hour courts to address the need for speedy law enforcement response.¹²⁹

In the United Kingdom, the mechanism suggests that the authorizing entity need not be a judge, as it could be a high-ranking government official. Perhaps this non-judicial authorization proceeds from the consideration that since the triggering threshold is not probable cause, but only necessity to an ongoing criminal investigation, there is no need for a judicial determination of compliance with the aforesaid threshold.

The above requirements also provide limits on the period of collection of traffic data. In the United States, the limit is 60 days with a possibility of extension. This period and the possibility of extension are similar to those provided under our Anti-Wiretapping Law. Note, however, that the Anti-Wiretapping Law concerns the content of communications whereas the traffic data to be collected under Section 12 of the Cybercrime Prevention Act is limited to non-content and non-identifying data. Hence, the restriction on the period of collection could perhaps be eased by extending it to a longer period in the case of the latter type of data. In the United Kingdom, the limit is 30 days.

From the above observation of the deficiencies of Section 12, as well as the samples from other jurisdictions, the following general guidelines could be considered to strengthen the safeguards against possible abuse.

First, the relevance or necessity of the collection of traffic data to an ongoing criminal investigation must be established. This requirement to specify the purpose of the collection (to aid ongoing criminal investigation) will have the effect of limiting the usage of the collected traffic data to exclude dossier building, profiling and other purposes not explicitly sanctioned by the law. It will clarify that the intention for the collection of traffic data is not to create a historical data base for a comprehensive analysis of the personal life of an individual whose traffic data is collected, but only for investigation of specific instances of criminality. More important, it is not enough that there be an ongoing criminal investigation; the real-time collection must be shown to be necessary or at least relevant to the investigation. Finally, it should be explicitly stated that the examination of traffic data will not be for the purpose of preventive monitoring which, as observed earlier, would necessarily entail a greater scope than that involved in a targeted collection of traffic data for the investigation of a specific criminal act.

Second, there must be an independent authority - judicial or otherwise - who shall review compliance with the relevance and necessity threshold. The designation of this authority will provide additional assurance that the activity will be employed only in specific instances of criminal investigation and will be necessary or relevant. The designation of an authorizing entity will also inhibit the unjustified use of real-time collection of traffic data. The position of this person should be sufficiently high to ensure greater accountability. For instance, it was suggested during the oral arguments that the authorizing person be a lawyer of the national government in order to additionally strengthen that person’s accountability, proceeding as it would from his being an officer of the court.¹³⁰

Third, there must be a limitation on the period of collection. The restriction on the time period will further prevent the indiscriminate and bulk collection of traffic data beyond what is necessary for a regular criminal investigation.

As to the type of technology to be used for collection, it seems that this cannot be specified beforehand. Certainly, only a general restriction can be made - that the technology should be capable of collecting only non-content and non-identifying traffic data. It should not be able to directly point to the location of the users of the Internet, the websites visited, the search words used, or any other data that reveal the thoughts of the user.

In the end, whatever mechanism is to be set in place must satisfy the Constitution’s requirements for the safeguard of the people’s right to privacy and against undue incursions on their liberties.

Final Words

Laws and jurisprudence should be able to keep current with the exponential growth in information technology.¹³¹ The challenge is acute, because the rapid progress of technology has opened up new avenues of criminality. Understandably, governments try to keep pace and pursue criminal elements that use new technological avenues. It is precisely during these times of zeal that the Court must be ever ready to perform its duty to uphold fundamental rights when a proper case is brought before it.

The Court has carefully trod through the issues that have been heard in these Petitions, especially since they involve the exercise of our power of judicial review over acts of the legislature. I believe that we have tried to exercise utmost judicial restraint and approached the case as narrowly as we could so as to avoid setting sweeping and overreaching precedents.¹³² We have thus prudently resolved the present Petitions with the view in mind that a future re-examination of the law is still possible,¹³³ especially when the constitutional challenges set forth become truly ripe for adjudication. This is also so that we do not unduly tie the hands of the government when it regulates socially harmful conduct in the light of sudden changes in technology, especially since the regulation is meant to protect the very same fundamental rights that petitioners are asking this Court to uphold.

However, we have also not hesitated to strike down as unconstitutional those regulatory provisions that clearly transgress the Constitution and upset the balance between the State’s inherent police power and the citizen’s fundamental rights. After all, the lofty purpose of police power is to be at the loyal service of personal freedom.

WHEREFORE, I join the ponencia in resolving to leave the determination of the correct application of Section 7 to actual cases, except as it is applied to libel. Charging an offender both under Section 4(c)(4) of the Cybercrime Prevention Act and under Article 353 of the Revised Penal Code violates the guarantee against double jeopardy and is VOID and UNCONSTITUTIONAL for that reason.

Moreover, I join in declaring the following as UNCONSTITUTIONAL:

1. Section 4(c)(4), insofar as it creates criminal liability on the part of persons who receive a libelous post and merely react to it ;
2. Section 12, insofar as it fails to provide proper safeguards for the exercise of the authority to collect traffic data in real time;
3. Section 19, also insofar as it fails to provide proper standards for the exercise of the authority to restrict or block access to computer data.

However, I vote to declare Section 6 UNCONSTITUTIONAL, insofar as it applies to Section 4(c)(4), for unduly curtailing freedom of speech.

As regards the remaining assailed provisions, I vote to DISMISS the Petitions for failure to establish that a pre-enforcement judicial review is warranted at this time.

Endnotes:

---

¹ Isagani A. Cruz, Constitutional Law, 1 (2000).

²See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA 579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, 19 March 2013; Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, 15 February 2011, 643 SCRA 198; Francisco v. House of Representatives, 460 Phil. 830 (2003); Demetria v. Alba, 232 Phil. 222 (1987).

³ Constitution, Art. VIII, Sec. 2(a).

⁴ 5 U.S. 137 (1803).

⁵Francisco v. House of Representatives, supra note 2 (citing U.S. v. Ang Tang Ho, 43 Phil 1 [1922]; McDaniel v. Apacible, 42 Phil 749 [1922] Concepcion v. Paredes, 42 Phil 599 [1921]; In re Prautch, 1 Phil. 132 [1902]; and Casanovas v. Hord, 8 Phil 125 [1907]).

⁶Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).

⁷Francisco v. House of Representatives, supra note 2; Gutierrez v. House of Representatives Committee on Justice, supra note 2; Constitution, Art. VIII, Sec. 1.

⁸Oposa v. Factoran, G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809.

⁹Francisco v. House of Representatives, supra note 2; Tañada v. Angara, 338 Phil. 546 (1997); Oposa v. Factoran, supra (citing Llamas v. Orbos, 279 Phil. 920 [1991]; Bengzon v. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]); Gonzales v. Macaraig, 191 SCRA 452 [1990]; Coseteng v. Mitra, 187 SCRA 377 [1990]; Daza v. Singson, 259 Phil. 980 [1989]; and I Record, Constitutional Commission 434-436 [1986]).

¹⁰See: Francisco v. House of Representatives, supra note 2; United States v. Raines, 362 U.S. 17 (1960); and Angara v. Electoral Commission, supra note 6.

¹¹ Morfe v. Mutuc, 130 Phil. 415 (1968); Angara v. Electoral Commission, supra.

¹²Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (citing Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 [2006]; and Regan v. Time, Inc., 468 U. S. 641, 652 [1984].

¹³ Supra note 2.

¹⁴ Supra note 2, at 922-923.

¹⁵ Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

¹⁶Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, 5 October 2010, 632 SCRA 146; David v. Macapagal-Arroyo, 522 Phil. 705, 753 (2006); Francisco v. House of Representatives, supra note 2, at 923-924; Angara v. Electoral Commission, supra note 6.

¹⁷Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra.

¹⁸Information Technology Foundation of the Philippines v. Commission on Elections, 499 Phil. 281 (2005) (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227 [1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra; David v. Macapagal-Arroyo, supra note 16; Francisco v. House of Representatives, supra note 2; Angara v. Electoral Commission, supra note 6.

¹⁹ Lozano v. Nograles, G.R. Nos. 187883 & 187910, 16 June 2009, 589 SCRA 356.

²⁰Information Technology Foundation of the Philippines v. Commission on Elections, supra note 18; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra; Lozano v. Nograles, supra.

²¹Angara v. Electoral Commission, supra note 6, at 158-159.

²² Vicente V. Mendoza, Judicial Review of Constitutional Questions: Cases and Materials 91 (2^nd Ed. 2013) (Mendoza) (citing Paul A. Freund, “The Supreme Court,” in Talks on American Law 81 [H. J. Berman Rev. Ed. 1972]).

²³ Paul A. Freund, “The Supreme Court,” in Talks on American Law 81 (H. J. Berman Rev. Ed. 1972) (quoted in Mendoza, supra)

²⁴See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.

²⁵ Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.

²⁶ Nevertheless, we ultimately found that the petitioners therein failed to show their entitlement to a pre-enforcement judicial review of the Human Security Act of 2007. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16 (quoting Holder v. Humanitarian Law Project, 561 U.S. [unpaginated] [2010]); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); See also: Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979); Doe v. Bolton, 410 U.S. 179, 188-189 (1973) (citing Epperson v. Arkansas, 393 U.S. 97 [1968]);

²⁷Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.

²⁸See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16; De Castro v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA 579 (citing Buckley v. Valeo, 424 U.S. 1, 113-118 [1976]; Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 [1974]); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979) (citing Regional Rail Reorganization Act Cases, 419 U.S. 102 [1974]; Steffel v. Thompson, 415 U.S. 452 [1974]; O’Shea v. Littleton, 414 U.S. 488 [1974]; Doe v. Bolton, 410 U.S. 179 [1973]; Younger v. Harris, 401 U.S. 37 [1971]; Golden v. Zwickler, 394 U.S. 103 [1969]; Epperson v. Arkansas, 393 U.S. 97 [1968]; Evers v. Dwyer, 358 U.S. 202 [1958]; Pierce v. Society of Sisters, 268 U.S. 510 [1925]; Pennsylvania v. West Virginia, 262 U.S. 553 [1923]).

²⁹ G.R. No. 203325, Jose Jesus M. Disini, Jr. v. The Secretary of Justice.

³⁰See Petition of Disini (G.R. No. 203335), pp. 22-23, 26-27; Petition of Reyes (G.R. No. 203407), p. 25; Petition of Castillo, (G.R. No. 203454), pp. 10-11; Petition of Cruz (G.R. No. 203469), pp. 39-40; Petition of Philippine Internet Freedom Alliance (G.R. No. 203518), p. 9.

³¹See Petition of Adonis (G.R. No. 203378), p. 29; Petition of Sta. Maria (G.R. No. 203440), p. 22; Petition of Cruz (G.R. No. 203469), pp. 60-61; Petition of Philippine Bar Association (GRN 203501), p. 19; Petition of Colmenares (G.R. No. 203509), p. 15; Petition of National Press Club of the Philippines (G.R. No. 203515), pp. 16-17.

³²See Petition of Adonis (G.R. No. 203378), p. 33; Petition of National Union of Journalists of the Philippines (G.R. No. 203453), p. 11; Petition of National Press Club of the Philippines (G.R. No. 203515), p. 9; Petition of Philippine Internet Freedom Alliance (G.R. No. 203518), pp. 47-48; Petition of Philippine Bar Association (GRN 203501), p. 19.

³³See Petition of Disini (G.R. No. 203335), pp. 10-12.

³⁴ Petition of Disini (G.R. No. 203335), pp. 10-12.

³⁵Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16 (citing David v. Macapagal-Arroyo, supra note 16; Romualdez v. Commission on Elections, 576 Phil. 357 (2008).

³⁶ Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.

³⁷ Id.

³⁸ See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, supra note 16.

³⁹Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto, [Sep. Op. of J. Mendoza], 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2; Ashwander v. Tennessee Valley Authority, 297 U.S. 288 [1936]).

⁴⁰ Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16; David v. Macapagal-Arroyo, supra note 16.

⁴¹ G.R. No. 95770, 1 March 1993, 219 SCRA 256.

⁴²Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16; David v. Macapagal-Arroyo, supra note 16; Estrada v. Sandiganbayan, 421 Phil. 290 (2001).

⁴³ Id.

⁴⁴Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (citing Sabri v. United States, 541 U. S. 600, 609 [2004]).

⁴⁵ Petition of Disini, pp. 9-10. The computation of the imposable penalty in the Petition seems to be erroneous. Insofar as the crime of libel is concerned, I have discussed below that the imposable penalty in libel qualified by the use of ICT should be prisión correccional in its maximum period to prisión mayor in its minimum period.

⁴⁶Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 16.

⁴⁷The Philippine Railway Co. v. Geronimo Paredes, 64 Phil. 129 (1936).

⁴⁸ Ramon C. Aquino, The Revised Penal Code - Vol. 1, 3 (1961) (Aquino).

⁴⁹ Id.

⁵⁰ See Aquino, at 8-11.

⁵¹ Id. at 277; Luis B. Reyes, The Revised Penal Code - Criminal Law, Book One, 328 (2008) (Reyes).

⁵² People v. Lab-eo, 424 Phil. 482 (2002); Reyes, supra.

⁵³See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra, at 705-706 (2008); Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.

⁵⁴See: Jalosjos v. Commission on Elections, G.R. Nos. 193237 and 193536, 9 October 2012, 683 SCRA 1 (citing Lacuna v. Abes, 133 Phil. 770, 773-774 [1968]); Aratea v. Commission on Elections, G.R. No. 195229, 9 October 2012, 683 SCRA 105.

⁵⁵See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra note 51, at 705-706; cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.

⁵⁶ Probation Law; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Baclayon v. Mutia, 241 Phil. 126 (1984). See: Del Rosario v. Rosero, 211 Phil. 406 (1983).

⁵⁷See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra note 51, at 705-706; Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.

⁵⁸ Probation Law, Sec. 4.

⁵⁹Moreno v. Commission on Elections, G.R. No. 168550, 10 August 2006, 498 SCRA 547.

⁶⁰Baclayon v. Mutia, 241 Phil. 126 (1984).

⁶¹See generally: Monsanto v. Factoran, G.R. No. 78239, 9 February 1989, 170 SCRA.

⁶² Aquino, supra note 48, at 695-696 (citing People v. Montenegro, 68 Phil 659 [1939]; People v. Moran, 44 Phil. 387, 433 [1923]; Santos v. Superintendent, 55 Phil. 345 [1930]).

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id.

⁶⁹ Reyes, supra note 51, at 845.

⁷⁰ See also TSN dated 15 January 2013, pp. 80-81.

⁷¹ Senate Transcript of the Bicameral Conference Committee on the Disagreeing Provisions of SBN 2796 and HBN 5808 (Cybercrime Prevention Act of 2012) (31 May 2012) 15th Congress, 2nd Regular Sess. at 43-47, 52-56 [hereinafter Bicameral Conference Committee Transcript].

⁷² Aquino, supra note 48, at 277 (citing People v. Bayot, 64 Phil. 269 [1937]). See also Vicente J. Francisco, The Revised Penal Code: Annotated and Commented, Book I, 414 (2nd Ed. 1954).

⁷³ Leonor D. Boado, Notes And Cases On The Revised Penal Code, 147 (2008)

⁷⁴ Id. at 146.

⁷⁵ Aquino, supra note 48, at 277.

⁷⁶Quinto v. COMELEC, G.R. No. 189698, 22 February 2010 (citing Broadrick v. Oklahoma 413 U.S. 601, 93 S.Ct. 2908 [1973]).

⁷⁷ 321 Phil. 279 (1995).

⁷⁸ Id., at 346.

⁷⁹ Undersecretary of the Department of Justice Ernesto L. Pineda sent a letter to the Secretary General of the Council of Europe dated 31 August 2007, expressing the wish of the Philippine government to be invited to accede to the Convention on Cybercrime. The Council of Europe granted the request in 2008. See Decision of the Council of Europe on the Request by the Philippines to be invited to accede to the Convention on Cybercrime, 1021st Meeting of the Ministers’ Deputies, dated 12 March 2008. Available at , accessed on 12 September 2013.

⁸⁰ Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281; Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.

⁸¹ Jonathan Clough, Principles of Cybercrime, 22 (2010);

⁸² Id.

⁸³, accessed on 20 October 2013.

⁸⁴ Twenty-eight of COE’s members also belong to the European Union (EU). All its member states have signed up to the European Convention on Human Rights, a treaty designed to protect human rights, democracy and the rule of law. accessed on 20 October 2013.

⁸⁵ Canada, Japan, South Africa, and the United States.

⁸⁶ accessed on 20 October 2013.

⁸⁷ Supra note 28.

⁸⁸ Sumit ghosh et al., Editors, Cybercrimes: A Multidisciplinary Analysis, 330 (2010).

⁸⁹ Id. at 330-331.

⁹⁰ Id. at 331.

⁹¹ Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281; Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.

⁹²Explanatory Report to the Convention on Cybercrime, [2001] COETSER 8 (23 November 2001), available at, accessed on 12 September 2013.

⁹³ Richard W. Downing. Columbia Journal of Transnational Law, Vol. 43, p. 743 (2005).

⁹⁴ Id.

⁹⁵ Id.

⁹⁶ United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime (Draft), 130 (2013).

⁹⁷ Id.

⁹⁸ Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 162 (2003).

⁹⁹Tan v. Sy Tiong Gue, G.R. No. 174570, 17 February 2010, 613 SCRA 98, 106;

¹⁰⁰ Supra note 1 at 163, citing Brinegar v. United States, 338 U.S. 160, 175 (1949)

¹⁰¹ Supra note 44.

¹⁰² Id.

¹⁰³See: United States v. Jones 132 S. Ct. 945, 950 n.3 (2012).

¹⁰⁴Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People v. Johnson, 401 Phil 734 (2000).

¹⁰⁵ 389 U.S. 347 (1967).

¹⁰⁶ Id.

¹⁰⁷ Supra note 104.

¹⁰⁸ Id.

¹⁰⁹ 442 U.S. 735 (1979).

¹¹⁰ Supra note 55.

¹¹¹ 512 F.3d 500 (2007).

¹¹² 512 F.3d 500 (2007).

¹¹³ Fred C. Stevenson Research Professor, George Washington University Law School.

¹¹⁴ Orin S. Kerr, Enforcing Privacy Rights: Communications Privacy: Lifting the “Fog” of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law, 54 Hastings L.J. 805 (2003).

¹¹⁵ 442 U.S. 735 (1979).

¹¹⁶ 490 F.3d 455, 470-71 (6th Cir. 2007).

¹¹⁷ Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L. Rev. 2105, 2115 (2009).

¹¹⁸ Id. The Sixth Circuit later granted a petition for rehearing en banc and skirted the constitutional issue. It vacated the Decision upon a finding that the case was unripe.

¹¹⁹ Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010).

¹²⁰ These are: 1.) COMESA Draft Model Bill, Art. 38; 2.) Commonwealth Model Law, Art. 19; 3.) Council of Europe Cybercrime Convention, Art. 20; 4.) ITU/CARICOM/CTU Model Legislative Texts, Art. 25; 5.) League of Arab States Convention, Art. 28 and 6.) Draft African Union Convention, Art. 3-55.

¹²¹ United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime (Draft), 130 (2013).

¹²² TSN dated 29 January 2013, p. 49.

¹²³ Id at 86.

¹²⁴ Id at 95-96.

¹²⁵Ople v. Torres, 354 Phil. 948 (1998).

¹²⁶ TSN dated 29 January 2013, p. 48.

¹²⁷ See Senate Bill (SB) No. 126, “An Act Repealing Section 4(c) (4), Chapter II of Republic Act No. 10175”; SB No. 11, “An Act Amending Section 6 of Republic Act 10175 Otherwise Known as an Act Defining Cybercrime, Providing For the Prevention, Investigation and Imposition of Penalties Therefor and For Other Purposes”; SB No. 154, “An Act Amending Republic Act No. 10175, Otherwise Known as the Cybercrime Prevention Act of 2012”; SB No. 249, “An Act Repealing Sections 4 (c) (4), 5, 6, and 7 of RA 10175, Otherwise Known as the Cybercrime Prevention Act of 2012”; SB Nos 53 and 1091 and House Bill (HB) No. 1086 or the Magna Carta for Philippine Internet Freedom; HB No. 1132, “An Act Repealing Republic Act No. 10175 or the Cybercrime Prevention Act of 2012.”

¹²⁸ Richard W. Downing, Shoring up the Weakest Link: What Lawmakers around the World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime, 43 Colum. J. Transnat’l L. 705 (2005).

¹²⁹ TSN dated 29 January 2013, p. 50.

¹³⁰ TSN dated 29 January 2013, p. 92.

¹³¹ Ray Kurzweil, The Age of Spiritual Machines: When Computers Exceed Human Intelligence, 13 (1999); Ray Kurzweil, The Law of Accelerating Returns, 7 March 2001, available at , accessed on 29 September 2013.

¹³² See: Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto, [Sep. Op. of J. Mendoza] 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2; and Ashwander v. Tennessee Valley Authority, 297 U.S. 288 [1936]).

¹³³ See: Republic v. Roque, G.R. No. 204603, 24 September 2013.

---

CARPIO, J.:

I concur in striking down as unconstitutional Section 4(c)(3), Section 7, Section 12, and Section 19 of Republic Act No. 10175 (RA 10175) (1) penalizing unsolicited commercial speech; (2) allowing multiple prosecutions post-conviction under RA 10175; (3) authorizing the warrantless collection in bulk of traffic data; and (4) authorizing the extrajudicial restriction or blocking of access to computer data, respectively, for being violative of the Free Speech, Search and Seizure, Privacy of Communication, and Double Jeopardy Clauses.

I dissent, however, from the conclusion that (1) Article 354 of the Revised Penal Code (Code) creating the presumption of malice in defamatory imputations, and (2) Section 4(c)(1) of RA 10175 penalizing “cybersex,” are not equally violative of the constitutional guarantees of freedom of speech and expression. I therefore vote to declare Article 354 of the Code, as far as it applies to public officers and public figures, and Section 4(c)(1) of RA 10175, unconstitutional for violating Section 4, Article III of the Constitution.

Article 354 of the Code Repugnant to the Free Speech Clause

Article 354’s Presumption of Malice
Irreconcilable with Free Speech Jurisprudence
On Libel of Public Officers and Public
Figures

Article 4(c)(4) of RA 10175 impliedly re-adopts Article 354 of the Code without any qualification. Article 354 took effect three years² before the ratification of the 1935 Constitution that embodied the Free Speech Clause.³ Unlike most of the provisions of the Code which are derived from the Spanish Penal Code of 1870, Article 354 is based on legislation⁴ passed by the Philippine Commission during the American occupation. Nevertheless, Article 354 is inconsistent with norms on free speech and free expression now prevailing in both American and Philippine constitutional jurisprudence.

Article 354 provides as follows:chanRoblesVirtualawlibrary

Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:chanRoblesVirtualawlibrary

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Italicization supplied)

While the text of Article 354 has remained intact since the Code’s enactment in 1930, constitutional rights have rapidly expanded since the latter half of the last century, owing to expansive judicial interpretations of broadly worded constitutional guarantees such as the Free Speech Clause. Inevitably, judicial doctrines crafted by the U.S. Supreme Court protective of the rights to free speech, free expression and free press found their way into local jurisprudence, adopted by this Court as authoritative interpretation of the Free Speech Clause in the Philippine Bill of Rights. One such doctrine is the New York Times actual malice rule, named after the 1964 case in which it was crafted, New York Times v. Sullivan.⁵crallawlibrary

New York Times broadened the mantle of protection accorded to communicative freedoms by holding that the “central meaning” of the Free Speech Clause is the protection of citizens who criticize official conduct even if such criticism is defamatory and false. True, the defamed public official may still recover damages for libel. However, as precondition for such recovery, New York Times laid down a formidable evidentiary burden⁶ - the public official must prove that the false defamatory statement was made

“with actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”⁷crallawlibrary

The broad protection New York Times extended to communicative rights of citizens and the press vis-à-vis the conduct of public officials was grounded on the theory that “unfettered interchange of ideas for the bringing about of political and social changes desired by the people”⁸ is indispensable in perfecting the experiment of self-governance. As for erroneous statements, the ruling considered them “inevitable in free debate, and that [they] must be protected if the freedoms of expression are to have the ‘breathing space’ that they need x x x to survive.”⁹ The actual malice doctrine was later made applicable to public figures.¹⁰crallawlibrary

Six years after New York Times became U.S. federal law in 1964, this Court took note of the actual malice doctrine as part of a trend of local and foreign jurisprudence enlarging the protection of the press under the Free Speech Clause.¹¹ Since then, the Court has issued a steady stream of decisions applying New York Times as controlling doctrine to dismiss civil¹² and criminal¹³ libel complaints filed by public officers or public figures. As Justice Teehankee aptly noted:chanRoblesVirtualawlibrary

The Court has long adopted the criterion set forth in the U.S. benchmark case of New York Times Co. vs. Sullivan that “libel can claim no talismanic immunity from constitutional limitations” that protect the preferred freedoms of speech and press. Sullivan laid down the test of actual malice, viz. “(T)he constitutional guaranty of freedom of speech and press prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” x x x.¹⁴crallawlibrary

Indeed, just as the actual malice doctrine is enshrined in the U.S. First Amendment jurisprudence, it too has become interwoven into our own understanding of the Free Speech Clause of the Philippine Bill of Rights of the 1973 and 1987 Constitutions.¹⁵crallawlibrary

The actual malice rule enunciates three principles, namely:chanRoblesVirtualawlibrary

1)	Malice is not presumed even in factually false and defamatory statements against public officers and public figures; it must be proven as a fact for civil and criminal liability to lie;
2)	Report on official proceedings or conduct of an officer may contain fair comment, including factually erroneous and libelous criticism; and
3)	Truth or lack of reckless disregard for the truth or falsity of a defamatory statement is an absolute defense against public officers and public figures.

In contrast, Article 354, in relation to Article 361 and Article 362 of the Code, operates on the following principles:chanRoblesVirtualawlibrary

1)	Malice is presumed in every defamatory imputation, even if true (unless good intention and justifiable motives are shown);
2)	Report on official proceedings or conduct of an officer must be made without comment or remarks, or, alternatively, must be made without malice;16 and
3)	In defamatory allegations made against a public official, truth is a defense only if the imputed act or omission constitutes a crime or if the imputed act or omission relates to official duties.17

The actual malice rule and Article 354 of the Code impose contradictory rules on (1) the necessity of proof of malice in defamatory imputations involving public proceedings or conduct of a public officer or public figure; and (2) the availability of truth as a defense in defamatory imputations against public officials or public figures. The former requires proof of malice and allows truth as a defense unqualifiedly, while the latter presumes malice and allows truth as a defense selectively. The repugnancy between the actual malice rule and Article 354 is clear, direct and absolute.

Nonetheless, the Office of the Solicitor General (OSG) argues for the retention of Article 354 in the Code, suggesting that the Court can employ a “limiting construction” of the provision to reconcile it with the actual malice rule.¹⁸ The ponencia appears to agree, holding that the actual malice rule “impl[ies] a stricter standard of ‘malice’ x x x where the offended party is a [public officer or] public figure,” the “penal code and, implicitly, the cybercrime law mainly target libel against private persons.”¹⁹crallawlibrary

Allowing a criminal statutory provision clearly repugnant to the Constitution, and directly attacked for such repugnancy, to nevertheless remain in the statute books is a gross constitutional anomaly which, if tolerated, weakens the foundation of constitutionalism in this country. “The Constitution is either a superior, paramount law, x x x or it is on a level with ordinary legislative acts,”²⁰ and if it is superior, as we have professed ever since the Philippines operated under a Constitution, then “a law repugnant to the Constitution is void.”²¹crallawlibrary

Neither does the ponencia’s claim that Article 354 (and the other provisions in the Code penalizing libel) “mainly target libel against private persons” furnish justification to let Article 354 stand. First, it is grossly incorrect to say that Article 354 “mainly target[s] libel against private persons.” Article 354 expressly makes reference to news reports of “any judicial, legislative or other official proceedings” which necessarily involve public officers as principal targets of libel. Second, the proposition that this Court ought to refrain from exercising its power of judicial review because a law is constitutional when applied to one class of persons but unconstitutional when applied to another class is fraught with mischief. It stops this Court from performing its duty,²² as the highest court of the land, to “say what the law is” whenever a law is attacked as repugnant to the Constitution. Indeed, it is not only the power but also the duty of the Court to declare such law unconstitutional as to one class, and constitutional as to another, if valid and substantial class distinctions are present.

Undoubtedly, there is a direct and absolute repugnancy between Article 354, on one hand, and the actual malice rule under the Free Speech Clause, on the other hand. Section 4(c)(4) of RA 10175 impliedly re-adopts Article 354 without qualification, giving rise to a clear and direct conflict between the re-adopted Article 354 and the Free Speech Clause based on prevailing jurisprudence. It now becomes imperative for this Court to strike down Article 354, insofar as it applies to public officers and public figures.

The ramifications of thus striking down Article 354 are: (1) for cases filed by public officers or public figures, civil or criminal liability will lie only if the complainants prove, through the relevant quantum of proof, that the respondent made the false defamatory imputation with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not; and (2) for cases filed by private individuals, the respondent cannot raise truth as a defense to avoid liability if there is no good intention and justifiable motive.

Section 4(c)(1) Fails Strict Scrutiny

Section 4(c)(1) which provides:chanRoblesVirtualawlibrary

Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibrary

x x x x

(c) Content-related Offenses:chanRoblesVirtualawlibrary

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

is attacked by petitioners as unconstitutionally overbroad. Petitioners in G.R. No. 203378 contend that Section 4(c)(1) sweeps in protected online speech such as “works of art that depict sexual activities” which museums make accessible to the public for a fee.²³ Similarly, the petitioner in G.R. No. 203359, joining causes with the petitioner in G.R. No. 203518, adopts the latter’s argument that the crime penalized by Section 4(c)(1) “encompasses even commercially available cinematic films which feature adult subject matter and artistic, literary or scientific material and instructional material for married couples.”²⁴crallawlibrary

The OSG counters that Section 4(c)(1) does not run afoul with the Free Speech Clause because it merely “seeks to punish online exhibition of sexual organs and activities or cyber prostitution and white slave trade for favor or consideration.”²⁵ It adds that “publication of pornographic materials in the internet [is] punishable under Article 201 of the Revised Penal Code x x x which has not yet been declared unconstitutional.”²⁶ The ponencia agrees, noting that the “subject” of Section 4(c)(1) is “not novel” as it is allegedly covered by two other penal laws, Article 201 of the Code and Republic Act No. 9208 (The Anti-Trafficking in Persons Act of 2003 [RA 9208]). The ponencia rejects the argument that Section 4(c)(1) is overbroad because “it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating x x x the lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system.”²⁷crallawlibrary

The government and the ponencia’s position cannot withstand analysis.

As Section 4(c) of RA 10175 itself states, the crimes defined under that part of RA 10175, including Section 4(c)(1), are “Content-related Offenses,” penalizing the content of categories of online speech or expression. As a content-based regulation, Section 4(c)(1) triggers the most stringent standard of review for speech restrictive laws - strict scrutiny - to test its validity.²⁸ Under this heightened scrutiny, a regulation will pass muster only if the government shows (1) a compelling state interest justifying the suppression of speech; and (2) that the law is narrowly-tailored to further such state interest. On both counts, the government in this case failed to discharge its burden.

The state interests the OSG appears to advance as bases for Section 4(c)(1) are: (1) the protection of children “as cybersex operations x x x are most often committed against children,” and (2) the cleansing of cyber traffic by penalizing the online publication of pornographic images.²⁹ Although legitimate or even substantial, these interests fail to rise to the level of compelling interests because Section 4(c)(1) is both (1) overinclusive in its reach of the persons exploited to commit the offense of cybersex, and (2) underinclusive in its mode of commission. These defects expose a legislative failure to narrowly tailor Section 4(c)(1) to tightly fit its purposes.

As worded, Section 4(c)(1) penalizes the “willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.” On the first interest identified by the government, the overinclusivity of this provision rests on the lack of a narrowing clause limiting its application to minors. As a result, Section 4(c)(1) penalizes the “lascivious exhibition of sexual organs of, or sexual activity” involving minors and adults, betraying a loose fit between the state interest and the means to achieve it.

Indeed, the proffered state interest of protecting minors is narrowly advanced not by Section 4(c)(1) but by the provision immediately following it, Section 4(c)(2), which penalizes online child pornography. Section 4(c)(2) provides:chanRoblesVirtualawlibrary

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system x x x.

Republic Act No. 9775 defines “Child pornography” as referring to -

any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities.³⁰ (Emphasis supplied)

Under Section 3 of that law, the term “explicit sexual activities” is defined as follows:chanRoblesVirtualawlibrary

Section 3. Definition of terms. -

x x x x

(c) “Explicit Sexual Activity” includes actual or simulated -

    (1) As to form:chanRoblesVirtualawlibrary

(i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex;

x x x x

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus[.] (Emphasis supplied)

Clearly then, it is Section 4(c)(2), not Section 4(c)(1), that narrowly furthers the state interest of protecting minors by punishing the “representation x x x by electronic means” of sexually explicit conduct including the exhibition of sexual organs of, or sexual acts, involving minors. Section 4(c)(1) does not advance such state interest narrowly because it is broadly drawn to cover both minors and adults. Section 4(c)(2) is constitutional because it narrowly prohibits cybersex acts involving minors only, while Section 4(c)(1) is unconstitutional because it expands the prohibition to cybersex acts involving both minors and adults when the justification for the prohibition is to protect minors only.

The overinclusivity of Section 4(c)(1) vis-a-vis the second state interest the government invokes results from the broad language Congress employed to define “cybersex.” As the petitioners in G.R. No. 203378, G.R. No. 203359 and G.R. No. 203518 correctly point out, the crime of “lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration” embraces within its ambit “works of art that depict sexual activities” made accessible to the public for a fee or “commercially available cinematic films which feature adult subject matter and artistic, literary or scientific material and instructional material for married couples.”³¹ Congress could have narrowly tailored Section 4(c)(1) to cover only online pornography by hewing closely to the Miller test - the prevailing standard for such category of unprotected speech, namely, “an average person, applying contemporary standards would find [that] the work, taken as a whole, appeals to the prurient interest by depict[ing] or describ[ing] in a patently offensive way, sexual conduct specifically defined by the applicable x x x law and x x x, taken as a whole, lacks serious literary, artistic, political, or scientific value.”³²crallawlibrary

Moreover, Section 4(c)(1) penalizes “any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.” There are many fee-based online medical publications that illustrate sexual organs and even sexual acts. Section 4(c)(1) will now outlaw all these online medical publications which are needed by doctors in practicing their profession. This again shows the overinclusiveness of Section 4(c)(1) in violation of the Free Speech Clause.

The loose fit between the government interests of cleansing the Internet channels of immoral content and of protecting minors, on the one hand, and the means employed to further such interests, on the other hand, is highlighted by the underincluvisity of Section 4(c)(1) insofar as the manner by which it regulates content of online speech. Section 4(c)(1) limits the ambit of its prohibition to fee-based websites exhibiting sexual organs or sexual activity. In doing so, it leaves outside its scope and unpunished under Section 4(c)(1) non-fee based porn websites, such as those generating income through display advertisements. The absence of regulation under Section 4(c)(1) of undeniably unprotected online speech in free and open porn websites defeats the advancement of the state interests behind the enactment of Section 4(c)(1) because unlike fee-based online porn websites where the pool of viewers is narrowed down to credit card-owning subscribers who affirm they are adults, free and open porn websites are accessible to all, minors and adults alike. Instead of purging the Internet of pornographic content, Section 4(c)(1) will trigger the proliferation of free and open porn websites which, unlike their fee-based counterparts, are not subject to criminal regulation under Section 4(c)(1). What Section 4(c)(1) should have prohibited and penalized are free and open porn websites which are accessible by minors, and not fee-based porn websites which are accessible only by credit card-owning adults, unless such fee-based websites cater to child pornography, in which case they should also be prohibited and penalized.

It is doubtful whether Congress, in failing to tailor Section 4(c)(1) to narrowly advance state interests, foresaw this worrisome and absurd effect. It is, unfortunately, an altogether common by-product of loosely crafted legislations.

Contrary to the ponencia’s conclusion, Section 4(c)(1) does not cover “the same subject” as Article 201 of the Code and RA 9208. Article 201 penalizes “Immoral doctrines, obscene publications and exhibitions and indecent shows” as understood under the Miller test.³³ On the other hand, RA 9208 penalizes trafficking in persons (or its promotion) for illicit purposes (Section 4[a]). The fact that these statutory provisions remain valid in the statute books has no bearing on the question whether a statutory provision penalizing the “lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration” offends the Free Speech Clause.

The majority’s decision to uphold the validity of Section 4(c)(1) reverses, without explanation, the well-entrenched jurisprudence in this jurisdiction applying the obscenity test of Miller. Just five years ago in 2009, this Court unanimously applied Miller in Soriano v. Laguardia³⁴ to test whether the statements aired on late night TV qualified for protection under the Free Speech Clause. Much earlier in 2006, the Court also applied Miller to review a conviction for violation of Article 201 of the Code on obscene publications in Fernando v. Court of Appeals.³⁵ It was in Pita v. Court of Appeals,³⁶ however, decided in 1989 over a decade after Miller, where the Court had first occasion to describe Miller as “the latest word” in the evolution of the obscenity test in the U.S. jurisdiction. Indeed, as I noted in my separate opinion in Soriano, Miller is an “expansion” of previous tests on pornography developed in the U.S. and English jurisdictions, liberalizing the elements of previous tests (Hicklin and Roth):chanRoblesVirtualawlibrary

The leading test for determining what material could be considered obscene was the famous Regina v. Hicklin case wherein Lord Cockburn enunciated thus:chanRoblesVirtualawlibrary

I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

Judge Learned Hand, in United States v. Kennerly, opposed the strictness of the Hicklin test even as he was obliged to follow the rule. He wrote:chanRoblesVirtualawlibrary

I hope it is not improper for me to say that the rule as laid down, however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.

Roth v. United States laid down the more reasonable and thus, more acceptable test for obscenity: ”whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Such material is defined as that which has ”a tendency to excite lustful thoughts,” and ”prurient interest” as ”a shameful or morbid interest in nudity, sex, or excretion.”

Miller v. California merely expanded the Roth test to include two additional criteria: ”the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and the work, taken as whole, lacks serious literary, artistic, political, or scientific value.” The basic test, as applied in our jurisprudence, extracts the essence of both Roth and Miller - that is, whether the material appeals to prurient interest.³⁷ (Italicization supplied; internal citations omitted)

Miller is the modern obscenity test most protective of speech uniformly followed in this jurisdiction for over two decades. The majority, in upholding Section 4(c)(1) and rejecting Miller, regresses to less protective frameworks of speech analysis. Because neither the ponencia nor the concurring opinions devote discussion on this doctrinal shift, one is left guessing whether the Philippine jurisdiction’s test on pornography has reverted only up to Roth or reaches as far back as the discredited Hicklin test. Either way, the lowered protection afforded to works claimed as obscene turns back the clock of free expression protection to the late 1960s and beyond when prevailing mores of morality are incongruous to 21^st century realities.

Section 4(c)(3) Repugnant to the Free Speech Clause

Section 4(c)(3) of RA 10175 makes criminal the transmission through a computer system of “electronic communication x x x which seek to advertise, sell, or offer for sale products and services” unless they fall under three categories of exceptions. These categories are: (1) the recipient of the commercial message “gave prior affirmative consent” to do so; (2) the

“primary intent” of the commercial message “is for service and/or administrative announcements from the sender” to its “users, subscribers or customers”; and (3) the commercial message (a) has an “opt-out” feature; (b) has a source which is “not purposely disguise[d]”; and (c) “does not purposely include misleading information x x x to induce the recipient to read the message.” According to the OSG, Congress enacted Section 4(c)(3) to improve the “efficiency of commerce and technology” and prevent interference with “the owner’s peaceful enjoyment of his property [computer device].”³⁸crallawlibrary

Section 4(c)(3) fails scrutiny. Section 4(c)(3) impermissibly restricts the flow of truthful and non-misleading commercial speech in cyberspace that does not fall under any of the exceptions in Section 4(c)(3), lowering the protection it enjoys under the Free Speech Clause.³⁹ Section 4(c)(3) would be constitutional if it allowed the free transmission of truthful and non-misleading commercial speech, even though not falling under any of the exceptions in Section 4(c)(3). There is no legitimate government interest in criminalizing per se the transmission in cyberspace of truthful and non-misleading commercial speech.

Under the exception clauses of Section 4(c)(3), commercial speech may be transmitted online only when (1) the recipient has subscribed to receive it (“opted-in”); or (2) the commercial speech, directed to its “users, subscribers or customers,” contains announcements; or (3) the undisguised, non-misleading commercial speech has an “opt-out” feature. The combination of these exceptions results in penalizing the transmission online (1) of commercial speech with no “opt-out” feature to non-subscribers, even if truthful and non-misleading; and (2) of commercial speech which does not relay “announcements” to subscribers, even if truthful and non-misleading. Penalizing the transmission of these protected categories of commercial speech is devoid of any legitimate government interest and thus violates the Free Speech Clause.

Indeed, the free flow of truthful and non-misleading commercial speech online should remain unhampered to assure freedom of expression of protected speech. In cyberspace, the free flow of truthful and non-misleading commercial speech does not obstruct the public view or degrade the aesthetics of public space in the way that billboards and poster advertisements mar the streets, highways, parks and other public places. True, commercial speech does not enjoy the same protection as political speech in the hierarchy of our constitutional values. However, any regulation of truthful and non-misleading commercial speech must still have a legitimate government purpose. Regulating truthful and non-misleading commercial speech does not result in “efficiency of commerce and technology” in cyberspace.

In fact, the free flow of truthful and non-misleading commercial speech should be encouraged in cyberspace for the enlightenment of the consuming public, considering that it is cost-free to the public and almost cost-free to merchants. Instead of using paper to print and mail truthful and non-misleading commercial speech, online transmission of the same commercial message will save the earth’s dwindling forests and be more economical, reducing marketing costs and bringing down consumer prices. If any regulation of truthful and non-misleading commercial speech is to take place, its terms are best fixed through the interplay of market forces in cyberspace. This is evident, in fact, in the menu of options currently offered by email service providers to deal with unwanted or spam email, allowing their account holders to customize preferences in receiving and rejecting them. Unwanted or spam emails automatically go to a separate spam folder where all the contents can be deleted by simply checking the “delete all” box and clicking the delete icon. Here, the account holders are given the freedom to read, ignore or delete the unwanted or spam email with hardly any interference to the account holders’ peaceful enjoyment of their computer device. Unless the commercial speech transmitted online is misleading or untruthful, as determined by courts, government should step aside and let this efficient self-regulatory market system run its course.

Section 7 of RA 10175 Repugnant to the Double Jeopardy and Free Speech Clauses

The petitioners in G.R. No. 203335 and G.R. No. 203378 attack the constitutionality of Section 7, which makes conviction under RA 10175 non-prejudicial to “any liability for violation of any provision of the Revised Penal Code, as amended, or special laws,” for being repugnant to the Double Jeopardy Clause. The OSG sees no merit in the claim, citing the rule that “a single set of acts may be prosecuted and penalized under two laws.”⁴⁰crallawlibrary

The OSG misapprehends the import of Section 7. Although RA 10175 defines and punishes a number of offenses to which Section 7 applies, its application to the offense of online libel under Section 4(c)(4) of RA 10175, in relation to the offense of libel under Article 353 of the Code, suffices to illustrate its unconstitutionality for trenching the Double Jeopardy and Free Speech Clauses.

RA 10175 does not define libel. Its definition is found in the Code (Article 353) which provides:chanRoblesVirtualawlibrary

Definition of libel - A libel is a public and malicious imputation of a crime or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

As defined, the medium through which libel is committed is not an element of such offense. What is required of the prosecution are proof of the (1) statement of a discreditable act or condition of another person; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice.⁴¹ The irrelevance of the medium of libel in the definition of the crime is evident in Article 355 of the Code which punishes libel with a uniform penalty⁴² whether it is committed “by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”

RA 10175 adopts the Code’s definition of libel by describing online libel under Section 4(c)(4) as “[t]he unlawful or prohibited acts as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.” By adopting the Code’s definition of libel, Section 4(c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article 355 of the Code. Section 4(c)(4) merely adds the media of “computer system or any other similar means which may be devised in the future” to the list of media enumerated in Article 355. This is understandable because at the time the Code was enacted in 1930, the Internet was non-existent. In the words of the OSG itself (in contradiction to its position on the constitutionality of Section 7), Congress enacted Section 4(c)(4) not to create a new crime, but merely to “ma[ke] express an avenue already covered by the term ’similar means’ under Article 355, to keep up with the times”:chanRoblesVirtualawlibrary

Online libel is not a new crime. Online libel is a crime punishable under x x x Article 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an avenue already covered by the term “similar means” under Article 355, to keep up with the times.⁴³ (Emphasis supplied)

For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and Article 353 in relation to Article 355 of the Code define and penalize the same offense of libel. Under the Double Jeopardy

Clause, conviction or acquittal under either Section 4(c)(4) or Article 353 in relation to Article 355 constitutes a bar to another prosecution for the same offense of libel.

The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No. 203378 provides a perfect example for applying the rules on print and online libel in relation to the Double Jeopardy Clause. These petitioners write columns which are published online and in print by national and local papers.⁴⁴ They allege, and respondents do not disprove, that “their columns see publication in both print and online versions of the papers they write for.”⁴⁵ Should these petitioners write columns for which they are prosecuted and found liable under Section 4(c)(4) of RA 10175 for online libel the Double Jeopardy Clause bars their second prosecution for print libel for the same columns upon which their first conviction rested, under Article 353 in relation to Article 355 of the Code. Such constitutional guarantee shields them from being twice put in jeopardy of punishment for the same offense of libel.

The foregoing analysis applies to all other offenses defined and penalized under the Code or special laws which (1) are penalized as the same offense under RA 10175 committed through the use of a computer system; or (2) are considered aggravated offenses under RA 10175. Conviction or acquittal under the Code or such special laws constitutes a bar to the prosecution for the commission of any of the offenses defined under RA 10175. Thus, for instance, conviction or acquittal under Section 4(a) of RA 9775 (use of a child to create child pornography⁴⁶) constitutes a bar to the prosecution for violation of Section 4(c)(2) of RA 19175 (online child pornography) and vice versa. This is because the offense of child pornography under RA 9775 is the same offense of child pornography under RA 10175 committed through the use of a computer system.

Section 7 of RA 10175 also offends the Free Speech Clause by assuring multiple prosecutions of those who fall under the ambit of Section 4(c)(4). The specter of multiple trials and sentencing, even after conviction under RA 10175, creates a significant and not merely incidental chill on online speech. Section 7 stifles speech in much the same way that excessive prison terms for libel, subpoenas to identify anonymous online users or high costs of libel litigation do. It has the effect of making Internet users “steer far wide of the unlawful zone”⁴⁷ by practicing self-censorship, putting to naught the democratic and inclusive culture of the Internet where anyone can be a publisher and everyone can weigh policies and events from anywhere in the world in real time. Although Section 7, as applied to Section 4(c)(4), purports to strengthen the protection to private reputation that libel affords, its sweeping ambit deters not only the online publication of defamatory speech against private individuals but also the online dissemination of scathing, false, and defamatory statements against public officials and public figures which, under the actual malice rule, are conditionally protected. This chilling effect on online communication stifles robust and uninhibited debate on public issues, the constitutional value lying at the core of the guarantees of free speech, free expression and free press.

Section 12 of RA 10175 Violative of the Search and Seizure and Privacy of Communication Clauses

Section 12 of RA 10175 grants authority to the government to record in bulk and in real time electronic data transmitted by means of a computer system,⁴⁸ such as through mobile phones and Internet-linked devices. The extent of the power granted depends on the type of electronic data sought to be recorded, that is, whether traffic data or non-traffic data (“all other data”). For traffic data, which RA 10175 defines as “the communication’s origin, destination, route, time, date, size, duration, or type of underlying service,” the government, for “due cause” can record them on its own or with the aid of service providers, without need of a court order. For non-traffic data collection, a “court warrant” is required based on reasonable grounds that the data to be collected is “essential” for the prosecution or prevention of violation of any of the crimes defined under RA 10175. The full text of Section 12 provides:chanRoblesVirtualawlibrary

Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

Section 12 of RA 10175 is the statutory basis for intelligence agencies of the government to undertake warrantless electronic data surveillance and collection in bulk to investigate and prosecute violations of RA 10175.

Section 12 fails constitutional scrutiny. Collection in bulk of private and personal electronic data transmitted through telephone and the Internet allows the government to create profiles of the surveilled individuals’ close social associations, personal activities and habits, political and religious interests, and lifestyle choices expressed through these media. The intrusion into their private lives is as extensive and thorough as if their houses, papers and effects are physically searched. As such, collection in bulk of such electronic data rises to the level of a search and seizure within the meaning of the Search and Seizure Clause, triggering the requirement for a judicial warrant grounded on probable cause. By vesting the government with authority to undertake such highly intrusive search and collection in bulk of personal digital data without benefit of a judicial warrant, Section 12 is unquestionably repugnant to the guarantee under the Search and Seizure Clause against warrantless searches and seizures.

Further, Section 12 allows the use of advanced technology to impermissibly narrow the right to privacy of communication guaranteed under the Privacy of Communications Clause. Although such clause exempts from its coverage searches undertaken “when public safety or order requires otherwise, as prescribed by law,” Section 12 is not a “law” within the contemplation of such exception because it does not advance the interest of “public safety or order.” Nor does it comply with the warrant requirement which applies to all searches of communication and correspondence not falling under recognized exceptions to the Search and Seizure Clause, such as the search of non-legal communication sent and received by detainees⁴⁹ search of electronic data stored in government issued computers,⁵⁰ or security searches at airports.⁵¹crallawlibrary

Scope of Information Subject of Real-Time Extrajudicial Collection and Analysis by Government

Section 12’s definition of traffic data - the communication’s origin, destination, route, time, date, size, duration, or type of underlying service - encompasses the following information for mobile phone, Internet and email communications:chanRoblesVirtualawlibrary

Mobile phone:chanRoblesVirtualawlibrary

telephone number of the caller
telephone number of the person called
location of the caller
location of the person called
the time, date, and duration of the call
(For messages sent via the Short Messaging System, the same information are available save for the duration of the communication.)

Email:chanRoblesVirtualawlibrary

date
time
source
destination and size
attachment/s
country of sender and recipient
city of sender and recipient

Internet:chanRoblesVirtualawlibrary

search keywords
public IP (Internet Protocol) of user
geolocation of user
client’s name (for smartphone, PC or desktop)
browser
OS (Operating System)
URL (Universal Source Locator)
date and time of use

Unlike personal information which form part of the public domain (hence, readily accessible) because their owners have either disclosed them to the government as a result of employment in that sector or are part of transactions made with regulatory agencies (such as the land transportation, passport and taxing agencies), the information indicated above are personal and private. They reveal data on the social associations, personal activities and habits, political and religious interests, and lifestyle choices of individuals that are not freely accessible to the public. Because Section 12 contains no limitation on the quantity of traffic data the government can collect, state intelligence agencies are free to accumulate and analyze as much data as they want, anytime they want them.

Randomly considered, traffic data do not reveal much about a person’s relationships, habits, interests or lifestyle expressed online or through phone. After all, they are mere bits of electronic footprint tracking a person’s electronic communicative or expressive activities. When compiled in massive amounts, however, traffic data, analyzed over time, allows the state to create a virtual profile of the surveilled individuals, revealing their close relationships, mental habits, political and religious interests, as well as lifestyle choices - as detailed as if the government had access to the content of their letters or conversations. Or put differently -

When [traffic] information x x x is combined, it can identify all of our surreptitious connections with the world, providing powerful evidence of our activities and beliefs. [L]aw enforcement can construct a “complete mosaic of a person’s characteristics” through this type of x x x surveillance. Under these circumstances, the information the government accumulates is more akin to content than mere cataloguing.⁵² (Emphasis supplied)

The profiling of individuals is not hampered merely because the bulk data relate to telephone communication. As pointed out in a Report, dated 12 December 2013, by a government panel of experts⁵³ which reviewed the U.S. government’s electronic surveillance policy (Panel’s Report) -

[t]he record of every telephone call an individual makes or receives over the course of several years can reveal an enormous amount about that individual’s private life. x x x. [T]elephone calling data can reveal x x x an individual’s “familial, political, professional, religious, and sexual associations.” It can reveal calls “to the psychiatrist, the plastic surgeon, x x x the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay bar, and on and on.”⁵⁴crallawlibrary

This virtual profiling is possible not only because of software⁵⁵ which sifts through telephone and Internet data to locate common patterns but also because, for Internet “Universal Resource Locators x x x, they are [both] addresses (e.g., www.amazon.com/kidneydisease) and [links] x x x allowing access to the website and thus permit government to ascertain what the user has viewed.”⁵⁶ The identities of users of mobile phone numbers can easily be found through Internet search or in public and private mobile phone directories, calling cards, letterheads and similar documents.

Bulk Data Surveillance Rises to the
Level of a “Search and Seizure” Within
the Meaning of the Search and Seizure
Clause

There is no quarrel that not all state access to personal information amount to a “search” within the contemplation of the Search and Seizure Clause. Government collection of data readily available (or exposed) to the public, even when obtained using devices facilitating access to the information, does not implicate constitutional concerns of privacy infringement.⁵⁷ It is when government, to obtain private information, intrudes into domains over which an individual holds legitimate privacy expectation that a “search” takes place within the meaning of the Search and Seizure Clause.⁵⁸ To determine whether the collection of bulk traffic data of telephone and online communication amounts to a constitutional search, the relevant inquiry, therefore, is whether individuals using such media hold legitimate expectation that the traffic data they generate will remain private.

Unlike this Court, the U.S. Supreme Court had weighed such question and answered in the negative. In Smith v. Maryland,⁵⁹ promulgated in 1979,

that court was confronted with the issue whether the warrantless monitoring of telephone numbers dialed from a private home and stored by the telephone company, amounted to a search within the meaning of the Fourth Amendment. The U.S. High Court’s analysis centered on the reasoning that a caller has no legitimate privacy expectation over telephone numbers stored with telephone companies because he “assumed the risk that the company would reveal to police the numbers he dialed.”⁶⁰crallawlibrary

Several reasons undercut not only the persuasive worth of Smith in this jurisdiction but also the cogency of its holding. First, all three modern Philippine Constitutions, unlike the U.S. Constitution, explicitly guarantee “privacy of communications and correspondence.”⁶¹ This is a constitutional recognition, no less, of the legitimacy of the expectation of surveilled individuals that their communication and correspondence will remain private and can be searched by the government only upon compliance with the warrant requirement under the Search and Seizure Clause. Although such guarantee readily protects the content of private communication and correspondence, the guarantee also protects traffic data collected in bulk which enables the government to construct profiles of individuals’ close social associations, personal activities and habits, political and religious interests, and lifestyle choices, enabling intrusion into their lives as extensively as if the government was physically searching their “houses, papers and effects.”⁶²crallawlibrary

Second, at the time the U.S. Supreme Court decided Smith in 1979, there were no cellular phones, no Internet and no emails as we know and use them today. Over the last 30 years, technological innovations in mass media and electronic surveillance have radically transformed the way people communicate with each other and government surveils individuals. These radical changes undergirded the refusal of the District Court of Columbia to follow Smith in its ruling promulgated last 16 December 2013, striking down portions of the spying program of the U.S. National Security Agency (NSA).⁶³ The District Court observed:chanRoblesVirtualawlibrary

[T]he relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. x x x x In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, x x x which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the (NSA) now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. x x x.⁶⁴ (Emphasis supplied)

Third, individuals using the telephone and Internet do not freely disclose private information to the service providers and the latter do not store such information in trust for the government. Telephone and Internet users divulge private information to service providers as a matter of necessity to access the telephone and Internet services, and the service providers store such information (within certain periods) also as a matter of necessity to enable them to operate their businesses. In what can only be described as an outright rejection of Smith’s analysis, the Panel’s Report, in arriving at a similar conclusion, states:⁶⁵crallawlibrary

In modern society, individuals, for practical reasons, have to use banks, credit cards, e-mail, telephones, the Internet, medical services, and the like. Their decision to reveal otherwise private information to such third parties does not reflect a lack of concern for the privacy of the information, but a necessary accommodation to the realities of modern life. What they want — and reasonably expect — is both the ability to use such services and the right to maintain their privacy when they do so.⁶⁶ (Emphasis supplied)

Clearly then, bulk data surveillance and collection is a “search and seizure” within the meaning of the Search and Seizure Clause not only because it enables maximum intrusion into the private lives of the surveilled individuals but also because such individuals do not forfeit their privacy expectations over the traffic data they generate by transacting with service providers. Bulk data and content-based surveillance and collection are functionally identical in their access to personal and private information. It follows that the distinction Section 12 of RA 10175 draws between content-based and bulk traffic data surveillance and collection, requiring judicial warrant for the former and a mere administrative “due cause” for the latter, is unconstitutional. As “searches and seizures” within the contemplation of Search and Seizure Clause, bulk data and content-based surveillance and collection are uniformly subject to the constitutional requirement of a judicial warrant grounded on probable cause.

Section 12 of RA 10175
Impermissibly Narrows the
Right to Privacy of Communication
and Correspondence

The grant under Section 12 of authority to the government to undertake bulk data surveillance and collection without benefit of a judicial warrant enables the government to access private and personal details on the surveilled individuals’ close social associations, personal activities and habits, political and religious interests, and lifestyle choices. This impermissibly narrows the sphere of privacy afforded by the Privacy of Communication Clause. It opens a backdoor for government to pry into their private lives as if it obtained access to their phones, computers, letters, books, and other papers and effects. Since Section 12 does not require a court warrant for government to undertake such surveillance and data collection, law enforcement agents can access these information anytime they want to, for whatever purpose they may deem as amounting to “due cause.”

The erosion of the right to privacy of communication that Section 12 sanctions is pernicious because the telephone and Internet are indispensable tools for communication and research in this millennium. People use the telephone and go online to perform tasks, run businesses, close transactions, read the news, search for information, communicate with friends, relatives and business contacts, and in general go about their daily lives in the most efficient and convenient manner. Section 12 forces individuals to make the difficult choice of preserving their communicative privacy but reverting to non-electronic media, on the one hand, or availing of electronic media while surrendering their privacy, on the other hand. These choices are inconsistent with the Constitution’s guarantee to privacy of communication.

Section 12 of RA 10175 not a “law”
Within the Contemplation of the
Exception Clause in Section 3(1),
Article III of the 1987 Constitution

Undoubtedly, the protection afforded by the Constitution under the Privacy of Communication Clause is not absolute. It exempts from the guarantee intrusions “upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.” Does Section 12 of RA 10175 constitute a “law” within the contemplation of the Privacy of Communication Clause?

When the members of the 1971 Constitutional Convention deliberated on Article III, Section 4(1) of the 1973 Constitution, the counterpart provision of Article III, Section 3(1) of the 1987 Constitution, the phrase “public safety or order” was understood by the convention members to encompass “the security of human lives, liberty and property against the activities of invaders, insurrectionists and rebels.”⁶⁷ This narrow understanding of the public safety exception to the guarantee of communicative privacy is consistent with Congress’ own interpretation of the same exception as provided in Article III, Section 1(5) of the 1935 Constitution. Thus, when Congress passed the Anti-Wiretapping Act⁶⁸ (enacted in 1965), it exempted from the ban on wiretapping “cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security” (Section 3). In these specific and limited cases where wiretapping has been allowed, a court warrant is required before the government can record the conversations of individuals.

Under RA 10175, the categories of crimes defined and penalized relate to (1) offenses against the confidentiality, integrity and availability of computer data and systems (Section 4[a]); (2) computer-related offenses (Section 4[b]); (3) content-related offenses (Section 4[c]); and (4) other offenses (Section 5). None of these categories of crimes are limited to public safety or public order interests (akin to the crimes exempted from the coverage of the Anti-Wiretapping Law). They relate to crimes committed in the cyberspace which have no stated public safety or even national security dimensions. Such fact takes Section 12 outside of the ambit of the Privacy of Communication Clause.

In any event, even assuming that Section 12 of RA 10175 is such a “law,” such “law” can never negate the constitutional requirement under the Search and Seizure Clause that when the intrusion into the privacy of communication and correspondence rises to the level of a search and seizure of personal effects, then a warrant issued by a judge becomes mandatory for such search and seizure. Fully cognizant of this fact, Congress, in enacting exceptions to the ban on wiretapping under the Anti-Wiretapping Act, made sure that law enforcement authorities obtain a warrant from a court based on probable cause to undertake wiretapping. Section 3 of the Anti-Wiretapping Act provides:chanRoblesVirtualawlibrary

Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding Sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. (Emphasis supplied)

Section 12 of RA 10175 More
Expansive than U.S. Federal Electronic
Surveillance Laws

Under U.S. federal law, authorities are required to obtain a court order to install “a pen register or trap and trace device” to record in real time or decode electronic communications.⁶⁹ Although initially referring to technology to record telephone numbers only, the term “pen register or trap and trace device” was enlarged by the Patriot Act to cover devices which record “dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications,” including Internet traffic data.⁷⁰ The court of competent jurisdiction may issue ex parte the order for the installation of the device “if [it] finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”⁷¹crallawlibrary

For electronic surveillance relating to foreign intelligence, U.S. federal law requires the government to obtain ex parte orders from the Foreign Intelligence Surveillance Court (FISC)⁷² upon showing that “the target of surveillance was a foreign power or an agent of a foreign power.”⁷³ Under an amendment introduced by the Patriot Act, the government was further authorized to obtain an ex parte order from the FISC for the release by third parties of “tangible things” such as books, papers, records, documents and other items “upon showing that the tangible things sought are relevant to an authorized investigation x x x to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”⁷⁴ The investigation is further subjected to administrative oversight by the Attorney General whose prior authorization to undertake such investigation is required.⁷⁵crallawlibrary

In contrast, Section 12 of RA 10175 authorizes law enforcement officials “to collect or record by technical or electronic means traffic data in real-time” if, in their judgment, such is for “due cause.”⁷⁶ Unlike in the Patriot Act, there is no need for a court order to collect traffic data. RA 10175 does not provide a definition of “due cause” although the OSG suggests that it is synonymous with “just reason or motive” or “adherence to a lawful procedure.”⁷⁷ The presence of “due cause” is to be determined solely by law enforcers.

In comparing the U.S. and Philippine law, what is immediately apparent is that the U.S. federal law requires judicial oversight for bulk electronic data collection and analysis while Philippine law leaves such process to the exclusive discretion of law enforcement officials. The absence of judicial participation under Philippine law precludes independent neutral

assessment by a court on the necessity of the surveillance and collection of data.⁷⁸ Because the executive’s assessment of such necessity is unilateral, Philippine intelligence officials can give the standard of “due cause” in Section 12 of RA 10175 as broad or as narrow an interpretation as they want.

The world by now is aware of the fallout from the spying scandal in the United States arising from the disclosure by one of its intelligence computer specialists that the U.S. government embarked on bulk data mining, in real time or otherwise, of Internet and telephone communication not only of its citizens but also of foreigners, including heads of governments of 35 countries.⁷⁹ The District Court’s observation in Klayman on the bulk data collection and mining undertaken by the NSA of telephone traffic data is instructive:chanRoblesVirtualawlibrary

I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgment of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.⁸⁰crallawlibrary

Equally important was that court’s finding on the efficacy of the bulk surveillance program of the U.S. government: “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”⁸¹crallawlibrary

To stem the ensuing backlash, legislative and executive leaders of the U.S. government committed to re-writing current legislation to curb the power of its surveillance agencies.⁸² The pressure for reforms increased with the recent release of an unprecedented statement by the eight largest Internet service providers in America calling on the U.S. government to “limit surveillance to specific, known users for lawful purposes, and x x x not undertake bulk data collection of Internet communications.”⁸³ Along the same lines, the Panel’s Report recommended, among others that, “the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future queries and data-mining for foreign intelligence purposes” ⁸⁴ as such poses a threat to privacy rights, individual liberty and public trust. The Panel’s Report elaborated:chanRoblesVirtualawlibrary

Because international terrorists inevitably leave footprints when they recruit, train, finance, and plan their operations, government acquisition and analysis of such personal information might provide useful clues about their transactions, movements, behavior, identities and plans. It might, in other words, help the government find the proverbial needles in the haystack. But because such information overwhelmingly concerns the behavior of ordinary, law-abiding individuals, there is a substantial risk of serious invasions of privacy.

As a report of the National Academy of Sciences (NAS) has observed, the mass collection of such personal information by the government would raise serious “concerns about the misuse and abuse of data, about the accuracy of the data and the manner in which the data are aggregated, and about the possibility that the government could, through its collection and analysis of data, inappropriately influence individuals’ conduct.”

According to the NAS report, “data and communication streams” are ubiquitous:chanRoblesVirtualawlibrary

[They] concern financial transactions, medical records, travel, communications, legal proceedings, consumer preferences, Web searches, and, increasingly, behavior and biological information. This is the essence of the information age — x x x everyone leaves personal digital tracks in these systems whenever he or she makes a purchase, takes a trip, uses a bank account, makes a phone call, walks past a security camera, obtains a prescription, sends or receives a package, files income tax forms, applies for a loan, e-mails a friend, sends a fax, rents a video, or engages in just about any other activity x x x x Gathering and analyzing [such data] can play major roles in the prevention, detection, and mitigation of terrorist attacks x x x x [But even] under the pressures of threats as serious as terrorism, the privacy rights and civil liberties that are cherished core values of our nation must not be destroyed x x x x One x x x concern is that law-abiding citizens who come to believe that their behavior is watched too closely by government agencies x x x may be unduly inhibited from participating in the democratic process, may be inhibited from contributing fully to the social and cultural life of their communities, and may even alter their purely private and perfectly legal behavior for fear that discovery of intimate details of their lives will be revealed and used against them in some manner.⁸⁵ (Emphasis supplied)redjgc

In lieu of data collection in bulk and data mining, the Panel’s Report recommended that such data be held by “private providers or by a private third party,”⁸⁶ accessible by American intelligence officials only by order of the FISC, upon showing that the requested information is “relevant to an authorized investigation intended to protect ‘against international terrorism or clandestine intelligence activities,’”⁸⁷ a more stringent standard than what is required under current federal law.

Finding merit in the core of the Panel’s Report’s proposal, President Obama ordered a two-step “transition away from the existing program” of telephone data collection in bulk and analysis, first, by increasing the threshold for querying the data and requiring judicial oversight to do so (save in emergency cases), and second, by relinquishing government’s possession of the bulk data:chanRoblesVirtualawlibrary

[I]’ve ordered that the transition away from the existing program will proceed in two steps.

Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization, instead of the current three, and I have directed the attorney general to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding or in the case of a true emergency.

Next, step two: I have instructed the intelligence community and the attorney general to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself. x x x.⁸⁸ (Emphasis supplied)

The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of communication caused by the grant of broad powers to the state to place anyone under electronic surveillance without or with minimal judicial oversight. If judicial intervention under U.S. law for real time surveillance of electronic communication did not rein in U.S. spies, the total absence of such intervention under Section 12 of RA 10175 is a blanket legislative authorization for data surveillance and collection in bulk to take place in this country.

Section 12 Tilts the Balance in Favor
of Broad State Surveillance Over
Privacy of Communications Data

As large parts of the world become increasingly connected, with communications carried on wired or wirelessly and stored electronically, the need to balance the state’s national security and public safety interest, on the one hand, with the protection of the privacy of communication, on the other hand, has never been more acute. Allowing the state to undertake extrajudicial, unilateral surveillance and collection of electronic data in bulk which, in the aggregate, is just as revealing of a person’s mind as the content of his communication, impermissibly tilts the balance in favor of state surveillance at the expense of communicative and expressive privacy. More than an imbalance in the treatment of equally important societal values, however, such government policy gives rise to fundamental questions on the place of human dignity in civilized society. This concern was succinctly articulated by writers from all over the world protesting the policy of mass surveillance and collection of data in bulk:chanRoblesVirtualawlibrary

With a few clicks of the mouse, the state can access your mobile device, your email, your social networking and Internet searches. It can follow your political leanings and activities and, in partnership with Internet corporations, it collects and stores your data.

The basic pillar of democracy is the inviolable integrity of the individual. x x x [A]ll humans have a right to remain unobserved and unmolested. x x x.

A person under surveillance is no longer free; a society under surveillance is no longer a democracy. [O]ur democratic rights must apply in virtual as in real space.⁸⁹crallawlibrary

The Government must maintain fidelity to the 1987 Constitution’s guarantee against warrantless searches and seizures, as well as the guarantee of privacy of communication and correspondence. Thus, the Government, consistent with its national security needs, may enact legislation allowing surveillance and data collection in bulk only if based on individualized suspicion and subject to meaningful judicial oversight.

Section 19 of RA 10175 Violative of the
Free Speech, Free Press, Privacy of Communication
and Search and Seizure Clauses

The OSG concedes the unconstitutionality of Section 19 which authorizes the Department of Justice (DOJ) to “issue an order to restrict or block access” to computer data, that is, “any representation of facts, information, or concepts in a form suitable for processing in a computer system,”⁹⁰ whenever the DOJ finds such data prima facie violative of RA 10175. The OSG’s stance on this “take down” clause is unavoidable. Section 19 allows the government to search without warrant the content of private electronic data and administratively censor all categories of speech. Although censorship or prior restraint is permitted on speech which is pornographic, commercially misleading or dangerous to national security,⁹¹ only pornographic speech is covered by RA 10175 (under Section 4(c)(2) on online child pornography). Moreover, a court order is required to censor or effect prior restraint on protected speech.⁹² By allowing the government to electronically search without warrant and administratively censor all categories of speech, specifically speech which is non-pornographic, not commercially misleading and not a danger to national security, which cannot be subjected to censorship or prior restraint, Section 19 is unquestionably repugnant to the guarantees of free speech, free expression and free press and the rights to privacy of communication and against unreasonable searches and seizures. Indeed, as a system of prior restraint on all categories of speech, Section 19 is glaringly unconstitutional.

ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL Article 354 of the Revised Penal Code, insofar as it applies to public officers and public figures, and the following provisions of Republic Act No. 10175, namely: Section 4(c)(1), Section 4(c)(3), Section 7, Section 12, and Section 19, for being violative of Section 2, Section 3(1) Section 4, and Section 21, Article III of the Constitution.

Endnotes:

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¹Transcript of President Obama’s Jan. 17 Speech on NSA Reforms, THE WASHINGTON POST, 17 January 2014, http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html.

² On 1 January 1932.

³ Article III, Section 1(8) (“No law shall be passed abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and petition the Government for redress of grievances.”). This is substantially reiterated in Article III, Section 9 of the 1973 Constitution and Article III, Section 4 of the 1987 Constitution.

⁴ Act No. 277.

⁵ 376 U.S. 254 (1964) (involving a libel complaint for damages filed by the Montgomery, Alabama police commissioner against the New York Times Company and other individuals for a paid political advertisement published in the New York Times, criticizing police conduct during a series of protests staged by civil rights activists at the height of the campaign for racial equality in the American South in the 1960s).

⁶ Also described as “an escalati[on] of the plaintiff’s burden of proof to an almost impossible level.” Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 771 (1985) (White, J., concurring).

⁷ Supra note 5 at 279-280.

⁸ Supra note 5 at 269 quoting Roth v. United States, 354 U.S. 476, 484 (1957).

⁹ Supra note 5 at 271-272 citing N. A. A. C. P. v. Button, 371 U.S. 415, 433 (1963).

¹⁰Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).

¹¹Lopez v. Court of Appeals, 145 Phil. 219 (1970).

¹²Borjal v. CA, 361 Phil. 1 (1999); Baguio Midland Courier v. CA, 486 Phil. 223 (2004); Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, 15 May 2009, 588 SCRA 1.

¹³Flor v. People, 494 Phil. 439 (2005); Guingguing v. CA, 508 Phil. 193 (2005); Vasquez v. CA, 373 Phil. 238 (1999).

¹⁴Babst v. National Intelligence Board, 217 Phil. 302, 331-332 (1984) (internal citations omitted).

¹⁵ Justice Enrique Fernando consistently espoused the theory that U.S. v. Bustos, 37 Phil. 731 (1918), preceded New York Times by over three decades (Mercado v. CFI of Rizal, 201 Phil. 565 ¹⁹⁸²; Philippine Commercial and Industrial Bank v. Philnabank Employees Association, 192 Phil. 581 ¹⁹⁸¹). The OSG does one better than Justice Fernando by claiming that a much earlier case, U.S. v. Sedano, 14 Phil. 338 (1909), presaged New York Times (OSG Memorandum, pp. 62-63).

¹⁶ Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. (Emphasis supplied)

¹⁷ Art. 361. Proof of the truth. — x x x x

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. (Emphasis supplied)

¹⁸ OSG Memorandum, pp. 56-66, citing Snyder v. Ware, 397 U.S. 589 (1970).

¹⁹ Decision, p. 15.

²⁰Marbury v. Madison, 5 U.S. 137, 180 (1803).

²¹ Id. at 177.

²² The obligatory nature of judicial power is textualized under the 1987 Constitution. Section 1, Article VIII provides: “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Emphasis supplied)

²³ Memorandum (G.R. No. 203378), p. 19.

²⁴ Memorandum (G.R. No. 203359), p. 58.

²⁵ OSG Memorandum, p. 43.cralawred

²⁶ Id. at 44-45.

²⁷ Decision, p. 11.

²⁸Osmeña v. COMELEC, 351 Phil. 692 (1998).

²⁹ Id. at 44.

³⁰ Section 3(c).

³¹ For the same reason, Section 4(c)(1) is unconstitutionally overbroad, sweeping in “too much speech” including the protected indecent but non-obscene type. G. GUNTHER AND K. SULLIVAN, CONSTITUTIONAL LAW 1287 (14^th ed.).

³²Miller v. California, 413 U.S. 15 (1973), cited with approval in Soriano v. Laguardia, G.R. No. 164785, 15 March 2010, 615 SCRA 254, (Carpio, J., dissenting); Fernando v. Court of Appeals, 539 Phil. 407 (2006).

³³Fernando v. Court of Appeals, supra note 32.

³⁴ G.R. No. 164785, 29 April 2009, 587 SCRA 79.

³⁵ 539 Phil. 407 (2006).

³⁶ 258-A Phil. 134 (1989).

³⁷ G.R. No. 164785, 15 March 2010, 615 SCRA 254, 270-271 (Resolution).

³⁸ Decision, p. 13.

³⁹ The protected nature of truthful and non-misleading commercial speech was adverted to in Philippine jurisprudence in Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health Duque III, 562 Phil. 386, 448-451 (Puno, C.J., concurring).

⁴⁰ OSG Consolidated Comment, pp. 109-110, citing People v. Sandoval, G.R. Nos. 95353-54, 7 March 1996, 254 SCRA 436.

⁴¹Vasquez v. Court of Appeals, 373 Phil. 238 (1999).

⁴²Prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

⁴³ OSG Consolidated Comment, p. 77.

⁴⁴Malaya (http://www.malaya.com.ph/) and Abante (http://www.abante.com.ph); Manila Standard Today (manilastandardtoday.com); and The News Today (www.thenewstoday.info), respectively.

⁴⁵ Petition (G.R. No. 203378), p. 37.

⁴⁶ “Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person: (a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography[.]”

⁴⁷Speiser v. Randall, 357 U.S. 513, 526 (1958).

⁴⁸ Defined in the law (Section 3[g]) as “refer[ing] to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.”

⁴⁹Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189.

⁵⁰In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505 Phil. 298 (2005).

⁵¹People v. Canton, 442 Phil. 743 (2002); People v. Johnson, 401 Phil. 734 (2000). See also United States v. Arnold, 523 F.3d 941 (9^th Cir. Cal., 2008), certiorari denied by the U.S. Supreme Court in Arnold v. United States, 129 S. Ct. 1312 (2009) (involving a warrantless search of a laptop of a passenger who had arrived from overseas travel).

⁵² Christopher Slobogin, The Search and Seizure of Computers and Electronic Evidence: Transaction Surveillance by the Government, 75 Miss. L.J. 139, 178. (Hereinafter Slobogin, Transaction Surveillance).

⁵³ Composed of Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein, and Peter Swire.

⁵⁴ Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies, 12 December 2013, pp. 116-117 (internal citations omitted), http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf (last visited on 29 December 2013).

⁵⁵ Commercially available programs are collectively referred to as “snoopware” which “allows its buyer to track the target well beyond a single website; it accumulates the addresses of all the Internet locations the target visits, as well as the recipient of the target’s emails.” Slobogin, Transaction Surveillance at 146. The government surveillance agencies tend to develop their own version of such programs.

⁵⁶ Id. at 153.

⁵⁷ See, e.g., Florida v. Riley, 488 U.S. 445 (1989) and California v. Ciraolo, 476 U.S. 207 (1986) (uniformly holding that aerial surveillance of private homes and surrounding areas is not a “search” under the Fourth Amendment).

⁵⁸ This standard, crafted by Mr. Justice Harlan in his separate opinion in Katz v. US, 389 U.S. 347 (1967), has been adopted by this Court to settle claims of unreasonable search (see, e.g., Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People v. Johnson, supra note 51).

⁵⁹ 442 U.S. 735 (1979). The earlier ruling in United States v. Miller, 425 U.S. 435 (1976), found no legitimate privacy expectation over the contents of checks and bank deposit slips. Unlike in the United States, however, Philippine law treats bank deposits “as of an absolutely confidential nature” (For deposits in local currency, see Section 2 of Republic Act No. 1405, as amended. For deposits in foreign currency, see Section 8 of Republic Act No. 6426, as amended).

⁶⁰ Id. at 744.

⁶¹ Constitution (1935), Article III, Section 1(5) (“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order require otherwise.”); Constitution (1973), Article III, Section 4(1) (“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety and order require otherwise.”); Constitution (1987), Article III, Section 3(1) (“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.”). The inclusion of the phrase “as prescribed by law” in the 1987 Constitution indicates heightened protection to the right, removing the executive exemption to the guarantee (on the ground of public safety or order).

⁶² The protection afforded by Section 3(1), Article III of the Constitution to the privacy of communication and correspondence is supplemented by the Rule of the Writ of Habeas Data, effective 2 February 2008, giving judicial relief to “any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the x x x correspondence of the aggrieved party” (Section 1). If the writ lies, the court hearing the application for the writ “shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information x x x.” (Section 16).

⁶³Klayman v. Obama, 2013 U.S. Dist. LEXIS 176928.

⁶⁴ Id. at 84-85 (internal citations omitted).

⁶⁵ Panel’s Report at 744.

⁶⁶ Id. at 111-112.

⁶⁷ I J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 135, citing 1971 Constitutional Convention, Session of 25 November 1972.

⁶⁸ Republic Act No. 4200.

⁶⁹ Under the Electronic Communications Privacy Act, codified in 18 USC § 3121(a) which provides: “In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).” (Emphasis supplied)

⁷⁰ 18 USC § 3121 (c) which provides: “Limitation.— A government agency authorized to install and use a pen register or trap and trace device under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications.” (Emphasis supplied)

⁷¹ 18 USC § 3123(a) (2) which provides: “State investigative or law enforcement officer.— Upon an application made under section 3122 (a)(2), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” (Emphasis supplied)

⁷² Composed of eleven district court judges appointed by the Chief Justice of the U.S. Supreme Court.

⁷³ Foreign Intelligence Surveillance Act, codified at 50 USC § 1804(a)(3), 1805(a)(2).

⁷⁴ 50 USC § 1861(b)(2)(A).

⁷⁵ 50 USC § 1861(a)(2)(A).

⁷⁶ Under the first paragraph of Section 12 which provides: “Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.” (Emphasis supplied)

⁷⁷ Decision, p. 33.

⁷⁸ While the U.S. law has been criticized as turning courts into “rubber stamps” which are obliged to issue the order for the installation of recording devices once the applicant law enforcement officer certifies that the information to be recorded is relevant to an ongoing criminal investigation (see Slobogin, Transaction Investigation at 154-155), the objection relates to the degree of judicial participation, not to the law’s structure.

⁷⁹ Costas Pitas, Report: US Monitored the Phone Calls of 35 World Leaders, REUTERS http://worldnews.nbcnews.com/_news/2013/10/24/21124561-report-us-monitored-the-phone-calls-of-35-world-leaders (last visited on 16 December 2013).

⁸⁰ Supra note 63 at 114-115 (internal citations omitted).

⁸¹ Supra note 63 at 109 (emphasis supplied).

⁸² Dan Roberts, Patriot Act Author Prepares Bill to Put NSA Bulk Collection ‘Out of Business,’ THE GUARDIAN, 10 October 2013 http://www.theguardian.com/world/2013/oct/10/nsa-surveillance-patriot-act-author-bill; Andrew Raferty, Obama: NSA Reforms Will Give Americans’More Confidence' in Surveillance Programs, NBC NEWS, http://nbcpolitics.nbcnews.com/_news/2013/12/05/21776882-obama-nsa-reforms-will-give-americans-more-confidence-in-surveillance-programs (last visited on 16 December 2013).

⁸³ “Global Government Surveillance Reform,” http://reformgovernmentsurveillance.com/ (last visited on 16 December 2013).

⁸⁴ Panel’s Report at 27.

⁸⁵ Id. at 109-111 (internal citations omitted).

⁸⁶ Id. at 25.

⁸⁷ Id. at 26.

⁸⁸ Supra note 1.

⁸⁹World Writers Demand UN Charter to Curb State Surveillance, AGENCE FRANCE-PRESSE, 10 December 2013, http://www.globalpost.com/dispatch/news/afp/131210/world-writers-demand-un-charter-curb-state-surveillance.

⁹⁰ Section 3(e), RA 10175.

⁹¹Chavez v. Gonzales, 569 Phil. 155, 237 (2008), Carpio, J, concurring.

⁹²Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529, 575-578 (1996) (Mendoza, J., Separate Opinion)

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SEPARATE CONCURRING OPINION

BRION, J.:

A. Concurrences & Dissents

Technology and its continued rapid development in the 21^st century have been pushing outward the boundaries of the law, compelling new responses and the redefinition of fundamental rights from their original formulation; enlarging the need for, and the means of, governmental regulation; and more importantly, sharpening the collision between the individual’s exercise of fundamental rights and governmental need for intervention.

In this kind of collision, the Court - as constitutionally designed - finds itself in the middle, balancing its duty to protect individuals’ exercise of fundamental rights, with the State’s intervention (through regulation and implementation) in the performance of its duty to protect society. It is from this vantage point that the Court, through the ponencia, closely examined the Cybercrime prevention Act (Cybercrime Law) and the validity of the various provisions the petitioners challenged.

I write this Separate Concurring Opinion to generally support the ponencia, although my vote may be qualified in some provisions or in dissent with respect to others. In line with the Court’s “per provision” approach and for ease of reference, I have tabulated my votes and have attached the tabulation and explanation as Annex “A” of this Separate Opinion.

This Opinion likewise fully explains my vote with a full discussion of my own reasons and qualifications in the areas where I feel a full discussion is called for. I am taking this approach in Section 12 of the Cybercrime Law in my vote for its unconstitutionality. My qualifications come, among others, in terms of my alternative view that would balance cybercrime law enforcement with the protection of our citizenry’s right to privacy.

I concur with the ponencia’s finding that cyber-libel as defined in Section 4(c)(4) of the Cybercrime Law does not offend the Constitution. I do not agree, however, with the ponencia’s ultimate conclusion that the validity is “only with respect to the original author of the post” and that cyber-libel is unconstitutional “with respect to others who simply receive the post and react to it.”

I believe that the constitutional status of cyber-libel hinges, not on Section 4(c)(4), but on the provisions that add to and qualify libel in its application to Internet communications. For example, as the ponencia does, I find that Section 5¹ of the Cybercrime Law (which penalizes aiding, abetting or attempting to commit a cybercrime) is unconstitutional for the reasons fully explained below, and should not apply to cyber-libel.

I likewise agree with Chief Justice Sereno’s point on the unconstitutionality of applying Section 6 of the Cybercrime Law (which penalizes crimes committed through information communications technology) and impose on libel a penalty one degree higher.

Further, I join Justice Carpio’s call to declare Article 354 of the Revised Penal Code unconstitutional when applied to libellous statements committed against public officers and figures, and to nullify the application of Section 7 of the Cybercrime Law to cyber-libel.

On the other content-related offenses in the Cybercrime Law, I concur with the ponencia in upholding the constitutionality of Section 4(c)(1) on cybersex and Section 4(c)(2) on child pornography committed through computer systems, and in striking down as unconstitutional Section 4(c)(3) for violating the freedom of speech.

I also agree that Section 5² of the Cybercrime Law, in so far as it punishes aiding, abetting or attempting to commit online commercial solicitation, cyber-libel and online child pornography, violates the Constitution.

Lastly, I partially support the ponencia’s position that Section 19³ of the Cybercrime Law (which empowers the Secretary of the Department of Justice to restrict or block access to computer data found to be in violation of its provisions) is unconstitutional for violating the right to freedom of expression.

B. My Positions on Cyber-libel

B.1. The Core Meaning and Constitutionality of Section 4(c)(4)

Based on a facial examination of Section 4(c)(4) of the Cybercrime Law, I find no reason to declare cyber-libel or the application of Section 355 of the Revised Penal Code (that penalizes libel made in print and other forms of media, to Internet communications) unconstitutional.

Laws penalizing libel normally pit two competing values against each other - the fundamental right to freedom of speech on one hand, and the state interest’s to protect persons against the harmful conduct of others. The latter conduct pertains to scurrilous speech that damages the reputation of the person it addresses. Jurisprudence has long settled this apparent conflict by excluding libelous speech outside the ambit of the constitutional protection.⁴ Thus, the question of whether a libelous speech may be penalized by law - criminally or civilly - has already been answered by jurisprudence in the affirmative.

Article 355 of the Revised Penal Code penalizes “libel⁵ committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.” Section 4(c)(4) of the Cybercrime Law merely extends the application of Article 355 to “communications committed through a computer system, or any other similar means which may be devised in the future.” It does not, by itself, redefine libel or create a new crime - it merely adds a medium through which libel may be committed and penalized. Parenthetically, this medium - under the statutory construction principle of ejusdem generis - could already be included under Article 355 through the phrase “any similar means.”

Thus, I fully support the constitutionality of Section 4(c)(4) as it stands by itself; its intended effect is merely to erase any doubt that libel may be committed through Internet communications.⁶ However, my support stops there in light of the qualifications under the law’s succeeding provisions.

B.2. Sections 5, 6 & 7 of the Cybercrime Law

In the process of declaring internet defamatory statements within the reach of our libel law, the Cybercrime Law also makes the consequences of cyber-libel far graver than libelous speech in the real world. These consequences result from the application of other provisions in the Cybercrime Law that Congress, in the exercise of its policy-making power, chose to impose upon cybercrimes.

Thus, the law, through Section 5, opts to penalize the acts of aiding, abetting, and attempting to commit a cybercrime; increases the penalty for crimes committed by, through and with the use of information and communications technologies in Section 6; and clarifies that a prosecution under the Cybercrime Law does not ipso facto bar a prosecution under the Revised Penal Code and other special laws in Section 7.

In my view, the application of these provisions to cyber-libel unduly increases the prohibitive effect of libel law on online speech, and can have the effect of imposing self-censorship in the Internet and of curtailing an otherwise robust avenue for debate and discussion on public issues. In other words, Section 5, 6 and 7 should not apply to cyber-libel, as they open the door to application and overreach into matters other than libelous and can thus prevent protected speech from being uttered.

Neither do I believe that there is sufficient distinction between libelous speech committed online and speech uttered in the real, physical world to warrant increasing the prohibitive impact of penal law in cyberspace communications.

The rationale for penalizing defamatory statements is the same regardless of the medium used to communicate it. It springs from the state’s interest and duty to protect a person’s enjoyment of his private reputation.⁷ The law recognizes the value of private reputation and imposes upon him who attacks it - by slanderous words or libelous publications - the liability to fully compensate for the damages suffered by the wronged party.⁸crallawlibrary

I submit that this rationale did not change when libel was made to apply to Internet communications. Thus, cyber-libel should be considered as the State’s attempt to broaden the protection for a person’s private reputation, and its recognition that a reputation can be slandered through the Internet in the same way that it can be damaged in the real world.⁹crallawlibrary

A key characteristic of online speech is its potential to reach a wider number of people than speech uttered in the real world. The Internet empowers persons, both public and private, to reach a wider audience - a phenomenon some legal scholars pertain to as “cyber-reach.”¹⁰ Cyber-reach increases the number of people who would have knowledge of a defamatory statement - a post published by a person living in the Philippines, for instance, can reach millions of people living in the United States, and vice versa. It could thus be argued that an increase in the audience of a libelous statement made online justifies the inhibitive effect of Section 5, 6, and 7 on online speech.

I find this proposition to be flawed. Online speech has varying characteristics, depending on the platform of communications used in the Internet. It does not necessarily mean, for instance, that a libelous speech has reached the public or a wider audience just because it was communicated through the Internet. A libelous statement could have been published through an e-mail, or through a private online group, or through a public website - each with varying degrees in the number of people reached.

I also find it notable that the publicity element of libel in the Revised Penal Code does not take into consideration the amount of audience reached by the defamatory statement. For libel prosecution purposes, a defamatory statement is considered published when a third person, other than the speaker or the person defamed, is informed of it.¹¹ Libelous speech may be penalized when, for instance, it reaches a third person by mail,¹² or through a television program,¹³ or through a newspaper article published nationwide.¹⁴ All these defamatory imputations are punishable with the same penalty of prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos or both.¹⁵crallawlibrary

Penalizing libelous speech committed through the Internet with graver penalties and repercussions because it allegedly reaches a wider audience creates an unreasonable classification between communications made through the Internet and in the real, physical world, to the detriment of online speech. I find no basis to treat online speech and speech in the real world differently on account of the former’s cyber-reach because Article 355 of the Revised Penal Code does not treat libel committed through various forms of media differently on account of the varying numbers of people they reach.

In other words, since Article 355 of the Revised Penal Code does not distinguish among the means of communications by which libel is published, the Cybercrime Law, which merely adds a medium of communications by which libel may be committed, should also not distinguish and command a different treatment than libel in the real world.

Notably, the enumeration of media in Article 355 of the Revised Penal Code have for their common characteristic, not the audience a libelous statement reaches, but their permanent nature as a means of publication.¹⁶ Thus, cyber-libel’s addition of communications through the Internet in the enumeration of media by which libel may be committed is a recognition that it shares this common characteristic of the media enumerated in Article 355 of the RPC, and that its nature as a permanent means of publication injures private reputation in the same manner as the enumeration in Article 355 does.

Neither should the ease of publishing a libelous material in the Internet be a consideration in increasing the penalty for cyber-libel. The ease by which a libelous material may be published in the Internet, to me, is counterbalanced by the ease through which a defamed person may defend his reputation in the various platforms provided by the Internet - a means not normally given in other forms of media.

Thus, I agree with the ponencia that Section 5¹⁷ of the Cybercrime Law, which penalizes aiding, abetting, or attempting to commit any of the cybercrimes enumerated therein, is unconstitutional in so far as it applies to the crime of cyber-libel. As the ponente does, I believe that the provision, when applied to cyber-libel, is vague and can have a chilling effect on otherwise legitimately free speech in cyberspace.

I further agree with the Chief Justice’s argument that it would be constitutionally improper to apply the higher penalty that Section 6 imposes to libel.

Section 6¹⁸ qualifies the crimes under the Revised Penal Code and special laws when committed by, through and with the use of information and communications technologies, and considers ICT use as an aggravating circumstance that raises the appropriate penalties one degree higher. As Chief Justice Sereno points out, Section 6 not only considers ICT use to be a qualifying aggravating circumstance, but also has the following effects: first, it increases the accessory penalties of libel; second, it disqualifies the offender from availing of the privilege of probation; third, it increases the prescriptive period for the crime of libel from one year to fifteen years, and the prescriptive period for its penalty from ten years to fifteen years; and fourth, its impact cannot be offset by mitigating circumstances.

These effects, taken together, unduly burden the freedom of speech because the inhibiting effect of the crime of libel is magnified beyond what is necessary to prevent its commission.

I also agree with Justice Carpio that the application of Section 7 to cyberlibel should be declared unconstitutional. By adopting the definition of libel in the Revised Penal Code, Section 4(c)(4)’s definition of cyberlibel penalizes the same crime, except that it is committed through another medium enumerated in Article 355. Thus, Section 7 exposes a person accused of uttering a defamatory statement to multiple prosecutions under the Cybercrime Law and the Revised Penal Code for the same utterance. This creates a significant chill on online speech, because the gravity of the penalties involved could possibly compel Internet users towards self-censorship, and deter otherwise lawful speech.

B.3. Article 354 of the Revised Penal Code

Lastly, I join in Justice Carpio’s call for the Court to declare Article 354 of the Revised Penal Code as unconstitutional in so far as it applies to public officers and figures.

The petitions against the Cybercrime Law provide us with the opportunity to clarify, once and for all, the prevailing doctrine on libel committed against public officers and figures. The possibility of applying the presumed malice rule against this kind of libel hangs like a Damocles sword against the actual malice rule that jurisprudence established for the prosecution of libel committed against public officers and figures.

The presumed malice rule embodied in Article 354¹⁹ of the Revised Penal Code provides a presumption of malice in every defamatory imputation, except under certain instances. Under this rule, the defamatory statement would still be considered as malicious even if it were true, unless the accused proves that it was made with good and justifiable intentions.

Recognizing the importance of freedom of speech in a democratic republic, our jurisprudence has carved out another exception to Article 354 of the Revised Penal Code. Through cases such as Guingguing v. Court of Appeals²⁰ and Borjal v. Court of Appeals,²¹ the Court has applied the actual malice rule in libel committed against public officers and figures. This means that malice in fact is necessary for libel committed against public officers and figures to prosper, i.e., it must be proven that the offender made the defamatory statement with the knowledge that it is false or with reckless disregard of whether it is false or not. As the Court held in Guinguing, adopting the words in New York Times v. Sullivan:²² “[w]e have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

I agree with Justice Carpio’s point regarding the necessity of a concrete declaration from the Court regarding Article 354’s unconstitutional application to libelous speech against public officers and officials. To neglect our duty to clarify what the law would amount to and leave a gap in the implementation of our laws on libel, in the words of Justice Carpio, would “leave[s] fundamental rights of citizens to freedom of expression to the mercy of the Executive’s prosecutorial arm whose decision to press charges depends on its own interpretation of the penal provision’s adherence to the Bill of Rights.”

This need for a clear signal from the Court has become even more pronounced given the current nature of the Internet - now a vibrant avenue for dialogue and discussion on matters involving governance and other public issues, with the capacity to allow ordinary citizens to voice out their concerns to both the government and to the public in general.

B.4. Summation of Constitutionality of Section 4(c)(4)

With the four provisions - i.e., Section 5, Section 6 and Section 7 of the Cybercrime Law and Article 354 of the Revised Penal Code, removed from cyber-libel, Section 4(c)(4) would present a proper balance between encouraging freedom of expression and preventing the damage to the reputation of members of society. Conversely, the presence of either one of these three provisions could tilt this delicate balance against freedom of expression, and unduly burden the exercise of our fundamental right. Thus, hand in hand with the recognition of the constitutionality of Section 4(c)(4) of the Cybercrime Law under a facial challenge, the four mentioned provisions should likewise be struck down as unconstitutional.

C. My Positions on Section 12 of the Cybercrime Law

In agreeing with the ponencia’s conclusion regarding the unconstitutionality of Section 12, I begin by emphasizing the point that no all-encompassing constitutional right to privacy exists in traffic data. I stress the need to be sensitive and discerning in appreciating traffic data as we cannot gloss over the distinctions between content data and traffic data, if only because of the importance of these distinctions for law enforcement purposes.

The right to privacy over the content of internet communications is a given, as recognized in many jurisdictions.²³Traffic data should likewise be recognized for what they are - information necessary for computer and communication use and, in this sense, are practically open and freely-disclosed information that law enforcers may examine.

But beyond all these are information generated from raw traffic data on people’s activities in the Internet, that are collected through real-time extended surveillance and which may be as private and confidential as content data. To my mind, the grant to law enforcement agents of the authority to access these data require a very close and discerning examination to determine the grant’s constitutionality.

I justify my position on the unconstitutionality of Section 12 as it patently lacks proper standards guaranteeing the protection of data that should be constitutionally-protected. In more concrete terms, Section 12 should not be allowed - based solely on law enforcement agents’ finding of ‘due cause’ - to serve as authority for the warrantless real-time collection and recording of traffic data.

Lastly, I clarify that the nullification of Section 12 does not absolutely bar the real-time collection of traffic data, as such collection can be undertaken upon proper application for a judicial warrant. Neither should my recommended approach in finding the unconstitutionality of Section 12 prevent Congress, by subsequent legislation, from authorizing the conduct of warrantless real-time collection of traffic data provided that proper constitutional safeguards are in place for the protection of affected constitutional rights.

C.1 The constitutional right to privacy in Internet communications data

The right to privacy essentially means the right to be let alone and to be free from unwarranted government intrusion.²⁴ To determine whether a violation of this right exists, a first requirement is to ascertain the existence of a reasonable expectation of privacy that the government violates. The reasonable expectation of privacy can be made through a two-pronged test that asks: (1) whether, by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. Customs, community norms, and practices may, therefore, limit or extend an individual’s ”reasonable expectation of privacy.”²⁵ The awareness of the need for privacy or confidentiality is the critical point that should dictate whether privacy rights exist.

The finding that privacy rights exist, however, is not a recognition that the data shall be considered absolutely private;²⁶ the recognition must yield when faced with a compelling and fully demonstrated state interest that must be given primacy. In this exceptional situation, the balance undeniably tilts in favor of government access or intrusion into private information. Even then, however, established jurisprudence still requires safeguards to protect privacy rights: the law or rule allowing access or intrusion must be so narrowly drawn to ensure that other constitutionally-protected rights outside the ambit of the overriding state interests are fully protected.²⁷crallawlibrary

The majority of the Court in Ople v. Torres,²⁸ for instance, found the repercussions and possibilities of using biometrics and computer technologies in establishing a National Computerized Identification Reference System to be too invasive to allow Section 4 of Administrative No. 308 (the assailed regulation which established the ID system) to pass constitutional muster. According to the majority, the lack of sufficient standards in Section 4 renders it vague and overly broad, and in so doing, was not narrowly fitted to accomplish the state’s objective. Thus, it was unconstitutional for failing to ensure the protection of other constitutionally-protected privacy rights.

Other governmental actions that had been declared to be constitutionally infirm for failing the compelling state interest test discussed above include the city ordinance barring the operation of motels and inns within the Ermita-Malate area in City of Manila v. Laguio Jr.,²⁹ and the city ordinance prohibiting motels and inns from offering short-time admission and pro-rated or “wash up” rates in White Light Corporation v. City of Manila.³⁰ In both cases, the Court found that the city ordinance overreached and violated the right to privacy of motel patrons, both single and married.

C.2 Traffic and Content Data 

The Internet serves as a useful technology as it facilitates communication between people through the application programs they use. More precisely, the Internet is “an electronic communications network that connects computer networks and organizational computer facilities around the world.”³¹ These connections result in various activities online, such as simple e-mails between people, watching and downloading of videos, making and taking phone calls, and other similar activities, done through the medium of various devices such as computers, laptops, tablets and mobile phones.³²crallawlibrary

Traffic data refer to the computer data generated by computers in communicating to each other to indicate a communication’s origin, destination, route, time, date, size, duration or type of underlying service.³³ These data should be distinguished from content data which contain the body or message of the communications sent.³⁴ Traffic data do not usually indicate on their face the actual identity of the sender of the communication; the content data, on the other hand, usually contain the identity of sender and recipient and the actual communication between them.

It must also be appreciated that as the technology now exists, data (both traffic and content) are usually sent through the Internet through a packet-switching network. The system first breaks down the materials sent into tiny packets of data which then pass through different networks until they reach their destination where they are reassembled into the original data sent.

These tiny packets of data generally contain a header and a payload. The header contains the overhead information about the packet, the service and other transmission-related information. It includes the source and destination of the data, the sequence number of the packets, and the type of service, among others. The payload, on the other hand, contains the actual data carried by the packet.³⁵ Traffic data may be monitored, recorded and collected from the headers of packets.³⁶crallawlibrary

I hold the view, based on the above distinctions and as the ponencia did, that no reasonable expectation of privacy exists in traffic data as they appear in the header, as these are data generated in the course of communications between or among the participating computers or devices and intermediary networks. The absence of any expectation is based on the reality that the traffic data: are open as they pass through different unknown networks;³⁷ cannot be expected to be private as they transit on the way to their intended destination; and are necessarily identified as they pass from network to network. In contrast, the content data they contain remain closed and undisclosed, and do not have to be opened at all in order to be transmitted. The unauthorized opening of the content data is in fact a crime penalized under the Cybercrime Law.³⁸crallawlibrary

For a clearer analogy, traffic data can be likened to the address that a person sending an ordinary mail would provide in the mailing envelope, while the size of the communication may be compared to the size of the envelope or package mailed through the post office. There can be no reasonable expectation of the privacy in the address appearing in the envelope and in the size of the package as it is sent through a public network of intermediary post offices; they must necessarily be read in these intermediary locations for the mail to reach its destination.

A closer comparison can be drawn from the number dialed in using a telephone, a situation that the US Supreme Court had the opportunity to pass upon in Smith v. Maryland³⁹ when it considered the constitutionality of the Pen Register Act.⁴⁰ The US Court held that the Act does not violate the Fourth Amendment (the right to privacy) because no search is involved; there could be no reasonable expectation of privacy in the telephone numbers that a person dials. All telephone users realize that they must “convey” phone numbers to the telephone company whose switching equipment serve as medium for the completion of telephone calls.

As in the case of the regular mail and the use of numbers in communicating by telephone, privacy cannot be reasonably expected from traffic data per se, because their basic nature - data generated in the course of sending communications from a computer as communications pass through a public network of intermediate computers.

To complete the comparison between transfer data and content data, an individual sending an e-mail through the Internet would expect at least the same level of privacy in his email’s content as that enjoyed by the mail sent through the post office or in what is said during a telephone conversation. Expectations regarding the confidentiality of emails may in fact be higher since their actual recipients are not identified by their actual names but by their email addresses, in contrast with regular mails where the addresses in the envelopes identify the actual intended recipients and are open to the intermediary post offices through which they pass.

At the same level of privacy are the information that an Internet subscriber furnishes the Internet provider. These are also private data that current data privacy laws⁴¹ require to be accurate under the guarantee that the provider would keep them secure, protected, and for use only for the purpose for which they have been collected.

For instance, a customer buying goods from a website used as a medium for purchase or exchange, can expect that the personal information he/she provides the website would only be used for facilitating the sales transaction.⁴² The service provider needs the customer’s consent before it can disclose the provided information to others; otherwise, criminal and civil liability can result.⁴³ This should be a reminder to service providers and their staff who sell telephone numbers and addresses to commercial companies for their advertising mailing lists.

Notably, social networking websites allow its subscribers to determine who would view the information the subscribers provide, i.e., whether the information may be viewed by the public in general, or by a particular group of persons, or only by the subscriber.⁴⁴ Like the contents of Internet communications, the user and the public in general expect these information to be private and confidential.

In the context of the present case where the right to privacy is pitted against government intrusion made in the name of public interest, the intrinsic nature of traffic data should be fully understood and appreciated because a miscalibration may carry profound impact on one or the other.

In concrete terms, casting a net of protection wider than what is necessary to protect the right to privacy in the Internet can unduly hinder law enforcement efforts in combating cybercrime. Raw traffic data raise no expectation of privacy and should not be beyond the reach of law enforcers. At the opposite end, constitutionally allowing the unregulated inspection of Section 12 may unwittingly allow government access or intrusion into data greater than what the public recognizes or would allow, resulting in the violation of privacy rights.

A miscalibration may immediately affect congressional action addressing the balancing between the privacy rights of individuals and investigative police action. The recognition of the right to privacy over raw traffic data may curtail congressional action by practically requiring Congress to increase the required governmental interest not only for the real-time surveillance and collection of traffic data, but also for simple police investigative work. The effect would of course be most felt at the level of field law enforcement where officers would be required to secure a higher level of compelling governmental interest simply to look at raw traffic data even on a non-surveillance situation. Using the above email analogy, it may amount to requiring probable cause to authorize law enforcement to look at an address in a mailing envelope coursed through the public post office.

Not to be forgotten is the reality that information and communication technology - particularly on the transmission, monitoring and encryption of data - is continuously evolving with no foreseeable end in sight. In the words of Justice Scalia in Kyllo v. United States,⁴⁵ a case pitting the right to privacy with the law enforcement’s use of thermal imaging devices: “the rule we adopt must take account of more sophisticated systems that are already in use or in development.”⁴⁶crallawlibrary

This Court, made aware of this reality, must similarly proceed with caution in exercising its duty to examine whether a law involving the regulation of computers and cyber communications transgresses the Constitution. If we must err, we should do so in favor of slow and carefully calibrated steps, keeping in mind the possible and foreseeable impact of our decisions on future technology scenarios and on our jurisprudence. After all, our constitutionally-designed role is merely to interpret policy as expressed in the law and rules, not to create policy.

C.3 Data collected from Online Activities - the midway point between traffic data and content data.

While traffic data can practically be considered as disclosed (and consequently, open and non-confidential) data, they can - once collected and recorded over a period of time, or when used with other technologies - reveal information that the sender and even the general public expect to be private and confidential.

This potential use of raw traffic data serves as the limit for the analogy between traffic data and the addresses found in envelopes of regular mails. Mailed letters exist in the physical world and, unless coursed through one central post office, can hardly be monitored for a recognizable pattern of activities that can yield significant data about the writer or the recipient.

In contrast, the Internet allows the real-time sending and receiving of information at any given time, to multiple recipients who may be sending and receiving their own information as well. This capability and the large amount of traffic that ensues in real time open wide windows of opportunity for analysis of the ensuing traffic for trends and patterns that reveal information beyond the originally collected and recorded raw traffic data. For example, the analysis may provide leads or even specifically disclose the actual geographical location of the sender or recipient of the information, his online activity, the websites he is currently browsing, and even possibly the content of the information itself.

It is at this point that the originally raw traffic data mass cross over and partake of the nature of content data that both the individual and the public expect to be private. Evidently, privacy interests arise, not from the raw data themselves, but from the resulting conclusions that their collection and recording yield. Thus, violation of any existing constitutional right starts at this point. From the point of view of effective constitutional protection, the trigger is not at the point of the private information end result, but at the point of real-time collection and recording of data that, over time and with analysis, yield private and confidential end result. In other words, it is at the earliest point that safeguards must be in place.

That this aspect of Internet use may no longer simply be an awaited potential but is already a reality now with us, can be discerned from what computer pundits say about the application of proper traffic analysis techniques to the traffic data of phone calls conducted through the Internet (also known as Voice Over Internet Protocol or VOIP). They claim that this analysis can reveal the language spoken and the identity of the speaker, and may even be used to reconstruct the actual words spoken during the phone conversation.⁴⁷ Others, on the other hand, have tested the possibility of inferring a person’s online activities for short periods of time through traffic data analysis.⁴⁸crallawlibrary

Recent developments in the Internet, such as the rise of Big Data⁴⁹ and the Internet of Things,⁵⁰ also serve as evidence of the realization of these possibilities, as people share more and more information on how they conduct their daily activities in the Internet and on how these information are used to perform other tasks. Right now, wireless signal strength in multiple monitoring locations may be used to accurately estimate a user’s location and motion behind walls.⁵¹ With the advent of the Internet of Things, which equips devices with sensors that allow the direct gathering of information in the physical world for transmission to the Internet, even seemingly innocuous traffic data, when collected, may possibly reveal even personal and intimate details about a person and his activities.

Thus, I believe it indisputable that information gathered from purposively collected and analyzed raw traffic data, now disclose information that the Internet user never intended to reveal when he used the Internet. These include the language used in a phone conversation in the Internet, the identity of the speaker, the content of the actual conversation, as well as a person’s exact location inside his home. From this perspective, these data, as collected and/or analyzed from online activities, are no different from content data and should likewise be protected by the right to privacy.

C.4 Deficiencies of Section 12

Section 12 of the Cybercrime Law authorizes law enforcement agents to collect and record in real-time traffic data associated with specified communications, under the following terms:chanRoblesVirtualawlibrary

Section 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

I have no doubt that the state interest that this section seeks to protect is a compelling one. This can be gleaned from Section 2 of the Cybercrime Law which clearly sets out the law’s objective - to equip the State with sufficient powers to prevent and combat cybercrime. The means or tools to this objective, Section 12 among them, would enable our law enforcers to investigate incidences of cybercrime, and apprehend and prosecute cybercriminals. According to the Department of Justice, nearly nine out of ten Filipino Internet users had been victims of crimes and malicious activities committed online. Contrast this to the mere 2,778 cases of computer crimes referred to the Anti-Transnational Crime Division (ATCD) of the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police (PNP) from 2003 to 2012,⁵² to get a picture of just how vulnerable the citizenry is to computer-related crimes.

But bad might the situation be and as already mentioned in passing above, a demonstrated and compelling state interest effectively serves only as starting point and basis for the authority to grant collection and recording authority to state agents faced with clearly established right to privacy. In addition to and as equally important as the invoked compelling state interest, is the requirement that the authorizing law or rule must provide safeguards to ensure that no unwarranted intrusion would take place to lay open the information or activities not covered by the state interest involved; the law or rule must be narrowly drawn to confine access to what the proven state interests require.

I submit that, on its face, Section 12 fails to satisfy this latter constitutional requirement. In Section 12 terms, its “due cause” requirement does not suffice as the safeguard that the Constitution requires.

My examination of Section 12 shows that it properly deals with the various types of data that computer communication generates, i.e., with traffic data per se, with data other than the defined traffic data (thus, of content data), and with the real-time collection of these data over time. The law, however, is wanting on the required safeguards when private data are accessed.

True, traffic data per se does not require any safeguard or measure stricter than the “due cause” that the law already requires, while content data can be accessed only on the basis of a judicial warrant. The real time collection and recording of traffic data and its “due cause” basis, however, suffer from fatal flaws.

The law’s “due cause” standard is vague in terms of the substance of what is “due cause” and the procedure to be followed in determining the required “cause”. The law is likewise overly broad so that real-time monitoring of traffic data can effectively overreach its allowable coverage and encroach into the realm of constitutionally-protected activities of Internet users, specifically, data that a cybercrime may not even address.

Consider, in this regard, that as worded, law enforcement agents, i.e., members of the National Bureau Investigation (NBI) and the Philippine National Police (PNP),⁵³ practically have carte blanche authority to conduct the real-time collection and recording of traffic data at anytime and on any Internet user, given that the law does not specifically define or give the parameters of the purpose for which law enforcement authorities are authorized to conduct these intrusive activities. Without sufficient guiding standards, the “due cause” basis in effect allows law enforcement agents to monitor all traffic data. This approach, to my mind, may even allow law enforcement to conduct constitutionally-prohibited fishing expeditions for violations and their supporting evidence.

Additionally, while Section 2 empowers the State to adopt sufficient powers to conduct the detection, investigation and prosecution of cybercrime as an expressed policy, Section 12, however, does not provide a standard sufficient to render enforcement rules certain or determinable; it also fails to provide guiding particulars on the real-time monitoring of traffic data. Assuming that the Cybercrime Law contemplates that real-time collection of traffic data would assist in criminal investigations, the provision does not provide any specified or determinable trigger for this activity -- should collection and recording be connected with criminal investigation in general? Is it necessary that a cybercrime has already been committed, or could it be used to prevent its commission? Would it only apply to investigations on cybercrime, or would it include investigations on crimes in the physical world whose aspects have seeped into the Internet?

In the absence of standards, guidelines or clean definitions, the ‘due cause’ requirement of Section 12 fatally opens itself to being vague as it does not even provide the context in which it should be used. It merely provides that the real-time monitoring would be related to ‘specified communications’ without mentioning as to what these communications pertain to, how these communications will be specified, and as well as the extent of the specificity of the communications.

Section 12 likewise does not provide for the extent and depth of the real-time collection and recording of traffic data. It does not limit the length of time law enforcement agents may conduct real-time monitoring and recording of traffic data, as well as the allowable contours by which a specified communication may be monitored and recorded. In other words, it does not state how long the monitoring and recording of the traffic data connected to a specified communication could take place, how specific a specified communication should be, as well as the extent of the association allowable.

The absolute lack of standards in the collection and recording of traffic data under Section 12 in effect negates the safeguards under Section 13 of the Cybercrime Law. Section 13 obligates internet service providers to collect and store traffic data for six months, which data law enforcement agents can only access based on a judicial order under Section 14. Properly understood, Section 13 is a recognition that traffic data once collected in depth and for a considerable period of time, would produce information that are private. But because Section 12 does not specify the length and extent of the real-time collection, monitoring and storage of traffic data, it in effect skirts the judicial warrant requirement before any data may be viewed under Section 13. The limitation in this section also does not also apply if the law enforcement agency has its own collection and recording facilities, a possibility that in these days is not farfetched.

Neither does Section 12 as worded sufficiently limit the information that would be collected and recorded in real-time only to traffic data. The lack of standards in Section 12 regarding the extent and conduct of the real-time collection and recording of traffic data effectively allows for its collection in bulk, which, as earlier pointed out, reveals information that are private. The lack of standards also does not prevent the possibility of using technologies that translates traffic data collected in real-time to content data or disclose a person’s online activities.

Significantly, the Cybercrime Law’s omissions in limiting the scope and conduct of the real-time collection and recording of traffic data cannot be saved by statutory construction; neither could it be filled-in by implementing rules and regulations. We can only construe what the law provides, harmonize its provisions and interpret its language. We cannot, no matter how noble the cause, add to what is not provided in the law.

The same limitation applies to law enforcement agents in the implementation of a law - assuming they have been delegated to provide for its rules and regulations. They cannot, in fixing the details of a law’s implementation, legislate and add to the law that they seek to implement.

Given the importance of Section 12 in cybercrime prevention and its possible impact on the right to privacy, we cannot, in interpreting a law, usurp what is rightfully the Congress’s duty and prerogative to ensure that the real-time collection of traffic data does not overreach into constitutionally-protected activities. In other words, it is Congress, through law, which should draw the limits of traffic data collection. Our duty in the Court comes only in determining whether these limits suffice to meet the principles enshrined in the Constitution.

In sum, as worded, the authorization for a warrantless real-time collection and recording of traffic data is not narrowly drawn to ensure that it would not encroach upon the privacy of Internet users online. Like A.O. No. 308 in Ople v. Torres, Section 12 of the Cybercrime threatens the right to privacy of our people, and should thus be struck down as unconstitutional.

D. Implications for law enforcement of the unconstitutionality of Sec. 12

The Court has, in addition to its constitutional duty to decide cases and correct jurisdictional errors, the duty to provide guidance to the bench and bar.⁵⁴ It is in consideration of this duty, as well as the pressing need for balance between the investigation and prosecution of cybercrimes and the right to privacy, that I discuss the repercussions of my proposed ruling on law enforcement.

The declaration of the unconstitutionality of Section 12 in the manner framed by the Court, should not tie the hands of Congress in enacting a replacement provision empowering the conduct of warrantless real-time collection of traffic data by law enforcement agents. This grant of power should of course avoid the infirmities of the present unconstitutional provision by providing for standards and safeguards to protect private data and activities from unwarranted intrusion.

I clarify as well that the unconstitutionality of Section 12 does not remove from the police the authority to undertake real-time collection and recording of traffic data as an investigation tool that law enforcement agents may avail of in the investigation and prosecution of criminal offenses, both for offenses involving cybercrime and ordinary crimes. Law enforcement agencies may still conduct these activities under their general powers, but with a prior judicial authorization in light of the nature of the data to be collected. To cite an example in today’s current crime situation, this tool may effectively be used against the drug menace whose leadership has so far evaded arrest and whose operations continue despite police interdiction efforts.

Notably, Section 24 of Republic Act No. 6975 empowers the Philippine National Police to enforce all laws and ordinances relative to the protection of lives and properties; maintain peace and order and take all necessary steps to ensure public safety; investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution; and to exercise the general powers to make arrest, search and seizure in accordance with the Constitution and pertinent laws.

Section 1 of Republic Act No. 157 as amended, on the other hand, mandates the National Bureau of Investigation to investigate crimes and other offenses against Philippine laws, assist, upon request, in the investigation or detection of crimes, and to establish and maintain an up-to-date scientific crime laboratory and to conduct researches in furtherance of scientific knowledge in criminal investigation.

These laws sufficiently empower the PNP and the NBI to make use of up-to-date equipment in the investigation of crimes and in the apprehension and prosecution of criminals, including cybercriminals. The PNP is particularly empowered to undertake search and seizure under RA 6975. The need for a judicial warrant does not need be a stumbling block in these efforts in the sensitive area of Internet data, as the grant of warrant is merely a question of the existence of a probable cause, proven of course according to the requirements of the Constitution.

E. The role of the courts in cybercrime prevention and prosecution

Internet has significantly changed the way crimes are committed, and has paved the way for the emergence of new crimes committed in a totally different plane: from the previous real, physical world, to the abstract, borderless plane of interconnected computers linked through the Internet.

In the same manner that technology unleashed these new threats to security and peace, it also devised new means to detect, apprehend and prosecute those who threaten society. The Cybercrime Law is notable in its aim to penalize these new threats, and in giving clear signals and actually empowering our law enforcement agents in the investigation of these cybercrimes, in the apprehension of cybercriminals, and in the prosecution of cases against them.

In the same manner likewise that our laws and law enforcement have been adapting to the threats posed by cybercrime, we in the judiciary must also rise up to the challenge of competently performing our adjudicative functions in the cyber world.

The judicial steps in cybercrime prosecution start as early as the investigation of cybercrimes, through the issuance of warrants necessary for real-time collection of traffic data, as well as the issuance of the orders for the disclosure of data retained by internet service providers.⁵⁵ After these, courts also determine the probable cause for the arrest of suspects accused of committing cybercrimes. The suspect’s arrest would then lead to a trial that, depending on the suspect’s conviction or acquittal, could then go through the judiciary appellate process. During trial, pieces of evidence would be presented and testimonies heard, and trial courts would then exercise their constitutional duty to adjudicate the cases brought before them.

Judicial involvement in all these processes requires the handling members of the Judiciary to be computer literate, at the very least. We cannot fully grasp the methodologies and intricacies of cybercrimes unless we have a basic understanding of how the world of computers operates. From the point of law, basic knowledge must be there to grasp how cybercrimes may be proven before us during trial, and what constitutes the evidentiary threshold that would allow us to determine, beyond reasonable doubt, that the person accused really did commit a cybercrime.

For instance, I agree with the Solicitor General’s observation that time is of the utmost essence in cybercrime law enforcement, as the breadth and speed of technology make the commission of these crimes and the subsequent destruction of its evidence faster and easier. To my mind, our current rules of procedure for the issuance of search warrants might not be responsive enough to effectively track down cybercriminals and obtain evidence of their crimes. Search warrants for instance, might be issued too late to seize evidence of the commission of a cybercrime, or may not properly describe what should be seized, among others.

Due to the highly-technical nature of investigating and prosecuting cybercrimes, as well as the apparent need to expedite our criminal procedure to make it more responsive to cybercrime law enforcement, I propose that special cybercrime courts be designated to specifically handle cases involving cybercrime. In addition, these cybercrime courts should have their own rules of procedure tailor-fitted to respond to the technical requirements of cybercrime prosecution and adjudication.

The designation of special cybercrime courts of course is not outside our power to undertake: Section 21⁵⁶ of the Cybercrime Law grants the Regional Trial Courts jurisdiction over any violation of the Cybercrime Law, and provides that special cybercrime courts manned by specially trained judges should be designated. Section 5, Article VIII of the 1987 Constitution,⁵⁷ on the other hand, empowers this Court to promulgate rules on the pleading, practice, and procedure in all courts.

As with every petition involving the constitutionality of a law, we seek to find the proper balance between protecting a society where each individual may lawfully enjoy his or her fundamental freedoms, and where the safety and security of the members of society are assured through proper regulation and enforcement. In the present petition, I agree with the ponencia that the Cybercrime Law is improperly tilted towards strengthening law enforcement, to the detriment of our society’s fundamental right to privacy. This is highlighted by the law’s position under Section 12 which, as discussed, goes beyond what is constitutionally permissible. Beyond this finding, however, we need to provide - within the limits of our judicial power, remedies that will still allow effective law enforcement in the cyber world. It is in these lights that I urge my colleagues in this Court to consider the immediate training and designation of specialized cybercrime courts and the drafting of their own rules of procedure.

As I mentioned in the opening statements of this Concurring Opinion, I have prepared a table for easy reference to my votes. This table is attached as Annex “A” and is made an integral part this Opinion.

Endnotes:

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¹ Section 5. Other Offenses. — The following acts shall also constitute an offense:chanRoblesVirtualawlibrary

(a) Aiding or Abetting in the Commission of Cybercrime. - Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

² Section 5. Other Offenses. — The following acts shall also constitute an offense:chanRoblesVirtualawlibrary

(a) Aiding or Abetting in the Commission of Cybercrime. - Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

³ Section 19. Restricting or Blocking Access to Computer Data. — When a 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.

⁴Guinguing v. Court of Appeals, 508 Phil. 193, 197 - 198 (2005).

See: Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, p. 272;

In as early as 1909, our jurisprudence in US v. Sedano has recognized the constitutionality of libel, noting that “the provisions of the Constitution of the United States guaranteeing the liberty of the press, from which the provisions of the Philippine Bill were adopted, have never been held to secure immunity to the person responsible for the publication of libelous defamatory matter in a newspaper.”

⁵ Libel, as defined by Article 353 of the Revised Penal Code as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

⁶ During the interpellations of the cybercrime bill before the Senate, Senator Edgardo J. Angara, the bill’s principal sponsor, pointed out that cyberspace is just a new avenue for publicizing or communicating a libellous statement which is subject to prosecution and punishment as defined by the Revised Penal Code. Senate Journal, December 12, 2011, available at http://www.gov.ph/2012/10/03/for-the-record-public-records-of-senate-deliberations-on-the-cybercrime-prevention-bill/

⁷ American Jurisprudence (Vol. 33, p. 292) explains that “Under the common-law theory, which is embodied in some of the statutory provisions on the subject, the criminality of a defamatory statement consist in the tendency thereof to provoke a breach of the peace,” but, it adds, “many of the modern enactments, ... ignore this aspect altogether and make a libelous publication criminal if its tendency is to injure the person defamed, regardless of its effect upon the public.”

The present Philippine law on libel conforms to this modern tendency. For a little digression on the present law of libel or defamation, let it be noted that the Revised Penal Code has absorbed libel under Act No. 277 and calumny and insult under the old Penal Code. (Commentaries on the Revised Penal Code, Guevarra, p. 764.) The new Penal Code includes ”All kinds of attacks against honor and reputation, thereby eliminating once and for all the idle distinction between calumny, insult and libel.”(Idem, p. 765.) People v. del Rosario, 86 Phil. 163, 165 - 166 (1950).

⁸Worcester v. Ocampo, 22 Phil. 42, 73 - 74 (1912).

⁹ During the senate’s deliberations on the cybercrime bill, Senator Sotto asked Senator Angara if the bill also addresses internet libel or internet defamation. Senator Angara answered that the bill includes it as a crime, an actionable offense, because one can be defamed through Twitter or social media.

To the comment that one’s reputation can easily be ruined and damaged by posts and comments in social network sites, Senator Angara stated that under the proposed law, the offended party can sue the person responsible for posting such comments. Senate Journal, December 12, 2011, available at http://www.gov.ph/2012/10/03/for-the-record-public-records-of-senate-deliberations-on-the-cybercrime-prevention-bill/

¹⁰ One of the most striking aspects of cyberspace is that it ”provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions.” n1 This characteristic sharply contrasts with traditional forms of mass communication, such as television, radio, newspapers, and magazines, which require significant start-up and operating costs and therefore tend to concentrate communications power in a limited number of hands. Anyone with access to the Internet, however, can communicate and interact with a vast and rapidly expanding cyberspace audience. n2 As the Supreme Court opined in its recent landmark decision, Reno v. ACLU, n3 the Internet enables any person with a phone line to “become a pamphleteer” or “a town crier with a voice that resonates farther than it could from any soapbox.” n4 Indeed, the Internet is “a unique and wholly new medium of worldwide human communication” n5 that contains content ”as diverse as human thought.” n6

The term ”cyber-reach” can be used to describe cyberspace’s ability to extend the reach of an individual’s voice. Cyber-reach makes the Internet unique, accounts for much of its explosive growth and popularity, and perhaps holds the promise of a true and meaningful ”free trade in ideas” that Justice Holmes imagined eighty years ago. Bill Mcswain, Developments in the Law - The Long Arm of Cyber-reach, 112 Harv. L. Rev. 1610 (1998).

¹¹Alcantara v. Ponce, 545 Phil. 678, 683 (2007).

¹²US v. Grino, 36 Phil. 738 (1917); People v. Silvela, 103 Phil. 773 (1958).

¹³People v. Casten, CA-G.R. No. 07924-CR, December 13, 1974.

¹⁴Fermin v. People of the Philippines, 573 Phil. 12 (2008).

¹⁵ Article 355 of the Revised Penal Code

¹⁶People v. Santiago, G.R. No. L-17663, May 30, 1962, 5 SCRA 231, 233 - 234.

¹⁷ Section 5. Other Offenses. — The following acts shall also constitute an offense:chanRoblesVirtualawlibrary

(a) Aiding or Abetting in the Commission of Cybercrime. - Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

¹⁸ Section 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

¹⁹ Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:chanRoblesVirtualawlibrary

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

²⁰ 508 Phil. 193 (2005).

²¹ 361 Phil. 3 (1999).

²² 376 US 254.

²³ 209. The type of data that can be collected is of two types: traffic data and content data. ‘Traffic data’ is defined in Article 1 d to mean any computer data relating to a communication made by means of a computer system, which is generated by the computer system and which formed a part in the chain of communication, indicating the communication’s origin, destination, route, time, date, size and duration or the type of service. ‘Content data’ is not defined in the Convention but refers to the communication content of the communication; i.e., the meaning or purport of the communication, or the message or information being conveyed by the communication (other than traffic data).

210. In many States, a distinction is made between the real-time interception of content data and real-time collection of traffic data in terms of both the legal prerequisites required to authorize such investigative measure and the offences in respect of which this measure can be employed. While recognizing that both types of data may have associated privacy interests, many States consider that the privacy interests in respect of content data are greater due to the nature of the communication content or message. Greater limitations may be imposed with respect to the real-time collection of content data than traffic data. To assist in recognizing this distinction for these States, the Convention, while operationally acknowledging that the data is collected or recorded in both situations, refers normatively in the titles of the articles to the collection of traffic data as ‘real-time collection’ and the collection of content data as ‘real-time interception’.

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215. The conditions and safeguards regarding the powers and procedures related to real-time interception of content data and real-time collection of traffic data are subject to Articles 14 and 15. As interception of content data is a very intrusive measure on private life, stringent safeguards are required to ensure an appropriate balance between the interests of justice and the fundamental rights of the individual. In the area of interception, the present Convention itself does not set out specific safeguards other than limiting authorisation of interception of content data to investigations into serious criminal offences as defined in domestic law. Nevertheless, the following important conditions and safeguards in this area, applied in domestic laws, are: judicial or other independent supervision; specificity as to the communications or persons to be intercepted; necessity, subsidiarity and proportionality (e.g. legal predicates justifying the taking of the measure; other less intrusive measures not effective); limitation on the duration of interception; right of redress. Many of these safeguards reflect the European Convention on Human Rights and its subsequent case-law (see judgements in Klass (5), Kruslin (6), Huvig (7), Malone (8), Halford (9), Lambert (10) cases). Some of these safeguards are applicable also to the collection of traffic data in real-time.

Explanatory Report on the Budapest Convention on Cybercrime, ²⁰⁰¹ COETSER 8 (November 23, 2001), available at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm

²⁴Morfe v. Mutuc, 130 Phil. 415, 436 (1968).

²⁵Ople v. Torres, 354 Phil. 948, 970 (1998).cralawred

²⁶ See, for instance, the following cases where the Court upheld the governmental action over the right to privacy: Kilusang Mayo Uno v. NEDA, 521 Phil. 732 (2006) (regarding the validity of Executive Order No. 420, which established the unified multi-purpose identification (ID) system for government); Standard Chartered Bank v. Senate Committee on Banks, 565 Phil. 744 (2007) (regarding the Senate’s resolution compelling petitioners who are officers of petitioner SCB-Philippines to attend and testify before any further hearing to be conducted by the Senate); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 395 - 399 (regarding the Regional Trial Court of Laoag’s decision denying the petitioner’s petition for the privilege of the writ of habeas data).

²⁷ See, for instance, the following cases where the Court nullified governmental actions and upheld the right to privacy: City of Manila v. Laguio Jr., 495 Phil. 289, 317 - 319 (2005) (regarding a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area); Social Justice Society v. Dangerous Drugs Board, 591 Phil. 393, 413 - 417 (2008) (regarding mandatory drug-testing for of candidates for public office and persons charged with a crime having an imposable penalty of imprisonment of not less than six (6) years and one (1) day before the prosecutor’s office); White Light Corporation v. City of Manila, 596 Phil. 444, 464 - 467 (2009) (regarding a city ordinance prohibiting motels and inns from offering short-time admission, as well as pro-rated or “wash up” rates).

²⁸Ople v. Torres, 354 Phil. 948, 970 (1998).

²⁹City of Manila v. Laguio Jr., 495 Phil. 289 (2005).

³⁰White Light Corporation v. City of Manila, 596 Phil. 444 (2009).

³¹ Internet definition, Merriam Webster Online Dictionary, http://www.merriam-webster.com/dictionary/internet

³² As the technology exists now, data is usually sent through the Internet through a packet-switching network. Under this system, data sent through the Internet is first broken down into tiny packets of data which pass through different networks until it reaches its destination, where it is reassembled into the data sent. These tiny packets of data generally contain a header and a payload. The header keeps overhead information about the packet, the service and other transmission-related information. This includes the source and destination of the data, the sequence number of the packets, and the type of service, among others. The payload, on the other hand, is the actual data carried by the packet. Traffic data may be monitored, recorded and collected from the headers of packets.

³³ Chapter 1, Article 1 (d) of the Cybercrime Convention; see also Section 3 (p) of Republic Act No. 10175.

³⁴ Chapter 1, Article 1 (b) of the Cybercrime Convention

³⁵What is a packet?, HowStuffWorks.com (Dec. 01, 2000) http://computer.howstuffworks.com/question525.htm See also: Structure of the Internet: Packet switching, in A-level Computing/AQA, http://en.wikibooks.org/wiki/A-level_Computing/AQA/Computer_Components,_The_Stored_Program_Concept_and_the_Internet/Structure_of_the_Internet/Packet_switching; and What is Packet Switching?, Teach-ICT.com, http://www.teach-ict.com/technology_explained/packet_switching/packet_switching.html.

³⁶ Edward J. Wegman and David J. Marchette, On Some Techniques for Streaming Data:chanRoblesVirtualawlibrary

A Case Study of Internet Packet Headers, p.7, http://www.dmarchette.com/Papers/VisPacketHeadersRev1.pdf.

³⁷ 167. Often more than one service provider may be involved in the transmission of a communication. Each service provider may possess some traffic data related to the transmission of the specified communication, which either has been generated and retained by that service provider in relation to the passage of the communication through its system or has been provided from other service providers. Sometimes traffic data, or at least some types of traffic data, are shared among the service providers involved in the transmission of the communication for commercial, security, or technical purposes. In such a case, any one of the service providers may possess the crucial traffic data that is needed to determine the source or destination of the communication. Often, however, no single service provider possesses enough of the crucial traffic data to be able to determine the actual source or destination of the communication. Each possesses one part of the puzzle, and each of these parts needs to be examined in order to identify the source or destination. Explanatory Report on the Budapest Convention on Cybercrime, ²⁰⁰¹ COETSER 8 (Nov. 23, 2001), available at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm.

³⁸ A law enforcement agent’s unauthorized access to content data may constitute illegal interception, which is penalized by Section 4, paragraph 2 of the Cybercrime Law:chanRoblesVirtualawlibrary

(2) Illegal Interception. - The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

³⁹ 442 U.S. 735 (1979).

⁴⁰ In Smith v. Maryland 442 U.S. 735 (1979), the petitioner had been charged with robbery, and prior to his trial, moved that the evidence acquired by the police through the installation of a pen register at a telephone company’s central offices. This allowed the police to record the numbers dialed from the telephone at the petitioner’s home. The US Supreme Court eventually held that this act did not violate the petitioner’s right to privacy, as it does not constitute a search. The petitioner did not entertain an actual, legitimate and reasonable expectation of privacy to the phone numbers he dialed.

⁴¹ In the Philippines, data privacy is governed by Republic Act 10173 or The Data Privacy Act of 2012. RA 10173 established the country’s data privacy framework. It recognizes the individual’s rights to his personal information and sensitive information, and fines the unlawful processing of these kinds of information and the violation of the rights of a data subject.

⁴² Section 16 of the Data Privacy Act provides:chanRoblesVirtualawlibrary

Section 16. Rights of the Data Subject. - The data subject is entitled to:chanRoblesVirtualawlibrary

(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;
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(e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

⁴³ Section 31 and 32 of the Data Privacy Act provide:chanRoblesVirtualawlibrary

Section 31. Malicious Disclosure. - Any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).

Section 32. Unauthorized Disclosure. - (a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).

(b) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party sensitive personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00).

⁴⁴ Mindi McDowell, Staying Safe on Social Network Sites, US-CERT, (Feb. 6, 2013) http://www.us-cert.gov/ncas/tips/ST06-003; See Adam Tanner, Users more savvy about social media privacy than thought, poll says, Forbes Magazine, (Nov. 11, 2013) http://www.forbes.com/sites/adamtanner/2013/11/13/users-more-savvy-about-social-media-privacy-than-thought-poll-finds/.

⁴⁵ 533 U.S. 27 (2001).

⁴⁶ 533 U.S. 27, 37 (2001).

⁴⁷ Riccardo Bettatti, Traffic Analysis and its Capabilities, (Sept. 10, 2008) http://usacac.army.mil/cac2/cew/repository/papers/Modern_Traffic_Analysis_and_its_Capabilities.pdf; Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities Through Traffic Analysis (June 2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.pdf citing C.V. Wright, L. Ballard, F. Monrose, and G. M. Masson, Language identification of encrypted VoIP traffic: Alejandra y roberto or alice and bob in Proceedings of USENIX Security Symposium, 2007 and C.V. Wright, L. Ballard, S. E. Coull, F. Monrose, and G. M. Masson, Spot me if you can: Uncovering spoken phrases in encrypted VoIP conversations, In Proceedings of IEEE Symposium on Security and Privacy, 2008.

⁴⁸ Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities Through Traffic Analysis (June 2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.pdf.

⁴⁹ See: James Manyika, Michael Chui, Brad Brown, Jacques Bughin, Richard Dobbs, Charles Roxburgh, Angela Hung Byers, Big data: The next frontier for innovation, competition, and productivity, Mckinsey Global Institute, (May 2011) http://www.mckinsey.com/insights/business_technology/big_data_the_next_frontier_for_innovation

⁵⁰ More objects are becoming embedded with sensors and gaining the ability to communicate. The resulting information networks promise to create new business models, improve business processes, and reduce costs and risks. Michael Chui, Markus Loffler, and Roger Roberts, The Internet of Things, Mckinsey Global Institute, (March 2010) http://www.mckinsey.com/insights/high_tech_telecoms_internet/the_internet_of_things.

⁵¹ Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities Through Traffic Analysis (June 2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.pdf citing T. Jiang, H.J. Wang, and Y. Hu. Preserving location privacy in wireless LANs In Proceedings of MobiSys, pages 246-257, 2007 and J. Wilson and N. Patwari, See through walls: Motion tracking using variance-based radio tomography networks, IEEE Transactions on Mobile Computing, 2010.

⁵² Department of Justice Primer on Cybercrime, available at http://www.upm.edu.ph/downloads/announcement/DOJ%20Primer%20on%20Cybercrime%20Law.pdf; see also “Quashing Cybercrime,” Senator Edgardo Angara’s sponsorship speech on the Cybercrime Prevention Act (May 11, 2011) http://www.senate.gov.ph/press_release/2011/0511_angara3.asp

⁵³ Section 10 of the Cybercrime Law provides:chanRoblesVirtualawlibrary

Section 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act.

⁵⁴ See for instance, Fernandez v. Comelec, 579 Phil. 235, 240 (2008) and Villanueva v. Adre, 254 Phil. 882, 887 (1989), where the Court declared a petition moot and academic, but proceeded to rule on the issue of jurisdiction for the guidance of the bench and the bar; or Altres v. Empleo, 594 Phil. 246, 261 - 262 (2008), where the Court restated in capsule form the jurisprudential pronouncements on forum-shopping; or Republic v. CA and Molina, 335 Phil. 664, 676 - 680 (1997), where the Court formulated guidelines in the interpretation and application of Art. 36 of the Family Code.

⁵⁵ Section 14 and 16 of the Cybercrime Law provides:chanRoblesVirtualawlibrary

Section 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

Section 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

⁵⁶ Section 21 of the Cybercrime Law provides:chanRoblesVirtualawlibrary

Section 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act. including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.

⁵⁷ Article VIII, Section 5, paragraph 5 of the 1987 Constitution provides:chanRoblesVirtualawlibrary

Section 5. The Supreme Court shall have the following powers:chanRoblesVirtualawlibrary

xxx

5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

---

LEONEN, J.:

Most of the challenges to the constitutionality of some provisions of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) are raised without an actual case or controversy. Thus, the consolidated petitions should fail except for those that raise questions that involve the imminent possibility that the constitutional guarantees to freedom of expression will be stifled because of the broadness of the scope of the text of the provision. In view of the primacy of this fundamental right, judicial review of the statute itself, even absent an actual case, is viable.

With this approach, I am of the opinion that the constitution requires that libel as presently contained in the Revised Penal Code and as reenacted in the Cybercrime Prevention Act of 2012 (Rep. Act No. 10175) be struck down as infringing upon the guarantee of freedom of expression provided in Article III, Section 4 of our Constitution. I am also of the firm view that the provisions on cybersex as well as the provisions increasing the penalties of all crimes committed with the use of computers are unconstitutional. The provision limiting unsolicited commercial communications should survive facial review and should not be declared as unconstitutional.

I concur with the majority insofar as they declare that the “take down” clause, the provision allowing dual prosecutions of all cybercrimes, and the provision that broadly allows warrantless searches and seizures of traffic data, are unconstitutional. This is mainly because these present unwarranted chilling effects on the guaranteed and fundamental rights of expression.

I

Framework of this Opinion

Reality can become far richer and more complex than our collective ability to imagine and predict. Thus, conscious and deliberate restraint — at times — may be the better part of judicial wisdom.

The judiciary’s constitutionally mandated role is to interpret and apply the law. It is not to create or amend law on the basis of speculative facts which have not yet happened and which have not yet fully ripened into clear breaches of legally demandable rights or obligations. Without facts that present an actual controversy, our inquiry will be roving and unlimited. We substitute our ability to predict for the rigor required by issues properly shaped in adversarial argument of the real. We become oracles rather than a court of law.

This is especially so when the law is made to apply in an environment of rapidly evolving technologies that have deep and far-reaching consequences on human expression, interaction, and relationships. The internet creates communities which virtually cross cultures, creating cosmopolitarian actors present in so many ways and in platforms that we are yet starting to understand.

Petitioners came to this court via several petitions for certiorari and/or prohibition under Rule 65 of the Rules of Court. They seek to declare certain provisions of Rep. Act No. 10175 or the Cybercrime Prevention Act of 2012¹ as unconstitutional. They allege grave abuse of discretion on the part of Congress. They invoke our power of judicial review on the basis of the textual provisions of the statute in question, their reading of provisions of the Constitution, and their speculation of facts that have not happened — may or may not happen — in the context of one of the many technologies available and evolving in cyberspace. They ask us to choose the most evil among the many possible but still ambiguous future factual permutations and on that basis declare provisions not yet implemented by the Executive or affecting rights in the concrete as unconstitutional. In effect, they ask us to do what the Constitution has not even granted to the President: a provision-by-provision veto in the guise of their interpretation of judicial review.

Although pleaded, it is difficult to assess whether there was grave abuse of discretion on the part of the Executive. This court issued a temporary restraining order to even proceed with the drafting of the implementing rules. There has been no execution of any of the provisions of the law.

This is facial review in its most concrete form. We are asked to render a pre-enforcement advisory opinion of a criminal statute. Generally, this cannot be done if we are to be faithful to the design of our Constitution.

The only instance when a facial review is permissible is when there is a clear showing that the provisions are too broad under any reasonable reading that it imminently threatens expression. In these cases, there must be more of a showing than simply the in terrorem effect of a criminal statute. It must clearly and convincingly show that there can be no determinable standards that can guide interpretation. Freedom of expression enjoys a primordial status in the scheme of our basic rights. It is fundamental to the concept of the people as sovereign. Any law — regardless of stage of implementation — that allows vague and unlimited latitude for law enforcers to do prior restraints on speech must be struck down on its face.

This is the framework taken by this opinion.

The discussion in this dissenting and concurring opinion is presented in the following order:chanRoblesVirtualawlibrary

1. Justiciability

2. The Complexity of the Internet and the Context of the Law

3. The Doctrine of Overbreadth and the Internet

4. Take Down Clause

5. Libel Clauses

6. Cybersex Provisions

7. Speech Component in the Collection of Traffic Data

8. Commercial Speech

Justiciability

Judicial review — the power to declare a law, ordinance, or treaty as unconstitutional or invalid — is inherent in judicial power.² It includes the power to “settle actual controversies involving rights which are legally demandable”³ and “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on any part of any branch or instrumentality of Government.”⁴ The second aspect of judicial review articulated in the 1987 Constitution nuances the political question doctrine.⁵ It is not licensed to do away with the requirements of justiciability.

The general rule is still that: “the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned.”⁶ Justiciability on the other hand requires that: (a) there must be an actual case or controversy involving legal rights that are capable of judicial determination; (b) the parties raising the issue must have standing or locus standi to raise the constitutional issue; (c) the constitutionality must be raised at the earliest possible opportunity, thus ripe for adjudication; and (d) the constitutionality must be the very lis mota of the case, or the constitutionality must be essential to the disposition of the case.⁷crallawlibrary

It is essential that there be an actual case or controversy.⁸ “There must be existing conflicts ripe for judicial determination — not conjectural or anticipatory. Otherwise, the decision of the Court will amount to an advisory opinion.”⁹crallawlibrary

In Information Technology Foundation of the Phils. v. COMELEC,¹⁰ this court described the standard within which to ascertain the existence of an actual case or controversy:chanRoblesVirtualawlibrary

It is well-established in this jurisdiction that ”x x x for a court to exercise its power of adjudication, there must be an actual case or controversy -- one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. x x x [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.” The controversy must be justiciable -- definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.¹¹ (Citations omitted, emphasis supplied)

In Lozano v. Nograles,¹² this court also dismissed the petitions to nullify House Resolution No. 1109 or “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress.” In dismissing the petitions, this court held:chanRoblesVirtualawlibrary

It is well settled that it is the duty of the judiciary to say what the law is. The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its ”solemn and sacred obligation” under the Constitution. This Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. The ”case-or-controversy” requirement bans this court from deciding ”abstract, hypothetical or contingent questions,”⁵ lest the court give opinions in the nature of advice concerning legislative or executive action.”(Emphasis supplied)¹³crallawlibrary

Then, citing the classic words in Angara v. Electoral Commission:¹⁴crallawlibrary

Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.¹⁵ (Citations omitted)

In Republic of the Philippines v. Herminio Harry Roque et al.,¹⁶ this court ruled in favor of the petitioner and dismissed the petitions for declaratory relief filed by respondents before the Quezon City Regional Trial Court against certain provisions of the Human Security Act. In that case, the court discussed the necessity of the requirement of an actual case or controversy:chanRoblesVirtualawlibrary

Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by ”ripening seeds” it is meant, not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled and stabilized by tranquilizing declaration.

A perusal of private respondents’ petition for declaratory relief would show that they have failed to demonstrate how they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the assailed provisions of RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases, private respondents only assert general interests as citizens, and taxpayers and infractions which the government could prospectively commit if the enforcement of the said law would remain untrammeled. As their petition would disclose, private respondents’ fear of prosecution was solely based on remarks of certain government officials which were addressed to the general public. They, however, failed to show how these remarks tended towards any prosecutorial or governmental action geared towards the implementation of RA 9372 against them. In other words, there was no particular, real or imminent threat to any of them.”¹⁷ (Emphasis supplied)

Referring to Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council:¹⁸crallawlibrary

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by ”double contingency,” where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. (Emphasis supplied; citations omitted)¹⁹crallawlibrary

None of the petitioners in this case have been charged of any offense arising from the law being challenged for having committed any act which they have committed or are about to commit. No private party or any agency of government has invoked any of the statutory provisions in question against any of the petitioners. The invocations of the various constitutional provisions cited in petitions are in the abstract. Generally, petitioners have ardently argued possible applications of statutory provisions to be invoked for future but theoretical state of facts.

The blanket prayer of assailing the validity of the provisions cannot be allowed without the proper factual bases emanating from an actual case or controversy.

II

The Complexity of the Internet and the Context of the Law

This is especially so when the milieu is cyberspace.

The internet or cyberspace is a complex phenomenon. It has pervasive effects and are, by now, ubiquitous in many communities. Its possibilities for reordering human relationships are limited only by the state of its constantly evolving technologies and the designs of various user interfaces. The internet contains exciting potentials as well as pernicious dangers.

The essential framework for governance of the parts of cyberspace that have reasonable connections with our territory and our people should find definite references in our Constitution. However, effective governance of cyberspace requires cooperation and harmonization with other approaches in other jurisdictions. Certainly, its scope and continuous evolution require that we calibrate our constitutional doctrines carefully: in concrete steps and with full and deeper understanding of incidents that involve various parts of this phenomenon. The internet is neither just one relationship nor is it a single technology. It is an interrelationship of many technologies and cultures.

An overview may be necessary if only to show that judicial pre-enforcement review — or a facial evaluation of only the statute in question — may be inadvisable. Cases that involve cyberspace are the paradigmatic examples where courts should do an evaluation of enshrined constitutional rights only in the context of real and actual controversies.

II (A)

A “Network of Networks”²⁰crallawlibrary

The very concept of an “internet” envisions pervasiveness. The first recorded description of the interactions that would come to typify the internet was contained in a series of memos in August 1962 by J.C.R. Licklider. In these memos, the pioneering head of the computer research program at the United States Department of Defense’s Advanced Research Projects Agency (ARPA) discussed his concept of a “Galactic Network.”²¹crallawlibrary

The term “internet” is an abbreviation for “inter-networking.”²² It refers to a “combination of networks that communicate between themselves.”²³ A “network” pertains to the interconnection of several distinct components. To speak of an “internet” is, therefore, to speak of the interconnection of interconnections. Thus, “[t]he Internet today is a widespread information infrastructure.”²⁴ It is “at once a world-wide broadcasting capability, a mechanism for information dissemination, and a medium for collaboration and interaction between individuals and their computers without regard for geographic location.”²⁵crallawlibrary

The internet grew from ARPA’s ARPANet. It took off from the revolutionary concept of packet-switching as opposed to circuit switching. Packet switching eliminated the need for connecting at the circuit level where individual bits of data are passed synchronously along an end-to-end circuit between two end locations. Instead, packet switching allowed for the partitioning of data into packets, which are then transmitted individually and independently, even through varying and disjointed paths. The packets are then reassembled in their destination.²⁶ At any given microsecond, without our jurisdiction, complete content may be sent from any computer connected by wire or wirelessly to the internet. At the same time, there can be small parts or packets of information passing through other computers destined to be reassembled in a requesting computer somewhere in this planet.

Packet switching requires that “open architecture networking” be the underlying technical foundation of the internet. Separately designed and developed networks are connected to each other. Each of these participating networks may have its own unique interfaces that it offers to its users. Every user in each of these separate but participating networks, however, remains connected to each other.²⁷crallawlibrary

This open-architecture network environment in turn requires a communications protocol that allows a uniform way of joining different networks.²⁸ Developed in 1973, this protocol eventually came to be known as the Transmission Control Protocol/Internet Protocol (TCP/IP).²⁹ “The Internet Protocol (IP) sets how data is broken down into chunks for transmission, as well as how the source and destination addresses are specified.”³⁰crallawlibrary

To identify connected devices, each device on the internet is assigned a unique address in the form of a “dotted quad,” otherwise known as the IP address (100.962.28.27). These IP addresses are used to route data packets to their respective destinations.³¹ There are a finite number of IP addresses available. With the growth of the internet beyond all expectations, the expansion of available IP addresses became imperative. There is now an ongoing effort to shift from IP version 4 (IPv4) to IP version 6 (Ipv6). From a communication protocol that allows for roughly 4.3 billion unique addresses, the new version will allow for 2128 unique addresses. Written in ordinary decimal form, this number is 39 digits long.³²crallawlibrary

TCP/IP addressed the need for connected devices to have a unique identification and designation. But, to make these addresses accessible and readable to its human users, “domain names” were introduced. Internet addresses are now also written as “domain names” under what is known as the Domain Name System (DNS).”³³ The internet address of this court is thus: sc.judiciary.gov.ph.

The allocation of unique identifiers for the internet, such as IP addresses and domain names, is administered not by a public³⁴ entity but by a nonprofit public benefit corporation based in the United States of America: the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN allocates IP addresses and “administers the DNS through delegated authority to domain name registries.”³⁵ These registries consist of databases of all domain names registered in generic top level domains (gTLD), such as .com, .org, .gov, and country code top level domains (ccTLD), such as .ph and .sg.³⁶crallawlibrary

II (B)

Openness and the World Wide Web

In 1989, Tim Berners-Lee of the European Organization for Nuclear Research (CERN) developed the World Wide Web (WWW). The World Wide Web “allowed documents, or pages, to link to other documents stored across a network.”³⁷ Together with electronic mail (email), the World Wide Web has been the “driving force” of the internet.³⁸ The World Wide Web provided the impetus for others to develop software called “browsers,” which allowed the user to navigate access to content as well as to exchange information through “web pages.” Information can be carried through different media. Thus, text can be combined with pictures, audio, and video. These media can likewise be “hyperlinked” or marked so that it could provide easy access to other pages containing related information.

This new form of interface hastened the internet’s environment of openness.³⁹ It is this openness and the innovation it continuously engendered that enabled the internet to eclipse networks built around appliances connected or tethered to specific proprietary infrastructure such as America Online and CompuServe.⁴⁰ It is this openness that enabled the internet to become the present-day “widespread information infrastructure”⁴¹ or universal “network of networks.”⁴²crallawlibrary

Today, the use of the internet and its prevalence are not only inevitable facts, these are also escalating phenomena. By the end of 2011, it was estimated that some 2.3 billion individuals, or more than one-third of the world’s population, had access to the internet.⁴³ The use of the internet is inevitably bound to increase as wireless or mobile broadband services become more affordable and available. By 2015, the estimates are that the extent of global internet users will rise to nearly two-thirds of the world’s population.⁴⁴crallawlibrary

II (C)

The Inevitability of Use and Increasing Dependency on the Internet

Contemporary developments also challenge the nature of internet use. No longer are we confined to a desktop computer to access information on the internet. There are more mobile and wireless broadband subscriptions. As of 2011, the number of networked devices⁴⁵ has exceeded the global population. By 2020, this disparity of connected devices as opposed to connected individuals is expected to escalate to a ratio of six to one.⁴⁶ Today, individuals may have all or a combination of a desktop, a mobile laptop, a tablet, several smart mobile phones, a smart television, and a version of an Xbox or a PlayStation or gaming devices that may connect to the internet. It is now common to find homes with Wi-Fi routers having broadband connection to the internet.

This reality has increased the density of communication among individuals. A July 2011 study reported that every day, 294 billion electronic mails (emails) and 5 billion phone messages are exchanged worldwide.⁴⁷ Another survey yielded the following:⁴⁸crallawlibrary

	Global	Philippines
Percentage of respondents who said they access the Internet many or several times a day	89%	78%
Percentage of respondents who used e-mail at least once a day	87%	79%
Percentage of respondents who used social media at least once a day	60%	72%
Percentage of respondents who used instant messaging at least once a day	43%	51%

The accelerating rate of increase of internet users is relevant to developing countries like the Philippines. Reports reveal that, as of 2011, “[i]nternet user growth was higher in developing (16 per cent) than developed (5 per cent) countries.”⁴⁹ Thus, “[i]nternet user penetration rates in developing countries have tripled over the past five years, and the developing countries’ share of the world’s total number of Internet users has increased, from 44 per cent in 2006 to 62 per cent in 2011.”⁵⁰ Consistent with this accelerating trend, the internet-user penetration rate for developing countries stood at 24% at the end of 2011; the estimates are that this will double by 2015.⁵¹ There are more citizens in developing countries using the internet. The share, in internet traffic, by developing countries, has also increased as compared with developed countries.

The attitude of users shows a marked trend towards dependence. A survey showed that the internet is viewed by its users as playing a positive role; not only for individual lives but also for society at large. Moreover, the internet has come to be perceived as somewhat of an imperative. Of its many findings, the following data from the 2012 Global Internet Survey are particularly notable:⁵²crallawlibrary

		Percentage of respondents who agreed or agreed strongly (GLOBAL)	Percentage of respondents who agreed or agreed strongly (PHILIPPINES)
The Internet does more to help society than it does to hurt it		83%	91%
Their lives have improved due to using the Internet		85%	93%
The Internet is essential to their knowledge and education		89%	96%
The Internet can play a significant role in:
	1. Increasing global trade and economic relationships among countries	81%	95%
	2. Achieving universal primary school education	76%	91%
	3. Promoting gender equality	70%	89%
	4. Protecting the environment	74%	92%
	5. Helping to combat serious diseases	72%	92%
	6. Eliminating extreme poverty and hunger	61%	75%
	7. Improving maternal health	65%	84%
	8. Reducing child mortality	63%	80%
	9. Improving emergency response and assistance during natural disasters	77%	92%
	10. Preventing the trafficking of women and children	69%	84%
	11. Improving the quality of education	80%	95%
	12. Improving social problems by increasing communication between and among various groups in society	76%	93%
	13. Reducing rural and remote community isolation	80%	96%
	14. Keeping local experts in or bringing experts back to their country because they can use technology to create business	75%	94%

Of more pronounced legal significance are the following findings:^53]

	Percentage of respondents who agreed or agreed strongly     (GLOBAL)	Percentage of respondents who agreed or agreed strongly     (PHILIPPINES)
The Internet should be considered a basic human right	83%	88%
Their respective governments have an obligation to ensure that they have the opportunity to access the Internet	80%	85%
Freedom of expression should be guaranteed on the Internet	86%	86%
Services such as social media enhance their right to peaceful assembly and association	80%	91%

The relationship of internet use and growth in the economy has likewise been established. The significance of the internet is as real as it is perceived, thus:chanRoblesVirtualawlibrary

Research by the World Bank suggests that a 10% increase in broadband penetration could boost GDP by 1.38% in low- and middle-income countries.”⁵⁴ More specifically, it cited that, in the Philippines, “[m]obile broadband adoption was found to contribute an annual 0.32% of GDP, [representing] 6.9% of all GDP growth for the economy during the past decade.⁵⁵crallawlibrary

The Dangers in the Internet

While the internet has engendered innovation and growth, it has also engendered new types of disruption. A noted expert employs an “evolutionary metaphor” as he asserts:chanRoblesVirtualawlibrary

[Generative technologies] encourage mutations, branchings away from the status quo—some that are curious dead ends, others that spread like wild?re. They invite disruption—along with the good things and bad things that can come with such disruption.⁵⁶crallawlibrary

Addressing the implications of disruption, he adds:chanRoblesVirtualawlibrary

Disruption bene?ts some while others lose, and the power of the generative Internet, available to anyone with a modicum of knowledge and a broadband connection, can be turned to network-destroying ends. x x x [T]he Internet’s very generativity — combined with that of the PCs attached — sows the seeds for a “digital Pearl Harbor.”⁵⁷crallawlibrary

The internet is an infrastructure that allows for a “network of networks.”⁵⁸ It is also a means for several purposes. As with all other “means enhancing capabilities of human interaction,”⁵⁹ it can be used to facilitate benefits as well as nefarious ends. The internet can be a means for criminal activity.

Parallel to the unprecedented escalation of the use of the internet and its various technologies is also an escalation in what has been termed as cybercrimes. As noted in the 2010 Salvador Declaration on Comprehensive Strategies for Global Challenges, annexed to United Nations General Assembly resolution 65/230:chanRoblesVirtualawlibrary

[The] development of information and communications technologies and the increasing use of the Internet create new opportunities for offenders and facilitate the growth of crime.⁶⁰crallawlibrary

Also as observed elsewhere:chanRoblesVirtualawlibrary

Over the past few years, the global cyber crime landscape has changed dramatically, with criminals employing more sophisticated technology and greater knowledge of cyber security. Until recently, malware, spam emails, hacking into corporate sites and other attacks of this nature were mostly the work of computer ‘geniuses’ showcasing their talent. These attacks, which were rarely malicious, have gradually evolved into cyber crime syndicates siphoning off money through illegal cyber channels. By 2010, however, politically motivated cyber crime had penetrated global cyberspace. In fact, weaponry and command and control systems have also transitioned into the cyberspace to deploy and execute espionage and sabotage, as seen in the example of digital espionage attacks on computer networks at Lockheed Martin and NASA.⁶¹crallawlibrary

Computer-related criminal activity is not peculiar to the 21st century.⁶² One of the first reported “major” instances of cybercrime was in 2000 when the mass-mailed “I Love You” Worm (which originated from Pandacan, Manila)⁶³ “affected nearly 45 million computer users worldwide.”⁶⁴ This entailed as much as US$ 15 billion to repair the damage. Cyber attacks have morphed into myriad forms. The following is just a summary of some of the known attacks:⁶⁵crallawlibrary

Type of Attack	Details
Viruses and worms	Viruses and worms are computer programs that affect the storage devices of a computer or network, which then replicate information without the knowledge of the user.
Spam emails	Spam emails are unsolicited emails or junk newsgroup postings. Spam emails are sent without the consent of the receiver — potentially creating a wide range of problems if they are not filtered appropriately.
Trojan	A Trojan is a program that appears legitimate. However, once run, it moves on to locate password information or makes the system more vulnerable to future entry. Or a Trojan may simply destroy programs or data on the hard disk.
Denial-of-service (DoS)	DoS occurs when criminals attempt to bring down or cripple individual websites, computers or networks, often by flooding them with messages.
Malware	Malware is a software that takes control of any individual’s computer to spread a bug to other people’s devices or social networking profiles. Such software can also be used to create a ‘botnet’ — a network of computers controlled remotely by hackers, known as ‘herders,’ — to spread spam or viruses.
Scareware	Using fear tactics, some cyber criminals compel users to download certain software. While such software is usually presented as antivirus software, after some time, these programs start attacking the user’s system. The user then has to pay the criminals to remove such viruses.
Phishing	Phishing attacks are designed to steal a person’s login and password. For instance, the phisher can access the victims’ bank accounts or assume control of their social network.
Fiscal fraud	By targeting official online payment channels, cyber attackers can hamper processes such as tax collection or make fraudulent claims for benefits.
State cyber attacks	Experts believe that some government agencies may also be using cyber attacks as a new means of warfare. One such attack occurred in 2010, when a computer virus called Stuxnet was used to carry out an invisible attack on Iran’s secret nuclear program. The virus was aimed at disabling Iran’s uranium enrichment centrifuges.
Carders	Stealing bank or credit card details is another major cyber crime. Duplicate cards are then used to withdraw cash at ATMs or in shops.

The shift from wired to mobile devices has also brought with it the escalation of attacks on mobile devices. As reported by IT security group McAfee, “[t]he number of pieces of new mobile malware in 2010 increased by 46 percent compared with 2009.”⁶⁶ Hackers have also increased targeting mobile devices using Apple’s iOS and Google’s Android systems as these increased their market share. As McAfee put it, “cybercriminals are keeping tabs on what’s popular.”⁶⁷crallawlibrary

Cybercrimes come at tremendous costs. A report notes that “[i]n the US over the course of one year in 2009, the amount of information lost to cyber crime nearly doubled, from US$265 million in 2008 to US$560 million x x x.”⁶⁸ In the United Kingdom, the annual cost arising from cybercrime was estimated at GBP27 billion (US$ 43 billion). Of this amount, intellectual property theft accounts for GBP9.2 billion (US$ 14 billion), while espionage activities account for more than GBP7 billion (US$ 11 billion).⁶⁹ In Germany, a joint report by the information technology trade group Bitkom and the German Federal Criminal Police Office estimates phishing to have increased 70 percent year on year in 2010, resulting in a loss of as much as EUR 17 million (US$ 22 million).⁷⁰crallawlibrary

The costs in the Philippines are certainly present, but the revelation of its magnitude awaits research that may come as a result of the implementation of the Cybercrime Prevention Act of 2012.

Another report summarizes the costs to government as follows:⁷¹crallawlibrary

1.  Costs in anticipation of cyber crime

-  Security measures, such as antiviral software installation, cost of insurance and IT security standards maintenance.

2.  Costs as a consequence of cyber crime

-  Monetary losses to organizations, such as gaps in business continuity and losses due to IP theft.

3.  Costs in response to cyber crime

-  Paying regulatory fines and compensations to victims of identity theft, and cost associated with investigation of the crime.

4.  Indirect costs associated with cyber crime

-  Costs resulting from reputational damage to organizations and loss of confidence in cyber transactions.

The Challenges for
“Internet Governance”

All these have triggered spirited discussion on what has been termed as “internet governance” or “internet/cyberspace regulation.”

Particularly challenging are the “jurisdictional challenges that ‘virtual’ computer networks posed to territorially constituted nation states x x x.”⁷²John Perry Barlow, for example, proclaimed in his Declaration of the Independence of Cyberspace:chanRoblesVirtualawlibrary

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.⁷³crallawlibrary

Many have considered the internet as “ungovernable,”⁷⁴ having the ability to “undermine traditional forms of governance,”⁷⁵ and “radically subvert[ing] a system of rule-making based on borders between physical spaces, at least with respect to the claim that cyberspace should naturally be governed by territorially defined rules.”⁷⁶crallawlibrary

Adding to the complexity of internet regulation is the private character of the internet as manifested in: (1) the ownership and operation of internet infrastructure; and (2) the organizational framework of the internet. This private character, in turn, gives rise to pressing questions on legitimacy and accountability.

The United Nations Office on Drugs and Crime (UNODC) describes the private ownership and operation of internet infrastructure as follows:chanRoblesVirtualawlibrary

A significant proportion of internet infrastructure is owned and operated by the private sector. Internet access requires a “passive” infrastructure layer of trenches, ducts, optical fibre, mobile base stations, and satellite hardware. It also requires an ‘active’ infrastructure layer of electronic equipment, and a ‘service’ layer of content services and applications.

x x x x

As an infrastructure, the internet’s growth can be compared to the development of roads, railways, and electricity, which are dependent on private sector investment, construction and maintenance, but regulated and incentivized by national governments. At the same time, the internet is often regarded as more private-sector led.⁷⁷crallawlibrary

As to the organizational framework of the internet, a professor writes:chanRoblesVirtualawlibrary

As far as the organizational framework of the Internet is concerned, the present “system” is mainly designed by private bodies and organizations, i.e. a self-regulatory system applies in reality. Thereby, the key player is the Internet Corporation for Assigned Names and Numbers (ICANN), being in place since November 1998.⁷⁸crallawlibrary

There are private bodies and organizations that exist for the purpose of regulation. There are commercial entities - vendors and service providers - that emerge as de facto regulators. A noted expert observes that an increasing response has been the creation of devices and services which rely on a continuing relationship with vendors and service providers who are then accountable for ensuring security and privacy.⁷⁹ There is now a marked tendency to resort to “sterile appliances tethered to a network of control.”⁸⁰ This may stunt the very “capacity to produce unanticipated change through unfiltered contributions from broad and varied audiences.”⁸¹ It is these unanticipated changes which facilitated the internet’s rise to ubiquity.

The fear is that too much reliance on commercial vendors and their standards and technologies transfers control over the all important internet from innovation from varied sources. In a way, it stunts democratic creativity of an important media.

On the other end, states have consciously started more legal intervention. As observed by the United Nations Office on Drugs and Crime:chanRoblesVirtualawlibrary

Legal measures play a key role in the prevention and combating of cybercrime. Law is [a] dynamic tool that enables the state to respond to new societal and security challenges, such as the appropriate balance between privacy and crime control, or the extent of liability of corporations that provide services. In addition to national laws, at the international level, the law of nations - international law - covers relations between states in all their myriad forms. Provisions in both national laws and international law are relevant to cybercrime.⁸²crallawlibrary

At the normative level, legal measures address, if not negate, apprehensions of legitimacy, consent, and accountability. Functionally, legal measures are vital in:chanRoblesVirtualawlibrary

1. Setting clear standards of behavior for the use of computer devices;
   
   
2. Deterring perpetrators and protecting citizens;
   
   
3. Enabling law enforcement investigations while protecting individual privacy;
   
   
4. Providing fair and effective criminal justice procedures;
   
   
5. Requiring minimum protection standards in areas such as data handling and retention; and
   
   
6. Enabling cooperation between countries in criminal matters involving cybercrime and electronic evidence.⁸³crallawlibrary
   

In performing these functions, legal measures must adapt to emerging exigencies. This includes the emergence of a virtual, rather than physical, field of governance. It also includes specific approaches for specific acts and specific technologies. Effective internet governance through law cannot be approached too generally or in the abstract:chanRoblesVirtualawlibrary

The technological developments associated with cybercrime mean that - while traditional laws can be applied to some extent - legislation must also grapple with new concepts and objects, not traditionally addressed by law. In many states, laws on technical developments date back to the 19th century. These laws were, and to a great extent, still are, focused on physical objects - around which the daily life of industrial society revolved. For this reason, many traditional general laws do not take into account the particularities of information and information technology that are associated with cybercrime and crimes generating electronic evidence. These acts are largely characterized by new intangible objects, such as data or information.

x x x x

This raises the question of whether cybercrime should be covered by general, existing criminal law provisions, or whether new, computer-specific offences are required. The question cannot be answered generally, but rather depends upon the nature of individual acts, and the scope and interpretation of national laws.⁸⁴ (Emphasis provided)

The Lack of a Universal
Policy Consensus: Political
Nature of the Content of
Cybercrime Legislation

The description of the acts in cyberspace which relates to “new concepts and objects, not traditionally addressed by law”⁸⁵ challenges the very concept of crimes. This is of preeminent significance as there can be no crime where there is no law punishing an act (nullum crimen, nulla poena sine lege).⁸⁶crallawlibrary

The Comprehensive Study on Cybercrime prepared by UNODC for the Intergovernmental Expert Group on Cybercrime, February 2013, reports that a survey of almost 200 pieces of national legislation fails to establish a clear definition of cybercrime. If at all, domestic laws tend to evade having to use the term “cybercrime” altogether:chanRoblesVirtualawlibrary

Out of almost 200 items of national legislation cited by countries in response to the Study questionnaire, fewer than five per cent used the word “cybercrime” in the title or scope of legislative provisions. Rather, legislation more commonly referred to “computer crimes,” “electronic communications,” “information technologies,” or “high-tech crime.” In practice, many of these pieces of legislation created criminal offences that are included in the concept of cybercrime, such as unauthorized access to a computer system, or interference with a computer system or data. Where national legislation did specifically use cybercrime in the title of an act or section (such as “Cybercrime Act”), the definitional section of the legislation rarely included a definition for the word “cybercrime.” When the term “cybercrime” was included as a legal definition, a common approach was to define it simply as “the crimes referred to in this law.”⁸⁷crallawlibrary

International or regional legal instruments are also important for states because they articulate a consensus, established or emerging, among several jurisdictions. With respect to international or legal instruments however, the United Nations Office on Drugs and Crime notes the same lack of a conceptual consensus as to what makes cybercrimes:chanRoblesVirtualawlibrary

In a similar manner, very few international or regional legal instruments define cybercrime. Neither the Council of Europe Cybercrime Convention, the League of Arab States Convention, nor the Draft African Union Convention, for example, contains a definition of cybercrime for the purposes of the instrument. The Commonwealth of Independent States Agreement, without using the term “cybercrime,” defines an “offence relating to computer information” as a “criminal act of which the target is computer information.” Similarly, the Shanghai Cooperation Organization Agreement defines “information offences” as “the use of information resources and (or) the impact on them in the informational sphere for illegal purposes.”⁸⁸crallawlibrary

More than defining the term “cybercrime,” international legal instruments list acts which may be considered as falling under the broad umbrella of cybercrimes. As surveyed in 'The Comprehensive Study on Cybercrime prepared by UNODC for the Intergovernmental Expert Group on Cybercrime, February 2013,' there are sixteen (16) international or regional instruments which exist with the objective of countering cybercrime. The UNODC notes that nine (9) of these instruments are binding,⁸⁹ while seven (7) are non-binding.⁹⁰ In all, these instruments include a total of eighty-two (82) countries which have signed and/or ratified them. Of these, it is the Council of Europe Cybercrime Convention which has the widest coverage: Forty-eight (48) countries,⁹¹ including five (5) non-member states of the Council of Europe, have ratified and/or acceded to it. Other instruments have significantly smaller scopes. For example, the League of Arab States Convention only included eighteen (18) countries or territories; the Commonwealth of Independent States Agreement, with ten (10) countries; and the Shanghai Cooperation Organization Agreement, with six (6) countries.⁹²crallawlibrary

Surveying these sixteen (16) instruments, the United Nations Office on Drugs and Crime summarizes acts of cybercrimes vis-a-vis the instruments (and specific provisions of such instruments) covering each act as follows:chanRoblesVirtualawlibrary

Criminalized Act
	African Union93
	COMESA94
	The Commonwealth95
	Commonwealth of Independent States96
	Council of Europe (Budapest Convention)97
	Council of Europe (Lanzarote Convention)98
	ECOWAS99
	European Union (Framework Decision 2005/222/JHA)100
	European Union (Directive Proposal 2010/0273)101
	European Union       (Directive Framewrok Decision 2001/413/JHA)102
	European Union  (Directive 2011/92/EU and 2002/58/EC)103
	ITU / CARICOM / CTU    (Model Legislative Texts104
	League of Arab States (Convention)105
	League of Arab States (Model Law)106
	Shanghai Cooperation Organization107
	United Nations (CRC OP)108

1

Illegal access to a computer system

Art.       III (15)     III (16)

Art. 18 and 19

Art. 5 and 7

Art. 2

Art. 2 and 3

Art. 2(1)

Art. 3

Art. 4 and 5

Art. 6

Art. 3, 5, 15 and 22

2

Illegal access, interception or acquisition of computer data

Art. III (23)

Art. 19 and 21

Art. 5 and 8

Art. 3 (1) (a)

Art. 2 and 3

Art. 6

Art. 6

Art. 6 and 8

Art. 6, 7 and 18

Art. 3 and 8

3

Illegal intereference with computer data

Art. III (19), (20) and (24)

Art. 20 and 22(a)

Art. 6

Art. 3 (1) (c)

Art. 4

Art. 5 and 7

Art. 4

Art. 5

Art. 3

Art. 7

Art. 8

Art. 6

4

Illegal intereference with a computer system

Art. III (18) and (19)

Art. 22 (a)

Art. 7

Art. 3 (1) (c)

Art. 5

Art. 4

Art. 3

Art. 4

Art. 3

Art. 9

Art. 6

Art. 7

5

Computer misuse tools

Art. III (22)

Art. 22 (b) and (c)

Art. 9

Art. 3 (1) (b)

Art. 6

Art. 12

Art. 5

Art. 7

Art. 4

Art. 10

Art. 9

6

Breach of privacy or data protection measures

Art. III (27) and (54)

Art. 3

Art. 11

Art. 15 (a) (1)

7

Computer-related forgery

Art. III (24) and (25)

Art. 23

Art. 7

Art. 8

Art. 2 and 4

Art. 11

Art. 10 and 18

Art. 4

8

Computer-related fraud

Art. III (25), (26) and (41)

Art. 24 (a) and (b)

Art. 8

Art. 9, 10 and 23

Art. 2 and 4

Art. 12

Art. 11

Art. 10, 11 and 12

9

Electronic payment tools offenses

Art. 2

Art. 18

Art. 11

10

Identity-related crime

Art. 14

11

Computer-related copyright and trademark offenses

Art. 3 (1) (d)

Art. 10

Art. 17

Art. 14

12

Spam

Art. 19 (g)

Art. 13 (3)

Art. 15

13

Computer-related harassment, extortion or acts causing personal harm

Art. III (40) and (41)

Art. 25

Art. 18

Art. 9

14

Computer-related acts involving racism or xenophobia

Art. III (34), (35) and (36)

Art. 3, 4, 5 (OP)

Art. 18, 19 and 20

15

Computer-related denial or justification of genocide or crimes against humanity

Art. III (37)

Art. 6 (OP)

Art. 21

16

Computer-related production, distribution, or possession of child pornography

Art. III (29), (30), (31) and (32)

Art. 10

Art. 9

Art. 20

Art, 14, 15, 16 and 17

Art. 5

Art. 13

Art. 12

Art. 3

17

Computer-related solicitation or ‘grooming’ of children

Art. 23

Art. 6

18

Computer-related acts in support of terrorism

Art. III (40)

Art. 18, 19, 20 and 22 (a)

Art. 15

Art. 21

19

Computer-related offenses involving money laundering

Art. 15

Art. 19

20

Computer-related offenses involving illicit trafficking

Art. 16

Art. 17 and 18

21

Computer-related offenses against public order, morality or security

Art. 14, 15, 16 and 17

Art. 12, 13, 14 and 15

Art. 13, 16 and 20

22

Law enforcement investigation-related offenses

Art. III (54)

Art. 13 and 21

Art. 16 (3), 20 (3) and 21 (3)

Art. 16 and 17

Art. 23 (3), 28 (3) and 29 (3)

23

Aggravating circumstances for conventional crime committed by means of a computer system

Art. III (40)

Art. 22

Art. 21

24

Attempt and aiding or abetting

Art. 26

Art. 11 and 7 (OP)

Art. 24

Art. 8

25

Corporate liability

Art 27

Art. 12

Art. 26

Informed by the various approaches and challenges to defining cybercrime, 'The Comprehensive Study on Cybercrime prepared by UNODC for the Intergovernmental Expert Group on Cybercrime, February 2013' suggests that “cybercrime” is “best considered as a collection of acts or conduct.”¹⁰⁹ Thus, in a manner consistent with the approach adopted by international instruments such as the United Nations Convention Against Corruption,¹¹⁰ it “identifies a list, or ‘basket’, of acts which could constitute cybercrime.”¹¹¹ The list, however, is tentative and not exhaustive, provided “with a view to establishing a basis for analysis,”¹¹² rather than to “represent legal definitions.”¹¹³ These acts are “organized in three broad categories”,¹¹⁴ as follows:chanRoblesVirtualawlibrary

1. Acts against the confidentiality, integrity and availability of computer data or systems
   
   1. Illegal access to a computer system
      
      
   2. Illegal access, interception or acquisition of computer data
      
      
   3. Illegal interference with a computer system or computer data
      
      
   4. Production, distribution or possession of computer misuse tools
      
      
   5. Breach of privacy or data protection measures
      
   
   
2. Computer-related acts for personal or financial gain or harm
   
   1. Computer-related fraud or forgery
      
      
   2. Computer-related identity offences
      
      
   3. Computer-related copyright or trademark offences
      
      
   4. Sending or controlling sending of Spam
      
      
   5. Computer-related acts causing personal harm
      
      
   6. Computer-related solicitation or 'grooming' of children
      
   
   
3. Computer content-related acts
   
   
   1. Computer-related acts involving hate speech
      
      
   2. Computer-related production, distribution or possession of child pornography
      
      
   3. Computer-related acts in support of terrorism offences¹¹⁵

Apart from the conceptual and definitional mooring of cybercrimes, equally significant are the “procedural powers including search, seizure, orders for computer data, real-time collection of computer data, and preservation of data x x x.”¹¹⁶ As noted by the United Nations Office on Drugs and Crime, these procedural powers, along with the criminalization of certain acts and obligations for international cooperation, form the “core provisions” shared by international and legal instruments.¹¹⁷crallawlibrary

The United Nations Office on Drugs and Crime’s survey of key international and regional instruments summarizes each instrument’s provision of procedural powers as follows:chanRoblesVirtualawlibrary

Procedural Power
	African Union118
	COMESA119
	The Commonwealth120
	Commonwealth of Independent States121
	Council of Europe
	(Budapest Convention)122
	Council of Europe
	(Lanzarote Convention)123
	ECOWAS124
	European Union (Framework Decision 2005/222/JHA)125
	European Union (Directive Proposal 2010/0273)126
	European Union (Directive Framewrok Decision 2001/413/JHA)127
	European Union (Directive 2011/92/EU and 2002/58/EC)128
	ITU / CARICOM / CTU (Model Legislative Texts129
	League of Arab States (Convention)130
	League of Arab States (Model Law)131
	Shanghai Cooperation Organization132
	United Nations (CRC OP)133

1

Search for computer hardware or data

Art. III (50)

Art. 37 (a) and (b)

Art. 12

Art. 19 (1) and (2)

Art. 33

Art. 20

Art. 26

2

Seizure of computer hardware or data

Art. III (51)

Art. 37 (c)

Art. 12 and 14

Art. 19 (3)

Art. 33

Art. 20

Art. 27 (1)

3

Order for stored computer date

Art. 36 (a)

Art. 15

Art. 18 (1)(1)

Art. 22 (a)

Art. 25 (1)

4

Order for subscriber information

Art. 36 (b)

Art. 18 (1) (b)

Art. 22 (b)

Art. 25 (2)

5

Order for stored traffic data

Art. 34 (a) (ii)

Art. 16

Art. 17 (1) (b)

Art. 24

Art. 24

6

Real-time collection of traffic data

Art. 38

Art. 19

At. 20

Art. 25

Art. 28

7

Real-time collection of content-data

Art. III (55)

Art. 39

Art. 18

Art. 21

Art. 26

Art. 29

8

Expedited preservation of computer-data

Art. III (53)

Art. 33, 34 (a) (i) and 35

Art. 17

Art. 16, 17 (1) (a)

Art. 33

Art. 23

Art. 23 (2)

9

Use of (remote) forensic tools

Art. 30 (5)

Art. 15

Art. 27

10

Trans-border access to computer data

Art. 49 (b)

Art. 32 (b)

Art. 40 (2)

11

Provision of assistance

Art. 37 (d)

Art. 13

Art. 19 (4)

Art. 21

Art. 27 (2)

12

Retention of computer data

Art. 29, 30 and 31

Art. 3 and 6

In the Philippines, Republic Act No. 10175 adopts an approach which is similar to the UNODC’s appreciation of cybercrimes as a “collection of acts or conduct.” We have thus transplanted some of the provisions that are still part of an emerging consensus. Thus, the Cybercrime Prevention Act of 2012 in question provides for the following “basket” of punishable acts:chanRoblesVirtualawlibrary

CHAPTER II

PUNISHABLE ACTS

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibrary

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:chanRoblesVirtualawlibrary

(1)  Illegal Access. - The access to the whole or any part of a computer system without right.

(2)  Illegal Interception. - The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

(3)  Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

(4)  System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

(5)  Misuse of Devices.

(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:chanRoblesVirtualawlibrary

(aa) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or

(bb) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.

(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.

(6)  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:chanRoblesVirtualawlibrary

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

(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.

(b)  Computer-related Offenses:chanRoblesVirtualawlibrary

(1)  Computer-related Forgery. —

(i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or

(ii) The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design.

(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(3) Computer-related Identity Theft. - The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(c) Content-related Offenses:chanRoblesVirtualawlibrary

(1)  Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

(2)  Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

(3)  Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless:chanRoblesVirtualawlibrary

(i)   There is prior affirmative consent from the recipient; or

(ii)  The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

(iii)   The following conditions are present:chanRoblesVirtualawlibrary

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

(4)  Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:chanRoblesVirtualawlibrary

(a) 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.

(b)  Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

No Actual Controversy

The overview of the internet and the context of cyberspace regulation should readily highlight the dangers of proceeding to rule on the constitutional challenges presented by these consolidated petitions barren of actual controversies. The platforms and technologies that move through an ever expanding network of networks are varied. The activities of its users, administrators, commercial vendors, and governments are also as complex as they are varied.

The internet continues to grow. End User License Agreements (EULA) of various applications may change its terms based on the feedback of its users. Technology may progress to ensure that some of the fears that amount to a violation of a constitutional right or privilege will be addressed. Possibly, the violations, with new technologies, may become more intrusive and malignant than jurisprudential cures that we can only imagine at present.

All these point to various reasons for judicial restraint as a natural component of judicial review when there is no actual case. The court’s power is extraordinary and residual. That is, it should be invoked only when private actors or other public instrumentalities fail to comply with the law or the provisions of the Constitution. Our faith in deliberative democracy requires that we presume that political forums are as competent to read the Constitution as this court.

Also, the court’s competence to deal with these issues needs to evolve as we understand the context and detail of each technology implicated in acts that are alleged to violate law or the Constitution. The internet is an environment, a phenomenon, a network of complex relationships and, thus, a subject that cannot be fully grasped at first instance. This is where adversarial positions with concrete contending claims of rights violated or duties not exercised will become important. Without the benefit of these adversarial presentations, the implications and consequences of judicial pronouncements cannot be fully evaluated.

Finally, judicial economy and adjudicative pragmatism requires that we stay our hand when the facts are not clear. Our pronouncements may not be enough or may be too detailed. Parties might be required to adjudicate again. Without an actual case, our pronouncements may also be irrelevant to the technologies and relationships that really exist. This will tend to undermine our own credibility as an institution.

We are possessed with none of the facts. We have no context of the assertion of any right or the failure of any duty contained in the Constitution. To borrow a meme that has now become popular in virtual environments: We cannot be asked to doubt the application of provisions of law with most of the facts in the cloud.

III

Limited Exception: Overbreadth Doctrine

There is, however, a limited instance where facial review of a statute is not only allowed but essential: when the provision in question is so broad that there is a clear and imminent threat that actually operates or it can be used as a prior restraint of speech. This is when there can be an invalidation of the statute “on its face” rather than “as applied.”

The use of the doctrine gained attention in this jurisdiction within a separate opinion by Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources,¹³⁴ thus:chanRoblesVirtualawlibrary

The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. Invalidation of the statute “on its face” rather than “as applied” is permitted in the interest of preventing a “chilling” effect on freedom of expression. But in other cases, even if it is found that a provision of a statute is unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far inseparable from the rest of the statute that a declaration of partial invalidity is not possible.¹³⁵ (Emphasis supplied)

The doctrine was again revisited in the celebrated plunder case of former President Joseph Estrada, when Justice Mendoza, in his concurring opinion, explained at length when a facial challenge may be allowed:chanRoblesVirtualawlibrary

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” In Broadrick v. Oklahoma, the Court ruled that “claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words” and, again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” For this reason, it has been held that “a facial challenge to a legislative Act is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing “on their faces” statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” As has been pointed out, “vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] ‘as applied’ to a particular defendant.”Consequently, there is no basis for petitioner’s claim that this Court review the Anti-Plunder Law on its face and in its entirety.¹³⁶crallawlibrary

The overbreadth doctrine in the context of a facial challenge was refined further in David v. Arroyo,¹³⁷ where this court speaking through Justice Sandoval-Gutierrez disallowed petitioners from challenging Proclamation No. 1017 on its face for being overbroad. In doing so, it laid down the guidelines for when a facial challenge may be properly brought before this court, thus:chanRoblesVirtualawlibrary

First and foremost, the overbreadth doctrine is an analytical tool developed for testing “on their faces” statutes in free speech cases, also known under the American Law as First Amendment cases.

xxxx

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that “reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.” x x x

x x x x

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only “spoken words” and again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly and only as a last resort,” and is “generally disfavored;” The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in Constitutional Law explains further:chanRoblesVirtualawlibrary

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face,” not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling;” deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris, it was held that:chanRoblesVirtualawlibrary

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists.¹³⁸ (Emphasis originally provided)

The Mendoza opinion, however, found its way back into the legal spectrum when it was eventually adopted by this court in the cases of Romualdez v. Sandiganbayan¹³⁹ and Romualdez v. Commission on Elections.¹⁴⁰ Upon motion for reconsideration in Romualdez v. Commission on Elections,¹⁴¹ however, this court revised its earlier pronouncement that a facial challenge only applies to free speech cases, thereby expanding its scope and usage. It stated that:chanRoblesVirtualawlibrary

x x x The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge.¹⁴²crallawlibrary

However, the latest pronouncement of this court on the doctrine was the case of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council.¹⁴³ In it, this court, while reiterating Justice Mendoza’s opinion as cited in the Romualdez cases, explained further the difference between a “facial” challenge and an “as applied” challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.

Justice Mendoza accurately phrased the subtitle in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling effect” on protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an “in terrorem effect” in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.

The Court reiterated that there are “critical limitations by which a criminal statute may be challenged” and “underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed.”

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

x x x x

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the “transcendent value to all society of constitutionally protected expression.”¹⁴⁴ (Emphasis and underscoring originally supplied)

Test for Allowable Facial Review

In my view, the prevailing doctrine now is that a facial challenge only applies to cases where the free speech and its cognates are asserted before the court. While as a general rule penal statutes cannot be subjected to facial attacks, a provision in a statute can be struck down as unconstitutional when there is a clear showing that there is an imminent possibility that its broad language will allow ordinary law enforcement to cause prior restraints of speech and the value of that speech is such that its absence will be socially irreparable.

This, therefore, requires the following:chanRoblesVirtualawlibrary

First, the ground for the challenge of the provision in the statute is that it violates freedom of expression or any of its cognates;

Second, the language in the statute is impermissibly vague;

Third, the vagueness in the text of the statute in question allows for an interpretation that will allow prior restraints;

Fourth, the “chilling effect” is not simply because the provision is found in a penal statute but because there can be a clear showing that there are special circumstances which show the imminence that the provision will be invoked by law enforcers;

Fifth, the application of the provision in question will entail prior restraints; and

Sixth, the value of the speech that will be restrained is such that its absence will be socially irreparable. This will necessarily mean balancing between the state interests protected by the regulation and the value of the speech excluded from society.

III (B)

Reason for the Doctrine

The reason for this exception can be easily discerned.

The right to free speech and freedom of expression take paramount consideration among all the rights of the sovereign people. In Philippine Blooming Mills Employment Organization et al. v. Philippine Blooming Mills, Co. Inc.,¹⁴⁵ this court discussed this hierarchy at length:chanRoblesVirtualawlibrary

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be ”protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person.”

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security ”against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles.”

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw ”certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Laski proclaimed that ”the happiness of the individual, not the well-being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to exercise.”

(3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen. And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not safe unless the liberties of all are protected.

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man’s enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Because these freedoms are ”delicate and vulnerable, as well as supremely precious in our society” and the ”threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they ”need breathing space to survive,” permitting government regulation only ”with narrow specificity.”

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority ”gives these liberties the sanctity and the sanction not permitting dubious intrusions.”

The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent.¹⁴⁶ (Citations omitted)

The right to freedom of expression is a primordial right because it is not only an affirmation but a positive execution of the basic nature of the state defined in Article II, Section 1 of the 1987 Constitution:chanRoblesVirtualawlibrary

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

The power of the State is derived from the authority and mandate given to it by the people, through their representatives elected in the legislative and executive branches of government. The sovereignty of the Filipino people is dependent on their ability to freely express themselves without fear of undue reprisal by the government. Government, too, is shaped by comments and criticisms of the various publics that it serves.

The ability to express and communicate also defines individual and collective autonomies. That is, we shape and refine our identity and, therefore, also our thoughts as well as our viewpoints through interaction with others. We choose the modes of our expression that will also affect the way that others receive our ideas. Thoughts remembered when expressed with witty eloquence are imbibed through art. Ideas, however, can be rejected with a passion when expressed through uncouth caustic verbal remarks or presented with tasteless memes. In any of these instances, those who receive the message see the speaker in a particular way, perhaps even belonging to a category or culture.

Furthermore, what we learn from others bears on what we think as well as what and how we express. For the quality of our own expression, it is as important to tolerate the expression of others.

This fundamental and primordial freedom has its important inherent and utilitarian justifications. With the imminent possibility of prior restraints, the protection must be extraordinarily vigilant.

In Chavez v. Gonzales,¹⁴⁷ the court elaborated further on the primacy of the right to freedom of speech:chanRoblesVirtualawlibrary

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well - if not more - to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution’s basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. (Citations omitted) ¹⁴⁸crallawlibrary

A facial challenge, however, can only be raised on the basis of overbreadth, not vagueness. Vagueness relates to a violation of the rights of due process. A facial challenge, on the other hand, can only be raised on the basis of overbreadth, which affects freedom of expression.

Southern Hemisphere provided the necessary distinction:chanRoblesVirtualawlibrary

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.¹⁴⁹crallawlibrary

The facial challenge is different from an “as-applied” challenge or determination of a penal law. In an “as-applied” challenge, the court undertakes judicial review of the constitutionality of legislation “as applied” to particular facts, parties or defendants and on a case-to-case basis. In a challenge “as applied,” the violation also involves an abridgement of the due process clause. In such instances, the burden of the petitioner must be to show that the only reasonable interpretation is one that is arbitrary or unfair.

III (D)

“Chilling Effect”

In the petitions before this court, the facial challenge can be used but only insofar as those provisions that are so broad as to ordinarily produce a “chilling effect” on speech.

We have transplanted and adopted the doctrine relating to “chilling effects” from the jurisprudence of the United States Supreme Court. The evolution of their doctrine, therefore, should be advisory but not binding for this court.

The concept of a “chilling effect” was first introduced in the case of Wieman v. Updegraff.¹⁵⁰ In that case, the United States Supreme Court declared as unconstitutional Oklahoma state legislature which authorized the docking of salaries of employees within the state who failed to render a “loyalty oath” disavowing membership in communist organizations. The validity of the Oklahama state legislature included teachers in public schools who alleged violations of the Due Process Clause. In his concurring opinion, Justice Frankfurter first introduced the concept of a “chilling effect,” stating:chanRoblesVirtualawlibrary

By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.¹⁵¹crallawlibrary

The concept of a “chilling effect” was further elaborated in the landmark case of New York Times v. Sullivan:¹⁵²crallawlibrary

We should be particularly careful, therefore, adequately to protect the liberties which are embodied in the First and Fourteenth Amendments. It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished. Cf. Farmers Educational & Coop. Union v. WDAY, Inc., 360 U.S. 525, 530. The opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations. The American Colonists were not willing, nor should we be, to take the risk that ”[m]en who injure and oppress the people under their administration [and] provoke them to cry out and complain” will also be empowered to ”make that very complaint the foundation for new oppressions and prosecutions.” The Trial of John Peter Zenger, 17 Howell’s St. Tr. 675, 721-722 (1735) (argument of counsel to the jury). To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect ”the obsolete doctrine that the governed must not criticize their governors.” Cf. Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458.¹⁵³crallawlibrary

In National Association for the Advancement of Colored People v. Button,¹⁵⁴ the United States Supreme Court categorically qualified the concept of a “chilling effect”:chanRoblesVirtualawlibrary

Our concern is with the impact of enforcement of Chapter 33 upon First Amendment freedoms.

x x x x

For, in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98; Winters v. New York, supra,at 333 U. S. 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. It makes no difference that the instant case was not a criminal prosecution, and not based on a refusal to comply with a licensing requirement. The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Marcus v. Search Warrant, 367 U. S. 717, 367 U. S. 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, at 361 U. S. 151-154; Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296, 3 310 U. S. 11. (Emphasis supplied)¹⁵⁵crallawlibrary

Philippine jurisprudence has incorporated the concept of a “chilling effect,” but the definition has remained abstract. In Chavez v. Gonzales,¹⁵⁶ this court stated that a “chilling effect” took place upon the issuance of a press release by the National Telecommunications Commission warning radio and television broadcasters from using taped conversations involving former President Gloria Macapagal-Arroyo and the allegations of fixing elections:chanRoblesVirtualawlibrary

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.¹⁵⁷crallawlibrary

Taking all these into consideration, as mentioned earlier, a facial attack of a provision can only succeed when the basis is freedom of expression, when there is a clear showing that there is an imminent possibility that its broad language will allow ordinary law enforcement to cause prior restraints of speech, and when the value of that speech is such that its absence will be socially irreparable.

Among all the provisions challenged in these consolidated petitions, there are only four instances when the “chilling effect” on speech can be palpable: (a) the “take down” provision; (b) the provision on cyber libel; (c) the provision on cybersex; and (d) the clause relating to unbridled surveillance of traffic data. The provisions that provide for higher penalties for these as well as for dual prosecutions should likewise be declared unconstitutional because they magnify the “chilling effect” that stifles protected expression.

For this reason alone, these provisions and clauses are unconstitutional.

IV

The “Take Down” Clause

Section 19 of Republic Act No. 10175 is unconstitutional because it clearly allows prior restraint. This section provides:chanRoblesVirtualawlibrary

SEC. 19. Restricting or Blocking Access to Computer Data — When a 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.

Among all the provisions, this is the sole provision that the Office of the Solicitor General agrees to be declared as unconstitutional.

IV (A)

A Paradigmatic Example of Prior Restraint

There is no doubt of the “chilling effect” of Section 19 of Republic Act No. 10175. It is indeed an example of an instance when law enforcers are clearly invited to do prior restraints within vague parameters. It is blatantlyunconstitutional.

Chavez v. Gonzales presents a clear and concise summary of the doctrines governing prior restraint:chanRoblesVirtualawlibrary

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid, and ”any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,” it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.

As worded, Section 19 provides an arbitrary standard by which the Department of Justice may exercise this power to restrict or block access. A prima facie finding is sui generis and cannot be accepted as basis to stop speech even before it is made. It does not provide for judicially determinable parameters. It, thus, ensures that all computer data will automatically be subject to the control and power of the Department of Justice. This provision is a looming threat that hampers the possibility of free speech and expression through the internet. The sheer possibility that the State has the ability to unilaterally decide whether data, ideas or thoughts constitute evidence of a prima facie commission of a cybercrime will limit the free exchange of ideas, criticism, and communication that is the bulwark of a free democracy.

There is no question that Section 19 is, thus, unconstitutional.

V

Cyber Libel

Also unconstitutional is Section 4(c)(4) which reads:chanRoblesVirtualawlibrary

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibrary

x x x x

(c) Content-related Offenses:chanRoblesVirtualawlibrary

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

The intent of this provision seems to be to prohibit the defense that libel committed through the use of a computer is not punishable. Respondents counter that, to date, libel has not been declared unconstitutional as a violation of the rights to free speech, freedom of expression, and of the press.

Reference to Article 355 of the Revised Penal Code in Section 4(c)(4) resulted in the implied incorporation of Articles 353 and 354 as well. Articles 353 to 355 of the Revised Penal Code provide:chanRoblesVirtualawlibrary

Title Thirteen

CRIMES AGAINST HONOR

Chapter One

LIBEL

Section One. — Definitions, forms, and punishment of this crime.

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:chanRoblesVirtualawlibrary

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

The ponencia claims that “libel is not a constitutionally protected speech” and “that government has an obligation to protect private individuals from defamation.”¹⁵⁸crallawlibrary

I strongly dissent from the first statement. Libel is a label that is often used to stifle protected speech. I agree with the second statement but only to the extent that defamation can be protected with civil rather than criminal liabilities.

Given the statutory text, the history of the concept of criminal libel and our court’s experience with libel, I am of the view that its continued criminalization especially in platforms using the internet unqualifiedly produces a “chilling effect” that stifles our fundamental guarantees of free expression. Criminalizing libel contradicts our notions of a genuinely democratic society.

V (B)

As Currently Worded, Libel is Unconstitutional

The crime of libel in its 1930 version in the Revised Penal Code was again reenacted through the Cybercrime Prevention Act of 2012. It simply added the use of the internet as one of the means to commit the criminal acts. The reenactment of these archaic provisions is unconstitutional for many reasons. At minimum, it failed to take into consideration refinements in the interpretation of the old law through decades of jurisprudence. It now stands starkly in contrast with the required constitutional protection of freedom of expression.

The ponencia fails to account for the evolution of the requirement of malice in situations involving public officers and public figures. At best, the majority will have us believe that jurisprudence can be read into the current text of the libel law as referred to in the Cybercrime Prevention Act of 2012.

However, this does not appear to be the intent of the legislature based on the text of the provision. Congress reenacted the provisions defining and characterizing the crime of libel as it was worded in 1930. I concur with Justice Carpio’s observations that the law as crafted fails to distinguish the malice requirement for criticisms of public officers (and public figures) on the one hand and that for ordinary defamation of private citizens carefully crafted by jurisprudence. Understandably, it creates doubt on the part of those who may be subject to its provisions. The vagueness of the current text, reenacted by reference by Rep. Act No. 10175 is as plain as day.

It is difficult to accept the majority’s view that present jurisprudence is read into the present version of the law. This is troubling as it is perplexing. The majority of the 200 plus members of the House of Representatives and the 24 Senators chose the old text defining the crime of libel. The old text does not conform to the delicate balance carved out by jurisprudence. Just the sheer number of distinguished and learned lawyers in both chambers would rule out oversight or negligence. As representatives of our people, they would have wanted the crime to be clearly and plainly spelled out so that the public will be properly informed. They could not have wanted the ordinary Filipino to consult the volumes of Philippine Reports in order to find out that the text did not mean plainly what it contained before they exercised their right to express.

It is, thus, reasonable to presume that Congress insists on the plain meaning of the old text. Possibly, through inaction, they would replace jurisprudential interpretation of the freedom of expression clause in relation to defamation by reenacting the same 1930 provisions.

V (C)

Negating the Balance Struck
Through Jurisprudence

A survey of these constant efforts in jurisprudence to qualify libel as provided in the old statute is needed to understand this point.

United States v. Bustos¹⁵⁹ interpreted the requirement of malice for libel under Act No. 277.¹⁶⁰ This court ruled that “malice in fact” is required to sustain a conviction under the law when there are “justifiable motives present” in a case. Thus:chanRoblesVirtualawlibrary

In an action for libel suppose the defendant fails to prove that the injurious publication or communication was true. Can he relieve himself from liability by showing that it was published with ”justifiable motives” whether such publication was true or false or even malicious? There is no malice in law when ”justifiable motives” exist, and, in the absence of malice, there is no libel under the law. (U. S. vs. Lerma, supra.) But if there is malice in fact, justifiable motives can not exist. The law will not allow one person to injure another by an injurious publication, under the cloak of ”good ends” or ”justifiable motives,” when, as a matter of fact, the publication was made with a malicious intent. It is then a malicious defamation. The law punishes a malicious defamation and it was not intended to permit one to maliciously injure another under the garb of ”justifiable motives.” When malice in fact is shown to exist the publisher can not be relieved from liability by a pretense of ”justifiable motives.” Section 3 relieves the plaintiff from the necessity of proving malice simply when no justifiable motives are shown, but it does not relieve the defendant from liability under the guise of ”justifiable motives” when malice actually is proved. The defense of ”the truth” of the ”injurious publication” (sec. 4) and its character as a privileged communication (sec. 9) means nothing more than the truth in one instance and the occasion of making it in the other together with proof of justifiable motive, rebuts the prima facie inference of malice in law and throws upon the plaintiff or the State, the onus of proving malice in fact. The publication of a malicious defamation, whether it be true or not, is clearly an offense under Act No. 277.¹⁶¹ (Emphasis supplied)

Actual malice as a requirement evolved further.

It was in the American case of New York Times Co. v. Sullivan,¹⁶² which this court adopted later on,¹⁶³ that the “actual malice”¹⁶⁴ requirement was expounded and categorically required for cases of libel involving public officers. In resolving the issue of “whether x x x an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments”,¹⁶⁵ the New York Times case required that actual malice should be proven when a case for defamation “includes matters of public concern, public men, and candidates for office.”¹⁶⁶ Thus:chanRoblesVirtualawlibrary

Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ”was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484.

The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.

x x x x

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252.This is true even though the utterance contains ”half-truths” and ”misinformation.” Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367; Wood v. Georgia, 370 U.S. 375. If judges are to be treated as ”men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, 331 U.S. at 376, surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations. Stromberg v. California, 283 U.S. 359, 369.¹⁶⁷ (Emphasis supplied)

Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M. Capulong,¹⁶⁸ as affirmed in the case of Borjal v. Court of Appeals,¹⁶⁹ adopted the doctrine in New York Times to “public figures.” In Ayer Productions:chanRoblesVirtualawlibrary

A limited intrusion into a person’s privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. Succinctly put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern.¹⁷⁰crallawlibrary

Public figures were defined as:chanRoblesVirtualawlibrary

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscriminately, in the decisions” that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. ”News” includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definition of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and other crimes, arrests and police raids, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt.¹⁷¹ (Emphasis supplied)

This doctrine was reiterated in Vasquez v. Court of Appeals.¹⁷² Petitioner was charged with libel for allegedly defaming his Barangay Chairperson in an article published in the newspaper, Ang Tinig ng Masa. Petitioner allegedly caused the dishonor and discredit of the Barangay Chairperson through the malicious imputation that the public officer landgrabbed and that he was involved in other illegal activities. In acquitting the petitioner:chanRoblesVirtualawlibrary

The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends.

x x x x

In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends.

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. This is the rule of “actual malice.”

A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, “public discussion is a political duty” and the “greatest menace to freedom is an inert people.”¹⁷³ (Emphasis supplied)

Guingguing v. Court of Appeals¹⁷⁴ involved the publication of information on private complainant’s criminal cases including photographs of him being arrested. This court again reiterated:chanRoblesVirtualawlibrary

[Article 354 of the Revised Penal Code], as applied to public figures complaining of criminal libel, must be construed in light of the constitutional guarantee of free expression, and this Court’s precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous. The provision itself allows for such leeway, accepting as a defense “good intention and justifiable motive.” The exercise of free expression, and its concordant assurance of commentary on public affairs and public figures, certainly qualify as “justifiable motive,” if not “good intention.”

x x x x

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even expression in its most unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist interpretation of the free speech clause, if only because it prevents the proliferation of untruths which if unrefuted, would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate might be muted due to the reckless enforcement of libel laws, truth has been sanctioned as a defense, much more in the case when the statements in question address public issues or involve public figures.¹⁷⁵ (Emphasis supplied)

In Villanueva v. Philippine Daily Inquirer, Inc.,¹⁷⁶ despite the respondents’ false reporting, this court continued to apply the actual malice doctrine that evolved from Ayer Productions. Hence:chanRoblesVirtualawlibrary

A newspaper, especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for malice or damages, i.e. libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.¹⁷⁷crallawlibrary

Overbreadth by Reenactment

With the definite evolution of jurisprudence to accommodate free speech values, it is clear that the reenactment of the old text of libel is now unconstitutional. Articles 353, 354, and 355 of the Revised Penal Code — and by reference, Section 4(c)4 of the law in question — are now overbroad as it prescribes a definition and presumption that have been repeatedly struck down by this court for several decades.

A statute falls under the overbreadth doctrine when “a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”¹⁷⁸ Section 4(c)(4) of Rep. Act No. 10175 and Articles 353, 354, and 355 produce a chilling effect on speech by being fatally inconsistent with Ayer Productions as well as by imposing criminal liability in addition to civil ones. Not only once, but several times, did this court uphold the freedom of speech and expression under Article III, Section 4 of the 1987 Constitution¹⁷⁹ over an alleged infringement of privacy or defamation. This trend implies an evolving rejection of the criminal nature of libel and must be expressly recognized in view of this court’s duty to uphold the guarantees under the Constitution.

The threat to freedom of speech and the public’s participation in matters of general public interest is greater than any satisfaction from imprisonment of one who has allegedly “malicious[ly] imput[ed] x x x a crime, or x x x a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or xxx blacken[ed] the memory of [the] dead.”¹⁸⁰ The law provides for other means of preventing abuse and unwarranted attacks on the reputation or credibility of a private person. Among others, this remedy is granted under the Chapter on Human Relations in the Civil Code, particularly Articles 19,¹⁸¹ 20,¹⁸² 21,¹⁸³ and even 26.¹⁸⁴There is, thus, no cogent reason that a penal statute would overbroadly subsume the primordial right of freedom of speech provided for in the Constitution.

V (E)

Dangers to Protected Speech Posed by Libel
Exacerbated in the Internet

The effect on speech of the dangerously broad provisions of the current law on libel is even more palpable in the internet.

Libel under Article 353 is textually defined as the:chanRoblesVirtualawlibrary

x x x public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (Emphasis supplied)

Social media allows users to create various groups of various sizes. Some of these sites are for specific purposes. Others are only open to a select group of “friends” or “followers”. The ponencia’s distinction between the author and those who share (or simply express their approval) of the posted message oversimplifies the phenomenon of exchanges through these sites.

Social media or social networking sites are websites that primarily exist to allow users to post a profile online and exchange or broadcast messages and information with their friends and contacts.¹⁸⁵crallawlibrary

Social media or social networking as it is used today began in the United States in 1994 when Beverly Hills Internet created the online community known as Geocities.¹⁸⁶ In Geocities, individuals were able to design custom-made websites using hypertext mark-up language or HTML and upload content online. This community then paved the way for widespread online interaction, leading to the inception of America Online’s Instant Messenger, where subscribers of the internet service provider could send real-time exchanges through the network. This led to the prevalence of instant messaging applications such as ICQ and online chatrooms such as mIRC.¹⁸⁷ In 1999, British website Friends Reunited was the first popular online hub whose primary purpose was to allow users to interact and reconnect with former classmates through the internet.¹⁸⁸ Friendster, launched in 2002, became one the first and largest online social networking sites, reaching up to 117 million users before its decline.¹⁸⁹ The site was dedicated to connecting with as many people as possible, without a need for prior physical contact or established relationships. MySpace, another social networking site launched in 2003, garnered more visitors than popular search engine sites Google and Yahoo in 2006.¹⁹⁰ These online social networking sites have had several popular iterations such as Multiply, LiveJournal or Blogger, which serve as venues for individuals who wish to post individual journal entries, photographs or videos.

Today, the most popular social networking sites are Facebook and Twitter. Facebook, which was initially known as Facesmash for exclusive use of Harvard University students and alumni, began in 2003. Eventually, Facebook became the most prevalent and ubiquitous online social networking site, with some 750 million users worldwide, as of July 2011.¹⁹¹crallawlibrary

Twitter gained popularity immediately after its founding in 2006. It gained prominence by positioning itself as a real-time information network while allowing ease of access and immediate sharing to an expanding set of users. To date, Twitter has about 750 million registered users, with about 200 million users making use of the platform on a regular basis.¹⁹² In its latest initial public offering, Twitter disclosed that there are over 500 million tweets (messages with a140-character limit) made in a day.¹⁹³crallawlibrary

The most recent social networking phenomenon is Instagram, which was launched in October 2010. This application allows instantaneous sharing of photographs especially through smartphones. Today, Instagram has 150 million active users and with over 1.5 billion “likes” of photos shared on the network every day.¹⁹⁴crallawlibrary

These platforms in social media allow users to establish their own social network. It enables instantaneous online interaction, with each social networking platform thriving on its ability to engage more and more users. In order to acquire more users, the owners and developers of these social media sites constantly provide their users with more features, and with more opportunities to interact. The number of networks grows as each participant is invited to bring in more of their friends and acquaintances to use the platforms. Social media platforms, thus, continue to expand in terms of its influence and its ability to serve as a medium for human interaction. These also encourage self-expression through words, pictures, video, and a combination of these genres.

There can be personal networks created through these platforms simply for conversations among friends. Like its counterpart in the real world, this can be similar to a meeting over coffee where friends or acquaintances exchange views about any and all matters of their interest. In normal conversation, the context provided by the participants’ relationships assure levels of confidence that will allow them to exchange remarks that may be caustic, ironic, sarcastic or even defamatory.

With social media, one’s message in virtual conversations may be reposted and may come in different forms. On Facebook, the post can be “shared” while on Twitter, the message can be “retweeted.” In these instances, the author remains the same but the reposted message can be put in a different context by the one sharing it which the author may not have originally intended. The message that someone is a thief and an idiot in friendly and private conversation when taken out of that context will become defamatory. This applies regardless of the standing of the subject of conversation: The person called a thief and an idiot may be an important public figure or an ordinary person.

The ponencia proposes to exonerate the user who reposts but maintain the liability of the author. This classification is not clear anywhere in the text of the law. Parenthetically, whether calling someone a thief or an idiot is considered defamatory is not also clear in the text of the law.

Even if we assume arguendo that this is a reasonable text-based distinction, the result proposed by the majority does not meet the proposed intent of the law. Private individuals (as opposed to public officials or figures) are similarly maligned by reposts.

This shows the arbitrariness of the text of the law as well as the categorization proposed by the ponencia. It leaves too much room for the law enforcer to decide which kinds of posts or reposts are defamatory. The limits will not be clear to the speaker or writer. Hence, they will then limit their expression or stifle the sharing of their ideas. They are definite victims of the chilling effect of the vagueness of the provisions in question.

The problem becomes compounded with messages that are reposted with or without comment. The following tweets are examples which will provide the heuristic to understand the problem:chanRoblesVirtualawlibrary

Form A: “@marvicleonen: RT @somebody: Juan is a liar, a thief and an idiot” #thetruth

Form B: “@marvicleonen: This! RT @somebody: Juan is a liar, a thief and an idiot” #thetruth

Both are posts from a user with the handle @marvicleonen. RT means that the following message was only reposted (retweeted), and the hashtag #thetruth is simply a way of categorizing one’s messages. The hashtag itself may also contain speech elements.

Form A is a simple repost. The reasons for reposting are ambiguous. Since reposting is only a matter of a click of a button, it could be that it was done without a lot of deliberation. It is also possible that the user agreed with the message and wanted his network to know of his agreement. It is possible that the user also wanted his network to understand and accept the message.

Form B is a repost with a comment “This!”. While it may be clearer that there is some deliberation in the intent to share, it is not clear whether this is an endorsement of the statement or simply sarcasm. This form is not part of the categorization proposed by the ponencia.

There are other permutations as there are new platforms that continue to emerge. Viber and WhatsApp for instance now enable SMS users to create their own network.

There are other problems created by such broad law in the internet. The network made by the original author may only be of real friends of about 10 people. The network where his or her post was shared might consist of a thousand participants. Again, the current law on libel fails to take these problems of context into consideration.

A post, comment or status message regarding government or a public figure has the tendency to be shared. It easily becomes “viral.” After all, there will be more interest among those who use the internet with messages that involve issues that are common to them or are about people that are known to them—usually public officers and public figures. When the decision in this case will be made known to the public, it is certain to stimulate internet users to initially post their gut reactions. It will also entice others to write thought pieces that will also be shared among their friends and followers.

Then, there is the problem of extraterritoriality and the evils that it spawns on speech. Enforcement of the crime of libel will be viable only if the speaker is within our national territory. Those residing in other countries are beyond our jurisdiction. To be extradited, they will have to have laws similar to ours. If they reside in a state different from our 1930 version of libel, then we will have the phenomenon of foreigners or expatriates having more leeway to criticize and contribute to democratic exchanges than those who have stayed within our borders.

The broad and simplistic formulation now in Article 353 of the Revised Penal Code essential for the punishment of cyber libel can only cope with these variations produced by the technologies in the internet by giving law enforcers wide latitude to determine which acts are defamatory. There are no judicially determinable standards. The approach will allow subjective case-by-case ad hoc determination. There will be no real notice to the speaker or writer. The speaker or writer will calibrate speech not on the basis of what the law provides but on who enforces it.

This is quintessentially the chilling effect of this law.

The threat of being prosecuted for libel stifles the dynamism of the conversations that take place in cyberspace. These conversations can be loose yet full of emotion. These can be analytical and the product of painstaking deliberation. Other conversations can just be exponential combinations of these forms that provide canisters to evolving ideas as people from different communities with varied identities and cultures come together to test their messages.

Certainly, there will be a mix of the public and the private; the serious and the not so serious. But, this might be the kind of democratic spaces needed by our society: a mishmash of emotion and logic that may creatively spring solutions to grave public issues in better and more entertaining ways than a symposium of scholars. Libel with its broad bright lines, thus, is an anachronistic tool that may have had its uses in older societies: a monkey wrench that will steal inspiration from the democratic mob.

V (F)

No State Interest in Criminalizing Libel

The kinds of speech that are actually deterred by libel law are more valuable than the state interest that is sought to be protected by the crime. Besides, there are less draconian alternatives which have very minimal impact on the public’s fundamental right of expression. Civil actions for defamation do not threaten the public’s fundamental right to free speech. They narrow its availability such that there is no unnecessary chilling effect on criticisms of public officials or policy. They also place the proper economic burden on the complainant and, therefore, reduce the possibility that they be used as tools to harass or silence dissenters.

The purposes of criminalizing libel come to better light when we review its history. This court has had the opportunity to trace its historical development. Guingguing v. Court of Appeals¹⁹⁵ narrated:chanRoblesVirtualawlibrary

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the landmark opinion of England’s Star Chamber in the Libelis Famosis case in 1603, two major propositions in the prosecution of defamatory remarks were established: first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. These propositions were due to the fact that the law of defamatory libel was developed under the common law to help government protect itself from criticism and to provide an outlet for individuals to defend their honor and reputation so they would not resort to taking the law into their own hands.

Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious libel in the then English colony of New York. Zenger, the publisher of the New-York Weekly Journal, had been charged with seditious libel, for his paper’s consistent attacks against Colonel William Cosby, the Royal Governor of New York. In his defense, Zenger’s counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby were “the right of every free-born subject to make when the matters so published can be supported with truth.” The jury, by acquitting Zenger, acknowledged albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune from criticism.

The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the American democratic ideal. It has been characterized as the first landmark in the tradition of a free press, then a somewhat radical notion that eventually evolved into the First Amendment in the American Bill of Rights and also proved an essential weapon in the war of words that led into the American War for Independence.

Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall pass no law abridging the freedom of speech. The notorious Alien and Sedition Acts of 1798 made it a crime for any person who, by writing, speaking or printing, should threaten an officer of the government with damage to his character, person, or estate. The law was passed at the insistence of President John Adams, whose Federalist Party had held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the Jeffersonian Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The Acts were never challenged before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration.

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously opined, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”¹⁹⁶crallawlibrary

It was in that case where the court noted the history of early American media that focused on a “mad dog rhetoric” approach. This, in turn, led the court to conclude that “[t]hese observations are important in light of the misconception that freedom of expression extends only to polite, temperate, or reasoned expression. x x x Evidently, the First Amendment was designed to protect expression even at its most rambunctious and vitriolic form as it had prevalently taken during the time the clause was enacted.”¹⁹⁷crallawlibrary

The case that has defined our understanding of the concept of modern libel - the New York Times Co. v. Sullivan¹⁹⁸ - then followed. As discussed earlier, the New York Times case required proof of actual malice when a case for defamation “includes matters of public concern, public men, and candidates for office.”¹⁹⁹crallawlibrary

The cases of Garrison v. Louisiana, and Curtis Publishing Co. v. Butts both expanded the New York Times’ actual malice test to public officials and public figures, respectively.²⁰⁰crallawlibrary

Libel in the Philippines first emerged during the Spanish colonial times. The Spanish Penal Code criminalized “rebellion, sedition, assaults, upon persons in authority, and their agents, and contempts, insults, injurias, and threats against persons in authority and insults, injurias, and threats against their agents and other public officers.”²⁰¹ Thus, noting the developments in both the Spanish and American colonial periods, it was correctly observed that:chanRoblesVirtualawlibrary

The use of criminal libel to regulate speech - especially speech critical of foreign rule or advocating Philippine independence - was a feature of both the Spanish and American colonial regimes. The Spanish Penal Code and the Penal Code of the Philippines made insult and calumny a crime. In the early 1900s, the Philippine Commission (whose members were all appointed by the President of the United States) punished both civil and criminal libel under Act No. 277, one of its earliest laws.²⁰²crallawlibrary

During the American occupation, Governor-General William Howard Taft explained how “libel was made into a criminal offense in the Philippines because ‘the limitations of free speech are not very well understood’ unlike in the US’”²⁰³ Then came the case of U.S. v. Ocampo,²⁰⁴ where Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, and Faustino Aguilar were charged with libel in connection with the publication of the article “Birds of Prey” in the newspaper El Renacimiento. The article allegedly defamed Philippine Commission member and Interior Secretary Mr. Dean C. Worcester. This court affirmed the conviction of Ocampo and Kalaw stating that there were no justifiable motives found in the publication of the article.

In essence, Philippine libel law is “a ‘fusion’ of the Spanish law on defamacion and the American law on libel.”²⁰⁵ It started as a legal tool to protect government and the status quo. The bare text of the law had to be qualified through jurisprudential interpretation as the fundamental right to expression became clearer. In theory, libel prosecution has slowly evolved from protecting both private citizens and public figures to its modern notion of shielding only private parties from defamatory utterances.

But, a survey of libel cases during the past two (2) decades will reveal that the libel cases that have gone up to the Supreme Court²⁰⁶ generally involved notable personalities for parties. Relatively, libel cases that involve private parties before the Supreme Court are sparse.²⁰⁷ Dean Raul Pangalangan, former dean of the University of the Philippines College of Law and now publisher of the Philippine Daily Inquirer, observed that “libel cases are pursued to their conclusion mainly by public figures, x x x [since those filed] by private persons are settled amicably before the prosecutor.”²⁰⁸ Among the cases that reached the Supreme Court were those involving offended parties who were electoral candidates,²⁰⁹ ambassadors and business tycoons,²¹⁰ lawyers,²¹¹ actors or celebrities,²¹² corporations, ²¹³ and, public officers.²¹⁴ Even court officials have been involved as complainants in libel cases.²¹⁵crallawlibrary

This attests to the propensity to use the advantages of criminal libel by those who are powerful and influential to silence their critics. Without doubt, the continuous evolution and reiteration of the jurisprudential limitations in the interpretation of criminal libel as currently worded has not been a deterrent. The present law on libel as reenacted by Section 4(c)(4) of Rep. Act No. 10175 will certainly do little to shield protected speech. This is clear because there has been no improvement in statutory text from its version in 1930.

Libel law now is used not so much to prosecute but to deter speech. What is charged as criminal libel may contain precious protected speech. There is very little to support the view of the majority that the law will not continue to have this effect on speech.

This court has adopted the American case of Garrison v. Louisiana, albeit qualifiedly, in recognizing that there is an “international trend in diminishing the scope, if not the viability, of criminal libel prosecutions.”²¹⁶Garrison struck down the Louisiana Criminal Defamation Statute and held that the statute incorporated constitutionally invalid standards when it came to criticizing or commenting on the official conduct of public officials.

It is time that we now go further and declare libel, as provided in the Revised Penal Code and in the Cybercrime Prevention Act of 2012, as unconstitutional.

This does not mean that abuse and unwarranted attacks on the reputation or credibility of a private person will not be legally addressed. The legal remedy is civil in nature and granted in provisions such as the Chapter on Human Relations in the Civil Code, particularly Articles 19, 20, and 21.²¹⁷ These articles provide:chanRoblesVirtualawlibrary

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Article 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

This court previously discussed the nature and applicability of Articles 19 to 21 of the Civil Code, stating that:chanRoblesVirtualawlibrary

[Article 19], known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper.

Article 20, which pertains to damage arising from a violation of law, provides that:chanRoblesVirtualawlibrary

Art. 20. Every person who contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

x x x Article 21 of the Civil Code provides that:chanRoblesVirtualawlibrary

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

This article, adopted to remedy the ”countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury” [Id.] should ”vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes” [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18, 1978, 83 SCRA 237, 247].

In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied. While the Court has not hesitated to apply Article 19 whether the legal and factual circumstances called for its application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31, 1981,106 SCRA 391; United General Industries, Inc, v. Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other applicable provision of law, depends on the circumstances of each case. x x x.²¹⁸crallawlibrary

In affirming award of damages under Article 19 of the Civil Code, this court has said that “[t]he legitimate state interest underlying the law of libel is the compensation of the individuals for the harm inflicted upon them by defamatory falsehood. After all, the individual’s right to protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty.’”²¹⁹crallawlibrary

In a civil action, the complainant decides what to allege in the complaint, how much damages to request, whether to proceed or at what point to compromise with the defendant. Whether reputation is tarnished or not is a matter that depends on the toleration, maturity, and notoriety of the person involved. Varying personal thresholds exists. Various social contexts will vary at these levels of toleration. Sarcasm, for instance, may be acceptable in some conversations but highly improper in others.

In a criminal action, on the other hand, the offended party does not have full control of the case. He or she must get the concurrence of the public prosecutor as well as the court whenever he or she wants the complaint to be dismissed. The state, thus, has its own agency. It will decide for itself through the prosecutor and the court.

Criminalizing libel imposes a standard threshold and context for the entire society. It masks individual differences and unique contexts. Criminal libel, in the guise of protecting reputation, makes differences invisible.

Libel as an element of civil liability makes defamation a matter between the parties. Of course, because trial is always public, it also provides for measured retribution for the offended person. The possibility of being sued also provides for some degree of deterrence.

The state’s interest to protect private defamation is better served with laws providing for civil remedies for the affected party. It is entirely within the control of the offended party. The facts that will constitute the cause of action will be narrowly tailored to address the perceived wrong. The relief, whether injunctive or in damages, will be appropriate to the wrong.

Declaring criminal libel as unconstitutional, therefore, does not mean that the state countenances private defamation. It is just consistent with our democratic values.

VI

Cybersex is Unconstitutional

Section 4(c)(1) of Rep. Act No. 10175 is also overbroad and, therefore, unconstitutional. As presently worded:chanRoblesVirtualawlibrary

SEC. 4. Cybercrime Offenses. —The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibrary

(c) Content-related Offenses:chanRoblesVirtualawlibrary

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

The ponencia invites us to go beyond the plain and ordinary text of the law and replace it with the deliberations in committees that prepared the provision. Thus, it claims: “(t)he Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e. by webcam.”²²⁰crallawlibrary

The majority is not clear why the tighter language defining the crimes of prostitution and white slavery was not referred to clearly in the provision. Neither does it explain the state’s interest in prohibiting intimate private exhibition (even for favor or consideration) by web cam as opposed to physical carnal knowledge required now in the crime of prostitution.

Worse, the ponencia fails to appreciate the precarious balance that decades of jurisprudence carved out in relation to criminalizing expression with sexual content. Instead, the ponencia points out that the “x x x subject of section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC punishes ‘obscene publications and exhibitions and indecent shows.’”²²¹ Again, we are thrown back to the 1930 version of the Revised Penal Code. With constant and painstaking tests that will bring enlightenment to expression with sexual content evolved through jurisprudence, it seems that we, as a society, are being thrown back to the dark ages.

VI (B)

Sweeping Scope of Section 4(c)(1)

This provision is too sweeping in its scope.

As worded, it unreasonably empowers the state to police intimate human expression. The standard for “lascivious exhibition” and the meaning of “sexual organ or sexual activity” empowers law enforcers to pass off their very personal standards of their own morality. Enforcement will be strict or loose depending on their tastes. Works of art sold in the market in the form of photographs, paintings, memes, and other genre posted in the internet would have to shape their expression in accordance with the tastes of local law enforcers. Art — whether free, sold or bartered — will not expand our horizons; it will be limited by the status quo in our culture wherein the dominant themes will remain dominant. There will be patriarchal control over what is acceptable intimate expression.

This provision, thus, produces a chilling effect. It provides for no restrictions to power and allows power to determine what is “lascivious” and what is not.

Respondents concede that certain artistic works — even if they feature nudity and the sexual act — are protected speech. They argue that the interpretation of the provision should allow for these kinds of expression. However, this reading cannot be found from the current text of the provision. The Solicitor General, though an important public officer, is not the local policeman in either an urban or rural setting in the Philippines.

Certain art works that depict the nude human body or the various forms of human intimacies will necessarily have a certain degree of lasciviousness. Human intimacy, depicted in the sexual act, is not sterile. It is necessarily evocative, expressive, and full of emotions. Sexual expression can be titillating and engaging. It is to be felt perhaps more than it should be rationally understood.

Michaelangelo’s marble statue, David, powerfully depicted an exposed Biblical hero. Sandro Boticelli’s painting, Birth of Venus, emphatically portrays the naked, full-grown mythological Roman goddess Venus. The Moche erotic pots of Peru depict various sexual acts. These representations of human nakedness may be lascivious for some but expressively educational for others. This can be in images, video files, scientific publications, or simply the modes of expression by internet users that can be exchanged in public.

VI (C)

Standards for “Obscenity”

This is not the first time that this court deals with sexually-related expression. This court has carefully crafted operative parameters to distinguish the “obscene” from the protected sexual expression. While I do not necessarily agree with the current standards as these have evolved, it is clear that even these standards have not been met by the provision in question. I definitely agree that “lascivious” is a standard that is too loose and, therefore, unconstitutional.

Even for this reason, the provision cannot survive the constitutional challenge.

Obscenity is not easy to define.²²² In Pita v. Court of Appeals, we recognized that “individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today.”²²³crallawlibrary

Using the concept of obscenity or defining this term is far from being settled.²²⁴ The court’s task, therefore, is to “[evolve] standards for proper police conduct faced with the problem” and not so much as to arrive at the perfect definition.²²⁵crallawlibrary

In Gonzales v. Kalaw-Katigbak,²²⁶ we noted the persuasiveness of Roth v. United States²²⁷ and borrowed some of its concepts in judging obscenity.

There is persuasiveness to the approach followed in Roth: ‘The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin ¹⁹⁶⁸ LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards to withstand the charge of constitutional infirmity.”²²⁸ (Emphasis supplied)

Thus, at present, we follow Miller v. California,²²⁹ a United States case, as the latest authority on the guidelines in characterizing obscenity.²³⁰ The guidelines, which already integrated the Roth standard on prurient interest, are as follows:chanRoblesVirtualawlibrary

a.  Whether the ‘average person, applying contemporary standards’ would find the work, taken as a whole, appeals to the prurient interest x x x;

b.  Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

c.  Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.²³¹crallawlibrary

The guidelines in Miller were adopted in Pita v. Court of Appeals²³² and Fernando v. Court of Appeals.²³³ It was also cited in the 2009 case of Soriano v. Laguardia²³⁴ wherein we stated:chanRoblesVirtualawlibrary

Following the contextual lessons of the cited case of Miller v. California a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards.²³⁵crallawlibrary

The tests or guidelines cited above were created and applied as demarcations between protected expression or speech and obscene expressions. The distinction is crucial because censorship or prohibition beyond these guidelines is a possible danger to the protected freedom. For this reason, the courts, as “guard[ians] against any impermissible infringement on the freedom of x x x expression,” “should be mindful that no violation of such is freedom is allowable.”²³⁶crallawlibrary

The scope of the cybersex provision is defective. Contrary to the minimum standards evolved through jurisprudence, the law inexplicably reverts to the use of the term “lascivious” to qualify the prohibited exhibition of one’s sexuality. This effectively broadens state intrusion. It is an attempt to reset this court’s interpretation of the constitutional guarantee of freedom of expression as it applies to sexual expression.

First, the current text does not refer to the standpoint of the “average person, applying contemporary standards.” Rather it refers only to the law enforcer’s taste.

Second, there is no requirement that the “work depicts or describes in a patently offensive way sexual conduct”²³⁷ properly defined by law. Instead, it simply requires “exhibition of sexual organs or sexual activity”²³⁸ without reference to its impact on its audience.

Third, there is no reference to a judgment of the “work taken as a whole”²³⁹ and that this work “lacks serious literary, artistic, political or scientific” value. Rather, it simply needs to be “lascivious.”²⁴⁰crallawlibrary

Roth v. United States²⁴¹ sheds light on the relationship between sex and obscenity, and ultimately, cybersex as defined in Rep. Act No. 10175 and obscenity:chanRoblesVirtualawlibrary

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.²⁴²crallawlibrary

This court adopted these views in Gonzales v. Kalaw-Katigbak.²⁴³crallawlibrary

VI (D)

Obscenity and Equal Protection

Some of the petitioners have raised potential violations of the equal protection clause in relation to provisions relating to obscenity.

We are aware that certain kinds of offensive and obscene expression can be stricken down as unconstitutional as it violates the equal protection clause. At this point, any assessment of this argument must require the framework of adversarial positions arising from actual facts. However, a survey of this argument may be necessary in order to show that even the current text will not be able to survive this challenge.

Catharine MacKinnon suggests that there is a conflict between the application of doctrines on free expression and the idea of equality between the sexes.²⁴⁴ The issue of obscenity, particularly pornography, is “legally framed as a vehicle for the expression of ideas.”²⁴⁵ Pornography, in essence, is treated as “only words” or expressions that are distinct from what it does (from its acts).²⁴⁶ As such, it is accorded the status of preferred freedom, without regard to its harmful effects, that is perpetuating a social reality that women are subordinate to men.²⁴⁷ Hence, in protecting pornography as an expression, the actions depicted become protected in the name of free expression.²⁴⁸crallawlibrary

The issue of inequality had, in the past, been rendered irrelevant when faced with the issue of obscenity or pornography.²⁴⁹ This was not addressed by our jurisprudence on obscenity.²⁵⁰ The guidelines on determining what is obscene are premised on the idea that men and women are equal and viewed equally — which basically pertains to the male’s point of view of equality that women are inferior.²⁵¹crallawlibrary

In treating pornography, therefore, as protected expression, it is alleged that the State protects only the men’s freedom of speech.²⁵² Simultaneously, however, women’s freedom of speech is trampled upon.²⁵³ Each time pornography is protected as free expression, the male view of equality is perpetuated.²⁵⁴ It becomes more and more integrated into the consciousness of the society, silencing women, and rendering the reality of female subordination so unremarkable that it becomes inconsequential and even doubtful.²⁵⁵crallawlibrary

Others do not agree with MacKinnon’s view. According to Edwin Baker, MacKinnon’s theory “fails to recognize or provide for the primary value of or justification for protecting expression.”²⁵⁶ It fails to recognize the status of this freedom vis a vis individual liberty, and why this freedom is fundamental.²⁵⁷ More than through arguments about ideas, people induce changes and transform their social and political environments through expressive behavior.²⁵⁸ Also, being able to participate in the process of social and political change is “encompassed in the protected liberty.”²⁵⁹crallawlibrary

Baker provides an example, thus:chanRoblesVirtualawlibrary

Even expression that is received less as argument than “masturbation material”, becomes a part of a cultural or behavioral “debate” about sexuality, about the nature of human relations, and about pleasure and morality, as well as about the roles of men and women. Historically, puritanical attempts to suppress sexually explicit materials appear largely designed to shut down this cultural contestation in favor of a traditional practice of keeping women in the private sphere. Opening up this cultural debate has in the past, and can in the future, contribute to progressive change.²⁶⁰crallawlibrary

Baker also points out that MacKinnon disregards that receivers of communicated expressions are presumably autonomous agents who bear the responsibility for their actions and are capable of moral choice.²⁶¹crallawlibrary

The expression should also be treated as independent of the act or offense. The expression or “autonomous act of the speaker does not itself cause x x x harm. Rather, the harm occurs through how the other person, presumably an autonomous agent whom we normally treat as bearing the responsibility for her own acts, responds.”²⁶²crallawlibrary

Baker agrees that expressions “[construct] the social reality in which [offenses] take place.”²⁶³ However, the expression itself is not the offense.²⁶⁴crallawlibrary

Part of the reason to protect speech, or, more broadly, to protect liberty, is a commitment to the view that people should be able to participate in constructing their world, or to the belief that this popular participation provides the best way to move toward a better world. The guarantee of liberty represents a deep faith in people and in democracy.²⁶⁵crallawlibrary

Punishing or even threatening to punish “lascivious exhibition of sexual organs or sexual activity” through “the aid of a computer system” for “favor or consideration” does nothing to alleviate the subordination of women. Rather, it facilitates the patriarchy. It will allow control of what a woman does with her body in a society that will be dominated by men or by the ideas that facilitate men’s hegemony.

The current provision prohibiting cybersex will reduce, through its chilling effect, the kind of expression that can be the subject of mature discussion of our sexuality. The public will, therefore, lose out on the exchanges relating to the various dimensions of our relationships with others. The cybersex provisions stifles speech, aggravates inequalities between genders, and will only succeed to encrust the views of the powerful.

If freedom of expression is a means that allows the minority to be heard, then the current version of this law fails miserably to protect it. It is overbroad and unconstitutional and should not be allowed to exist within our constitutional order.

VI (E)

Child Pornography Different from Cybersex

It is apt to express some caution about how the parties confused child pornography done through the internet and cybersex.

Section 4(c)(2), which pertains to child pornography, is different from the cybersex provision. The provision on child pornography provides:chanRoblesVirtualawlibrary

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

In my view, this provision should survive constitutional challenge. Furthermore, it is not raised in this case. The explicit reference to the Anti-Pornography Law or Republic Act No. 9775 constitutes sufficient standard within which to base the application of the law and which will allow it to survive a facial challenge for now.

VII

Traffic Data and Warrants

Section 12 of the Cybercrime Prevention Act of 2012 provides:chanRoblesVirtualawlibrary

Real-Time Collection of Traffic Data — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing:chanRoblesVirtualawlibrary

(1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed:chanRoblesVirtualawlibrary

(2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and

(3) that there are no other means readily available for obtaining such evidence.

Traffic Data and Expression

Traffic data, even as it is defined, still contains speech elements. When, how, to whom, and how often messages are sent in the internet may nuance the content of the speech. The message may be short (as in the 140-character limit of a tweet) but when it is repeated often enough in the proper context, it may imply emphasis or desperation. That a message used the email with a limited number of recipients with some blind carbon copies (Bcc) characterizes the message when it is compared to the possibility of actually putting the same content in a public social media post.

The intended or unintended interception of these parts of the message may be enough deterrent for some to make use of the space provided in cyberspace. The parameters are so loosely and broadly defined as “due cause” to be determined by “law enforcers”. Given the pervasive nature of the internet, it can rightly be assumed by some users that law enforcers will make use of this provision and, hence, will definitely chill their expression.

Besides, the provision — insofar as it allows warrantless intrusion and interception by law enforcers upon its own determination of due cause — does not specify the limits of the technologies that they can use. Traffic data is related to and intimately bound to the content of the packets of information sent from one user to the other or from one user to another server. The provision is silent on the limits of the technologies and methods that will be used by the law enforcer in tracking traffic data. This causes an understandable apprehension on the part of those who make use of the same servers but who are not the subject of the surveillance. Even those under surveillance — even only with respect to the traffic data — have no assurances that the method of interception will truly exclude the content of the message.

As observed by one author who sees the effect of general and roving searches on freedom of expression:chanRoblesVirtualawlibrary

Most broadly, freedom from random governmental monitoring—of both public spaces and recorded transactions—might be an essential predicate for self definition and development of the viewpoints that make democracy vibrant. This reason to be concerned about virtual searches, while somewhat amorphous, is important enough to have been remarked on by two Supreme Court justices. The first wrote, ‘walking and strolling and wandering…have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right to dissent and have honoured the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed suffocating silence.’ The second justice wrote:chanRoblesVirtualawlibrary

Suppose that the local police in a particular jurisdiction were to decide to station a police car at the entrance to the parking lot of a well-patronised bar from 5:30 p.m. to 7:30 p.m. every day…I would guess that the great majority of people…would say that this is not a proper police function…There would be an uneasiness, and I think a justified uneasiness, if those who patronised the bar felt that their names were being taken down and filed for future reference…This ought not to be governmental function when the facts are as extreme as I put them.²⁶⁶crallawlibrary

It will be different if it will be in the context of a warrant from a court of law. Its duration, scope, and targets can be more defined. The methods and technologies that will be used can be more limited. There will thus be an assurance that the surveillance will be reasonably surgical and provided on the basis of probable cause. Surveillance under warrant, therefore, will not cause a chilling effect on internet expression.

In Blo Umpar Adiong v. COMELEC, ²⁶⁷ this court reiterated:chanRoblesVirtualawlibrary

A statute is considered void for overbreadth when ”it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” (Zwickler v. Koota, 19 L ed 2d 444 ¹⁹⁶⁷).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, ”the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions,” 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that ”[c]onduct remains subject to regulation for the protection of society,” but pointed out that in each case ”the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]²⁶⁸crallawlibrary

Section 12 of Rep. Act No. 10175 broadly authorizes law enforcement authorities “with due cause” to intercept traffic data in real time. “Due cause” is a uniquely broad standard different from the “probable cause” requirement in the constitution or the parameters of “reasonable searches” in our jurisprudence.

The statute does not care to make use of labels of standards replete in our jurisprudence. It foists upon the public a standard that will only be defined by those who will execute the law. It therefore amounts to a carte blanche and roving authority whose limits are not statutorily limited. Affecting as it does our fundamental rights to expression, it therefore is clearly unconstitutional.

VII (C)

Traffic Data and Privacy Rights

Traffic data is defined by the second paragraph of Section 12 of Rep. Act No. 10175, thus:chanRoblesVirtualawlibrary

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

As worded, the collection, aggregation, analysis, storage and dissemination of these types of data may implicate both the originator’s and the recipient’s rights to privacy.

That these data move through privately owned networks, administered by private internet service providers, and run through privately owned internet exchange nodes is no moment. We will have to decide in some future case (where the facts and controversy would be clearer and more concrete) the nature and levels of intrusion that would be determined as a “reasonable search” and the uses of such data that would be reasonable “seizures” within the meaning of Article III, Section 2 of the Constitution. In such cases, we will have to delimit the privacy interests in the datum in question as well as in the data that may be collaterally acquired.

There are many types of “searches”.

There are instances when the observation is done only for purposes of surveillance. In these types of “searches,” the law enforcers may not yet have a specific criminal act in mind that has already been committed. Perhaps, these are instances when government will just want to have access to prevent the occurrence of cyber attacks of some kind. Surveillance can be general, i.e., one where there is no specific actor being observed. Some general surveillance may also be suspicionless. This means that there is no concrete indication that there will be some perpetrator. It is the surveillance itself that is the preventive action to deter any wrongdoing. It can also be specific, i.e., that there is already an actor or a specific group or classification of actors that is of interest to the government.

Then, there are the “searches” which are more properly called investigations. That is, that there is already a crime that has been committed or certain to be committed and law enforcers will want to find evidence to support a case. Then there is the “search” that simply enables law enforcers to enter a physical or virtual space in order to retrieve and preserve evidence already known to law enforcers.

For the moment, it is enough to take note that almost all of our jurisprudence in this regard has emerged from physical intrusions into personal spaces.

In In the Matter of the Petition for the Writ of the Petition for Issuance of Writ of Habeas Corpus of Camilo L. Sabio v. Gordon,²⁶⁹ this court explained the determination of a violation of the right of privacy:chanRoblesVirtualawlibrary

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a ”constitutional right” and ”the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, ”no one shall be subjected to arbitrary interference with his privacy” and ”everyone has the right to the protection of the law against such interference or attacks.”

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s ”right to be let alone” or the ”right to determine what, how much, to whom and when information about himself shall be disclosed.” Section 2 guarantees ”the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.” Section 3 renders inviolable the ”privacy of communication and correspondence” and further cautions that ”any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.²⁷⁰crallawlibrary

“Reasonable expectations of privacy,” however, may not be the only criterion that may be useful in situations arising from internet use. Some have suggested that in view of the infrastructure or the permeability of the networks created virtually and its cosmopolitarian or cross-cultural character, it may be difficult to identify what may be the normative understanding of all the participants with respect to privacy.²⁷¹ It has been suggested that privacy may best be understood in its phases, i.e., a core inalienable category where personal information is within the control of the individual, the right to initial disclosure, and the right for further dissemination.²⁷²crallawlibrary

In People v. Chua Ho San,²⁷³ this court made an explicit connection between the right to privacy and the right against unreasonable searches and seizures. Even then, based on the facts there alleged, a search was described as a “State intrusion to a person’s body, personal effects or residence”:chanRoblesVirtualawlibrary

Enshrined in the Constitution is the inviolable right to privacy of home and person. It explicitly ordains that people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. Inseparable, and not merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the exclusionary principle which decrees that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding.

The Constitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. Verily, the rule is, the Constitution bars State intrusions to a person’s body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court; “otherwise such search and seizure become ‘unreasonable’ within the meaning of the aforementioned constitutional provision.”²⁷⁴crallawlibrary

In the more recent case of Valeroso v. People,²⁷⁵ this court held that:chanRoblesVirtualawlibrary

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.²⁷⁶crallawlibrary

Very little consideration, if any, has been taken of the speed of information transfers and the ephemeral character of information exchanged in the internet.

I concede that the general rule is that in order for a search to be considered reasonable, a warrant must be obtained. In Prudente v. Dayrit:²⁷⁷crallawlibrary

For a valid search warrant to issue, there must be probable cause, which is to be determined personally by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The probable cause must be in connection with one specific offense and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witness he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

The ’probable cause’ for a valid search warrant, has been defined ’as such facts and circumstances which would lead a reasonably discreet arid prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched.’ This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.²⁷⁸ (Citations omitted)

However, not all searches without a warrant are per se invalid. Jurisprudence is replete with the exceptions to the general rule.

In People v. Rodrigueza,²⁷⁹ this court reiterated the enumeration of the instances when a search and seizure may be conducted reasonably without the necessity of a search warrant:chanRoblesVirtualawlibrary

As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly issued by the proper government authority. True, in some instances, this Court has allowed government authorities to conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right against such incursion; when the search is incidental to a lawful arrest; when it is made on vessels and aircraft for violation of customs laws; when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; when it involves prohibited articles in plain view; or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations, a search may be validly made even without a search warrant.²⁸⁰ (Citations omitted)

In specific instances involving computer data, there may be analogies with searches of moving or movable vehicles. People v. Bagista²⁸¹ is one of many that explains this exception:chanRoblesVirtualawlibrary

The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view.

With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought.

This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.²⁸² (Citations omitted)

Then again in People v. Balingan,²⁸³ this court held that there was a valid search and seizure, even if done in a moving vehicle. It gave the rationale for this holding:chanRoblesVirtualawlibrary

We also find no merit in appellant’s argument that the marijuana flowering tops should be excluded as evidence, they being the products of an alleged illegal warrantless search. The search and seizure in the case at bench happened in a moving, public vehicle. In the recent case of People vs. Lo Ho Wing, 193 SCRA 122 (1991), this Court gave its approval to a warrantless search done on a taxicab which yielded the illegal drug commonly known as shabu. In that case, we raciocinated:chanRoblesVirtualawlibrary

x x x x

The contentions are without writ. As correctly averred by appellee, that search and seizure must be supported by a valid warrant is not an absolute rule. There are at least three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs. Sandiganbayan, these are: ¹ a search incidental to an arrest, ²a search of a moving vehicle, and ³ seizure of evidence in plain view (emphasis supplied). The circumstances of the case clearly show that the search in question was made as regards a moving vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant and his co-accused.

In this connection, We cite with approval the averment of the Solicitor General, as contained in the appellee’s brief, that the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge — a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that ’it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’²⁸⁴crallawlibrary

Another instance of a reasonable and valid warrantless search which can be used analogously for facts arising from internet or computer use would be in instances where the existence of the crime has been categorically acknowledged. People v. De Gracia,²⁸⁵ explains:chanRoblesVirtualawlibrary

The next question that may be asked is whether or not there was a valid search and seizure in this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team, considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant at that time. The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the RAM. Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof refused to open the door despite requests for them to do so, thereby compelling the former to break into the office. The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.²⁸⁶crallawlibrary

But the internet has created other dangers to privacy which may not be present in the usual physical spaces that have been the subject of searches and seizures in the past. Commercial owners of servers and information technologies as well as some governments have collected data without the knowledge of the users of the internet. It may be that our Data Privacy Law²⁸⁷ may be sufficient.

Absent an actual case therefore, I am not prepared to declare Section 12 of Rep. Act 10175 as unconstitutional on the basis of Section 2 or Section 3(a) of Article III of the Constitution. My vote only extends to its declaration of unconstitutionality because the unlimited breadth of discretion given to law enforcers to acquire traffic data for “due cause” chills expression in the internet. For now, it should be stricken down because it violates Article III, Section 4 of the Constitution.

VIII

Limitations on Commercial Speech
are Constitutional

I dissent from the majority in their holding that Section 4(c)(3) of Rep. Act No. 10175 is unconstitutional. This provides:chanRoblesVirtualawlibrary

“(3) Unsolicited Commercial Communications. - The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale product and services are prohibited unless:chanRoblesVirtualawlibrary

“(i) there is prior affirmative consent from the recipient; or

“(ii) the primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

“(iii) the following conditions are present:chanRoblesVirtualawlibrary

“(aa) the commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt out) from the same source;

“(bb) the commercial electronic communication does not purposely disguise the source of the electronic message; and

“(cc) the commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.”

On the origins of this provision, the Senate Journal’s reference to the deliberations on the Cybercrime Law²⁸⁸ states:chanRoblesVirtualawlibrary

Unsolicited Commercial Communications in Section 4(C)(3)

This offense is not included in the Budapest Convention. Although there is an ongoing concern against receiving spams or unsolicited commercial e-mails sent in bulk through the computer or telecommunication network, Section 4(C)(3) is too general in the sense it can include a simple email from one person to another person, wherein the sender offers to sell his house or car to the receiver. Therefore, to avoid such acts of injustice, Section 4(C)(3) should be narrowed.

Senator Angara accepted the recommendation as he clarified that what the bill covers is unsolicited emails in bulk.²⁸⁹crallawlibrary

Section 4(c)(3) Has No Chilling Effect
on Speech of Lower Value

Section 4(c)(3) of Rep. Act No. 10175 on unsolicited commercial communication has no chilling effect. It is narrowly drawn. Absent an actual case, it should not be declared as unconstitutional simply on the basis of its provisions. I dissent, therefore, in the majority’s holding that it is unconstitutional.

Commercial speech merited attention in 1996 in Iglesia ni Cristo v. Court of Appeals.²⁹⁰ In Iglesia ni Cristo, this court stated that commercial speech is “low value” speech to which the clear and present danger test is not applicable.²⁹¹crallawlibrary

In 2007, Chief Justice Reynato Puno had the opportunity to expound on the treatment of and the protection afforded to commercial speech in his concurring and separate opinion in Pharmaceutical and Health Care Association of the Philippines v. Duque III.²⁹² Writing “to elucidate another reason why the absolute ban on the advertising and promotion of breastmilk substitutes x x x should be struck down,”²⁹³ he explained the concept of commercial speech and traced the development of United States jurisprudence on commercial speech:chanRoblesVirtualawlibrary

The advertising and promotion of breastmilk substitutes properly falls within the ambit of the term commercial speech-that is, speech that proposes an economic transaction. This is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.

A look at the development of jurisprudence on the subject would show us that initially and for many years, the United States Supreme Court took the view that commercial speech is not protected by the First Amendment. It fastened itself to the view that the broad powers of government to regulate commerce reasonably includes the power to regulate speech concerning articles of commerce.

This view started to melt down in the 1970s. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, the U.S. Supreme court struck down a law prohibiting the advertising of prices for prescription drugs. It held that price information was important to consumers, and that the First Amendment protects the ’right to receive information’ as well as the right to speak. It ruled that consumers have a strong First Amendment interest in the free flow of information about goods and services available in the marketplace and that any state regulation must support a substantial interest.

Central Hudson Gas & Electric v. Public Service Commission is the watershed case that established the primary test for evaluating the constitutionality of commercial speech regulations. In this landmark decision, the U.S. Supreme Court held that the regulation issued by the Public Service Commission of the State of New York, which reaches all promotional advertising regardless of the impact of the touted service on overall energy use, is more extensive than necessary to further the state’s interest in energy conservation. In addition, it ruled that there must be a showing that a more limited restriction on the content of promotional advertising would not adequately serve the interest of the State. In applying the First Amendment, the U.S. Court rejected the highly paternalistic view that the government has complete power to suppress or regulate commercial speech.

Central Hudson provides a four-part analysis for evaluating the validity of regulations of commercial speech. To begin with, the commercial speech must ’concern lawful activity and not be misleading’ if it is to be protected under the First Amendment. Next, the asserted governmental interest must be substantial. If both of these requirements are met, it must next be determined whether the state regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.²⁹⁴ (Citations omitted)

In his separate concurring opinion in Chavez v. Gonzales,²⁹⁵ Justice Antonio Carpio, citing Pharmaceutical and Health Care Association of the Philippines, stated that “false or misleading advertisement” is among the instances in which “expression may be subject to prior restraint,”²⁹⁶ thus:chanRoblesVirtualawlibrary

The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, “[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals.”²⁹⁷ (Citations omitted)

Further in his separate concurring opinion, Justice Carpio reiterates this point. Making reference to the norm in the United States, he states that “false or deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint”.²⁹⁸ Conformably, he also cited Pharmaceutical and Health Care Association of the Philippines and its having “upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public.”

In his twelfth footnote, Justice Carpio made reference to the state interest, articulated in the Constitution itself, in regulating advertisements:chanRoblesVirtualawlibrary

Another fundamental ground for regulating false or misleading advertisement is Section 11(2), Article XVI of the Constitution which states : “The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.”²⁹⁹crallawlibrary

As acknowledged by the majority, “[c]ommercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.”³⁰⁰crallawlibrary

I agree that the basis of protection accorded to commercial speech rests in its informative character: “[t]he First Amendment’s concern for commercial speech is based on the informational function of advertising”:³⁰¹crallawlibrary

Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible [447 U.S. 557, 562] dissemination of information. In applying the First Amendment to this area, we have rejected the ’highly paternalistic’ view that government has complete power to suppress or regulate commercial speech. ’[P]eople will perceive their own best interest if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . .’ Id., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374.³⁰²crallawlibrary

Since it is valuable only to the extent of its ability to inform, advertising is not at par with other forms of expression such as political or religious speech. The other forms of speech are indispensable to the democratic and republican mooring of the state whereby the sovereignty residing in the people is best and most effectively exercised through free expression. Business organizations are not among the sovereign people. While business organizations, as juridical persons, are granted by law a capacity for rights and obligations, they do not count themselves as among those upon whom human rights are vested.

The distinction between commercial speech and other forms of speech is, thus, self-evident. As the United States Supreme Court noted in a discursive footnote in Virginia Pharmacy Board:³⁰³crallawlibrary

In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are commonsense differences between speech that does ’no more than propose a commercial transaction,’ Pittsburgh Press Co., v. Human Relations Comm'n, 413 U.S., at 385, and other varieties. Even if the differences do not justify the conclusion that commercial speech is valueless, and thus subject to complete suppression by the State, they nonetheless suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.

Attributes such as these, the greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker. Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964), with Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may also make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), with Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Cf. United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924) (’It is not difficult to choose statements, designs and devices which will not deceive’). They may also make inapplicable the prohibition against prior restraints. Compare New York Times Co. v. United States, 403 U.S. 713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191 (1948); FTC v. Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F.2d 735, 739-740 (CA2 1956), cert. denied, 352 U.S. 969 (1957).³⁰⁴ (Emphasis supplied)

It follows, therefore, that the state may validly suppress commercial speech that fails to express truthful and accurate information. As emphasized in Central Hudson:³⁰⁵crallawlibrary

The First Amendment’s concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 464-465, or [447 U.S. 557, 564] commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973).

If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.³⁰⁶crallawlibrary

Section 4(c) (3) of the Rep. Act No. 10175 refers only to commercial speech since it regulates communication that advertises or sells products or services. These communications, in turn, proposes only commercial or economic transactions. Thus, the parameters for the regulation of commercial speech as articulated in the preceding discussions are squarely applicable.

Definitely, there is no occasion for Section 4(c)(3) to chill speech of fundamental value. Absent an actual case, judicial review should not go past that test. Hence, this provision should not be declared unconstitutional.

VIII (C)

The Provision has a Valid Purpose

As noted by the majority, Section 4(c)(3) refers to what, in contemporary language, has been referred to as “spam”. The origin of the term is explained as follows:chanRoblesVirtualawlibrary

The term “spam,” as applied to unsolicited commercial email and related undesirable online communication, is derived from a popular Python sketch set in a cafe that includes the canned meat product SPAM in almost every dish. As the waitress describes the menu with increasing usage of the word “spam,” a group of Vikings in the cafe start singing, “Spam, spam, spam, spam, spam,” drowning out all other communication with their irrelevant repetitive song.³⁰⁷crallawlibrary

Spam is typified by its being unsolicited and repetitive as well as by its tendency to drown out other communication. Compared with other forms of advertising, spam has been distinguished as a negative externality. This means that it imposes upon a party a cost despite such party’s not having chosen to engage in any activity that engenders such cost. Thus:chanRoblesVirtualawlibrary

How does spam differ from legitimate advertising? If you enjoy watching network television, using a social networking site, or checking stock quotes online, you know that you will be subjected to advertisements, many of which you may find relevant or even annoying. Google, Yahoo!, Microsoft, Facebook, and others provide valuable consumer services, such as search, news, and email, supported entirely by advertising revenue. While people may resent advertising, most consumers accept that advertising is a price they pay for access to content and services that they value. By contrast, unsolicited commercial email imposes a negative externality on consumers without any market-mediated benefit, and without the opportunity to opt-out.³⁰⁸crallawlibrary

The noxious effects of spam are clearly demonstrable. Any email user knows the annoyance of having to sift through several spam messages in a seemingly never ending quest to weed them out. Moreover, while certain spam messages are readily identifiable, a significant number are designed (or disguised) in such a way as to make a user think that they contain legitimate content.

For instance, spam emails are given titles or headings like, “Please update your information,” “Conference Invitation,” “Please Confirm,” “Alert,” “Hello My Dearest,” and “Unclaimed Check.” Spam messages also make reference to current events and civic causes.

Similarly, spam messages disguise themselves as coming from legitimate sources by using subtle or inconspicuous alterations in sender information. Thus, a letter “i,” which appears in the middle of a word, is replaced with the number “1,” a letter “o” may be replaced with the number zero; a spam message may be made to appear to come from the legitimate online financial intermediary PayPal, when in fact, the sending address is “paypol.com”. At times, entirely false names are used, making spam messages appear to come from relatively unfamiliar but ostensibly legitimate senders such as low-key government agencies or civic organizations. As noted by Cisco Systems: “The content in the message looks and sounds much more legitimate and professional than it used to. Spam often closely mimics legitimate senders’ messages—not just in style but by ‘spoofing’ the sender information, making it look like it comes from a reputable sender.”³⁰⁹crallawlibrary

The damage cost by spamming is manifest in calculable financial and economic costs and not just in the nebulous vexation it causes users. IT research firm Nuclear Research found that as far back as eleven (11) years ago, in 2003, an average employee receives 13.3 spam messages a day. Moreover, a person may spend as much as ninety (90) minutes a day managing spam. This translates to 1.4% lost productivity per person per year and an average cost of US$ 874 per employee per year.³¹⁰ A 2012 study also noted that some US$20 billion is spent annually to fend off unwanted email with US$6 billion spent annually on anti-spam software.³¹¹crallawlibrary

Apart from being associated with the vexation of users and costs undermining productivity and efficiency, spamming is also a means for actually attacking IT systems. The 2000 attack of the “I Love You” Worm, which was earlier noted in this opinion, was committed through means of email messages sent out to a multitude of users. While defensive technologies against spamming have been developed (e.g., IP blacklisting, crowd sourcing, and machine learning), spammers have likewise improved on their mechanisms. The present situation is thus indicative of escalation, an arms race playing out in cyberspace. As is typical of escalation, the capacity of spammers to inflict damage has significantly increased. In 2003, spamming botnets began to be used, thereby enabling the spread of malware (i.e., malicious software):chanRoblesVirtualawlibrary

Blacklists gradually made it impossible for spammers to use their own servers (or others’ open relay servers) with fixed IP addresses. Spammers responded with a “Whack-a-Mole” strategy, popping up with a new computer IP address every time the old one got shut down. This strategy was observed and named as early as 1996, and eventually became considerably cheaper with another major innovation in spam: the botnet.

A botnet is a network of “zombie” computers infected by a piece of malicious software (or “malware”) designed to enslave them to a master computer. The malware gets installed in a variety of ways, such as when a user clicks on an ad promising “free ringtones.” The infected computers are organized in a militaristic hierarchy, where early zombies try to infect additional downstream computers and become middle managers who transmit commands from the central “command and control” servers down to the frontline computers

The first spamming botnets appeared in 2003. Static blacklists are powerless against botnets. In a botnet, spam emails originate from tens of thousands of IP addresses that are constantly changing because most individual consumers have their IP addresses dynamically allocated by Dynamic Host Control Protocol (DHCP). Dynamic blacklisting approaches have since been developed; Stone-Gross, Holz, Stringhini, and Vigna (2011) document that 90 percent of zombie computers are blacklisted before the end of each day. However, if the cable company assignsa zombie computer a new IP address each day, that computer gets a fresh start and can once again successfully send out spam.³¹²crallawlibrary

Spam’s capacity to deceive recipients through false and misleading headers, content, and senders likewise makes it a viable means for phishing and identity theft, thereby enabling spammers to gain control of user accounts (e.g., online banking, social networking). This is demonstrated by the case of Jeffrey Brett Goodin, the first person to be convicted under the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (more briefly and popularly known as the CAN-SPAM Act). Goodin was found guilty of sending emails to users of America Online (AOL). Posing as someone from AOL’s billing department, his emails directed users to go to websites operated by Goodin himself. On the pretense that information was necessary to prevent the termination of their AOL services, these websites prompted users to supply personal and credit card information. This, in turn, enabled Goodin to engage in fraudulent transactions.³¹³crallawlibrary

There can be no more direct way of curtailing spamming and its deleterious effects than by prohibiting the “transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services”,³¹⁴ unless falling under any of the enumerated exceptions, as Section 4(c)(3) does. The preceding discussion has clearly demonstrated the extent to which spamming engenders or otherwise facilitates vexation, intrusions, larceny, deception, violence, and economic damage. Spamming represents a hazard, and its riddance will entail the concomitant curtailment of the perils it entails.

VIII (D)

The Provision is Narrowly Drawn

Section 4(c)(3) is phrased in a manner that is sufficiently narrow. It is not a blanket prohibition of the “transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services.”³¹⁵ Quite the contrary, it recognizes instances in which commercial information may be validly disseminated electronically. It provides multiple instances in which such communications are not prohibited.

First, when there is prior affirmative consent from the recipient.

Second, when it is primarily in the nature of a service and/or administrative announcement sent by a service provider to its clients.

Third, when there is a means to opt out of receiving such communication, such communication not being deceptive in that it purposely disguises its source or does not purposely contain misleading information.

The first exception, far from curtailing free commercial expression, actually recognizes it. It vests upon the parties to a communication, albeit with emphasis on the receiver, the freedom to will for themselves if the transmission of communication shall be facilitated.

The second exception recognizes that there are instances when a service provider must necessarily disseminate information (with or without the recipient’s consent) to ensure the effective functioning and client’s use of its services.

The third exception directly deals with intentionally deceptive spam that intends to ensnare users by not allowing them to opt out of receiving messages.

Section 4(c)(3) merely provides parameters to ensure that the dissemination of commercial information online is done in a manner that is not injurious to others. For as long as they are not vexatious (i.e., prior affirmative consent and opt-out requirement) or misleading, to the extent that they are not intrusive on their recipients, they may continue to be validly disseminated.

The opt-out provision provides the balance. Others may have as much right to speak about their products and exaggerate as they offer to make a commercial transaction. But that right is not an entitlement to vex others by their repetitive and insistent efforts to insist that others listen even if the customer has already declined. Commercial speech is protected only until it ceases to inform.

A FINAL NOTE

“Section 4. No law shall be passed abridging the freedom of speech, of expression or of the press x x x”

Rather than act with tempered but decisive vigilance for the protection of these rights, we have precariously perched the freedoms of our people on faith that those who are powerful and influential will not use the overly broad provisions that prohibit libel, cyber libel, and cybersex against their interests. We have exposed those that rely on our succor to the perils of retaliation because we stayed our hand in declaring libel provisions as unconstitutional. By diminishing the carefully drawn jurisprudential boundaries of what is obscene and what is not, we have allowed the state to unleash the dominant patriarchal notions of “lascivious” to police sexual expression.

On the other hand, the majority has opted to strike down what appears to be narrowly tailored protections against unsolicited commercial communication through cyberspace. I decline to endow this kind of speech — the commercial and the corporate — with more value. The balance struck by the majority in this case weighs more heavily towards those who have more resources and are more powerful. We have put the balance in favor of what is in the hegemony. Legitimate dissent will be endangered.

That, to me, is not what the Constitution says.

The Constitution protects expression. It affirms dissent. The Constitution valorizes messages and memes at the margins of our society. The Constitution also insists that we will cease to become a democratic society when we diminish our tolerance for the raw and dramatically delivered idea, the uncouth defamatory remark, and the occasional lascivious representations of ourselves.

What may seem odd to the majority may perhaps be the very kernel that unlocks our collective creativity.

ACCORDINGLY, I vote to declare as unconstitutional for being overbroad and violative of Article III, Section 4 of the Constitution the following provisions of Republic Act No. 10175 or the Cybercrime Prevention Act of 2012:chanRoblesVirtualawlibrary

(a)	The entire Section 19 or the “take down” provision;
(b)	The entire Section 4(c)(4) on cyber libel as well as Articles 353, 354, and 355 on libel of the Revised Penal Code;
(c)	The entire Section 4(c)(1) on cybersex;
(d)	Section 5 as it relates to Sections 4(c)(1) and 4(c)(4);
(e)	Section 6 as it increases the penalties to Sections 4(c)(1) and 4(c)(4);
(f)	Section 7 as it allows impermissibly countless prosecution of Sections 4(c)(1) and 4(c)(4); and
(g)	Section 12 on warrantless real-time traffic data surveillance.

I dissent with the majority in its finding that Section 4(c)(3) on Unsolicited Commercial Advertising is unconstitutional.

I vote to dismiss the rest of the constitutional challenges against the other provisions in Republic Act No. 10175 as raised in the consolidated petitions for not being justiciable in the absence of an actual case or controversy.

Endnotes:

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¹ Rep. Act No. 10175, sec. 1. The law was the product of Senate Bill No. 2796 and House Bill No. 5808.

² Consti., art. VIII, sec. 1 which provides the following:chanRoblesVirtualawlibrary

Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.

³ Consti., art. VIII, sec. 1.

⁴ Consti., art. VIII, sec. 1.

⁵Tanada v. Cuenco, G.R. No. L-10520, 100 Phil. 1101 (1957) [Per J. Concepcion, En Banc].

⁶Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806, 809 (1955) [Per J. Bengzon, En Banc].

⁷Levy Macasiano v. National Housing Authority, G.R. No. 107921, July 1, 1993, 224 SCRA 236, 242 [Per CJ Davide, Jr., En Banc].

⁸Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc].

⁹Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc], citing Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91 (2007) [Per J. Tinga, Second Division].

¹⁰ 499 Phil. 281 (2005) [Per C.J. Panganiban, En Banc].

¹¹ Id. at 304-305.

¹² G.R. No. 187883, June 16, 2009, 589 SCRA 356 [Per C.J. Puno, En Banc].

¹³ Id. at 357-358.

¹⁴ 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

¹⁵ Id. at 158.

¹⁶ G.R. No. 204603, September 24, 2013 [Per J. Perlas-Bernabe, En Banc].

¹⁷ Id.

¹⁸Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc].

¹⁹ Id. at 179.

²⁰ D. MACLEAN, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About Internet Governance’, Background Paper for the ITU Workshop on Internet Governance, Geneva, February 26-27, 2004, 8 <http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-internet-governance-background.pdf> (visited October 16, 2013).

²¹ ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).

²² 'Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, <http://www.unodc.org/documents/commissions/CCPCJ_session22/13 80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

²³ Id.

²⁴ ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).

²⁵ Id.cralawred

²⁶ Id. at 3.

²⁷ Id.

²⁸ ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 282 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

²⁹ ‘Brief History of the Internet’, p. 4 <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).

³⁰ ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 278 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

³¹ Id.

³² Id. at 279.

³³ Id.

³⁴ Id. Government or state-run.

³⁵ Id.

³⁶ Id.

³⁷ Id. at 282.

³⁸ Id. at 280.

³⁹ Some call this “generativity”, i.e. “a system’s capacity to produce unanticipated change through unfiltered contributions from broad and varied audiences.” J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 70 (2008).

⁴⁰ J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).

⁴¹ ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).

⁴² D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About Internet Governance’, Background Paper for the ITU Workshop on Internet Governance, Geneva, February 26-27, 2004, 8 <http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-internet-governance-background.pdf> (visited October 16, 2013).

⁴³ ‘‘Measuring the Information Society 2012’, International Telecommunication Union, 2012, Geneva, Switzerland, 6-7 <http://www.itu.int/en/ITU-D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited October 16, 2013). The International Telecommunication Union (ITU) is the United Nations’ specialized agency for information and communication technologies (ICTs).

⁴⁴ Id. at 10.

⁴⁵ “In the ‘Internet of things,’ objects such as household appliances, vehicles, power and water meters, medicines or even personal belongings such as clothes, will be capable of being assigned an IP address, and of identifying themselves and communicating using technology such as RFID and NFC.” ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 2 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

⁴⁶ Id.

⁴⁷ ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 2 <http://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/Documents/cyber-crime.pdf> (visited October 16, 2013).

⁴⁸ The Global Internet User Survey is “[a] worldwide survey of more than 10,000 Internet users in 20 countries conducted by the Internet Society revealed attitudes towards the Internet and user behavior online. The Global Internet User Survey is one of the broadest surveys of Internet user attitudes on key issues facing the Internet. This year’s survey covered areas such as how users manage personal information online, attitudes toward the Internet and human rights, censorship, and the potential for the Internet to address issues such as economic development and education.” The results are available at <https://www.Internetsociety.org/news/global-Internet-user-survey-reveals-attitudes-usage-and-behavior> (visited October 16, 2013). See also ‘Global Internet User Survey 2012’ <https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-20121120_0.pdf> (visited October 16, 2013).

⁴⁹ ‘Measuring the Information Society 2012’, International Telecommunication Union, 2012, Geneva, Switzerland, 7 <http://www.itu.int/en/ITU-D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited October 16, 2013).

⁵⁰ Id.

⁵¹ Id. at 10.

⁵² ‘Global Internet User Survey 2012’ <https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-20121120_0.pdf> (visited October 16, 2013).

⁵³ Id.

⁵⁴ ‘The State of Broadband 2012: Achieving Digital Inclusion for All’, Report prepared by the Broadband Commission for Digital Development, September 2012, 23 <http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited October 16, 2013).

⁵⁵ As cited by the Broadband Commission for Digital Development in ‘The State of Broadband 2012: Achieving Digital Inclusion for All’. The Broadband Commission was set up by the ITU and the United Nations Educational, Scientific and Cultural Organization (UNESCO) pursuant to the Millennium Development Goals (MDGs), 78 <http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited October 16, 2013).

⁵⁶ J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 96-97 (2008).

⁵⁷ “The term is said to have been coined in 1991 by D. James Bidzos, the then-president of RSA Data Security, when he said that the government’s digital signature standard provided ‘no assurance that foreign governments cannot break the system, running the risk of a digital Pearl Harbor.’ x x x The term has since become prominent in public debate, being employed most notably by former member of the National Security Council Richard A. Clarke.” J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 97 and 275 (2008).

⁵⁸ D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About Internet Governance’, Background Paper for the ITU Workshop on Internet Governance, Geneva, February 26-27, 2004, 8 <http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-internet-governance-background.pdf> (visited October 16, 2013).

⁵⁹ ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 5 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

⁶⁰ Id. at 6-7.

⁶¹ ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 3 (visited October 16, 2013), citing National insecurity, Information Age, January 26, 2011 and Stuxnet was about what happened next, FT.com, February 16, 2011.

⁶² “In 1994, the United Nations Manual on the Prevention and Control of Computer Related Crime noted that fraud by computer manipulation; computer forgery; damage to or modifications of computer data or programs; unauthorized access to computer systems and service; and unauthorized reproduction of legally protected computer programs were common types of computer crime.” ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 5 (visited October 16, 2013).

⁶³ ‘Love bug hacker is Pandacan man, 23’ <http://www.philstar.com/networks/83717/love-bug-hacker-pandacan-man-23> (visited October 16, 2013).

⁶⁴ ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 2 (visited October 16, 2013).

⁶⁵ Id. at 2, citing Cyber attacks: from Facebook to nuclear weapons, The Telegraph, February 4, 2011; A Good Decade for Cybercrime, McAfee, 2010; Spamhaus on March 10, 2011; PCMeg.com on March 10, 2011; and The cost of cybercrime, Detica, February 2011.

⁶⁶ ‘McAfee Q4 Threat Report Identifies New Attacks on Mobile Devices; Malware Growth at All-Time High’ <http://www.mcafee.com/mx/about/news/2011/q1/20110208-01.aspx> (visited October 16, 2013).

⁶⁷ Id.

⁶⁸ ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 6 (visited October 16, 2013)

⁶⁹ Id., citing The cost of cybercrime, Detica, February 2011.

⁷⁰ Id., citing Cybercrime in Germany on the rise, DW World, September 7, 2010.

⁷¹ Id., citing The cost of cybercrime, Cabinet Office (UK), February 2011.

⁷² M. Ziewitz and I. Brown, A Prehistory of Internet Governance, in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET 27 (2013). Available at <http://ssrn.com/abstract=1844720 (visited October 16, 2013).

⁷³ Id.

⁷⁴ Id.

⁷⁵ Id.

⁷⁶ Johnson, D. R. and D. Post (1995), 'Law and borders: The rise of law in cyberspace', Stan. L. Rev.,48, 1367, cited in M. Ziewitz and I. Brown, A Prehistory of Internet Governance, in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET 27 (2013). Available at <http://ssrn.com/abstract=1844720 (visited October 16, 2013).

⁷⁷ ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 3-4 (visited October 16, 2013).

⁷⁸ R. H. Weber, ‘Accountability in Internet Governance’, University of Zurich Professor, 154 <http://ijclp.net/files/ijclp_web-doc_8-13-2009.pdf> (visited October 16, 2013).

⁷⁹ J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).

⁸⁰ Id. at 3.

⁸¹ Id. at 70.

⁸² ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 51 (visited October 16, 2013).

⁸³ Id. at 52.

⁸⁴ Id. at 51-52.

⁸⁵ Id. at 51.

⁸⁶ Id. at 53.

⁸⁷ Id. at 11-12.

⁸⁸ Id. at 12.

⁸⁹ Id. at 64.

⁹⁰ Id.

⁹¹ Id. at 67.

⁹² ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 64 (visited October 16, 2013).

⁹³ African Union, 2012. Draft Convention on the Establishment of a Legal Framework Conducive to Cybersecurity in Africa.

⁹⁴ Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity Draft Model Bill.

⁹⁵ The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii) Model Law on Electronic Evidence.

⁹⁶ Commonwealth of Independent States, 2001. Agreement on Cooperation in Combating Offences related to Computer Information.

⁹⁷ Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.

⁹⁸ Council of Europe, 2007. Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

⁹⁹ Economic Community of West African States (ECOWAS), 2009. Draft Directive on Fighting Cybercrime within ECOWAS.

¹⁰⁰ European Union, 2005. Council Framework Decision 2002/222/JHA on attacks against information systems.

¹⁰¹ European Union, 2010. Proposal COM (2010) 517 final for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA.

¹⁰² European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud and counterfeiting of non-cash means of payment.

¹⁰³ European Union, 2011. Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA and European Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector.

¹⁰⁴ International Telecommunication Union (ITU)/Caribbean Community (CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.

¹⁰⁵ League of Arab States, 2010. Arab Convention on Combating Information Technology Offences.

¹⁰⁶ League of Arab States, 2004. Model Arab Law on Combating Offences related to Information Technology Systems.

¹⁰⁷ Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of International Information Security.

¹⁰⁸ United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.

¹⁰⁹ ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 12 (visited October 16, 2013).

¹¹⁰ The United Nations Convention Against Corruption “does not define ‘corruption’, but rather obliges States Parties to criminalize a specific set of conduct which can be more effectively described.” ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 12 (visited October 16, 2013).

¹¹¹ Id.

¹¹² Id. at 16.

¹¹³ Id.

¹¹⁴ Id.

¹¹⁵ Id.

¹¹⁶ Id. at 70.

¹¹⁷ Id.

¹¹⁸ African Union, 2012. Draft Convention on the Establishment of a Legal Framework Conducive to Cybersecurity in Africa.

¹¹⁹ Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity Draft Model Bill.

¹²⁰ The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii) Model Law on Electronic Evidence.

¹²¹ Commonwealth of Independent States, 2001. Agreement on Cooperation in Combating Offences related to Computer Information.

¹²² Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.

¹²³ Council of Europe, 2007. Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

¹²⁴ Economic Community of West African States (ECOWAS), 2009. Draft Directive on Fighting Cybercrime within ECOWAS.

¹²⁵ European Union, 2005. Council Framework Decision 2002/222/JHA on attacks against information systems.

¹²⁶ European Union, 2010. Proposal COM (2010) 517 final for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA.

¹²⁷ European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud and counterfeiting of non-cash means of payment.

¹²⁸ European Union, 2011. Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA and European Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector.

¹²⁹ International Telecommunication Union (ITU)/Caribbean Community (CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.

¹³⁰ League of Arab States, 2010. Arab Convention on Combating Information Technology Offences.

¹³¹ League of Arab States, 2004. Model Arab Law on Combating Offences related to Information Technology Systems.

¹³² Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of International Information Security.

¹³³ United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.

¹³⁴ 400 Phil. 904 (2002) [Per Curiam, En Banc].

¹³⁵See the Separate Opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, 400 Phil. 904,1092 (2002) [Per Curiam, En Banc].

¹³⁶See the Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc] citing Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413 (1972); United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697, 707 (1987); People v. De la Piedra, 403 Phil. 31 (2001); Broadrick v. Oklahoma, 413 U.S. 601, 612-613, 37 L. Ed. 2d 830, 840-841 (1973); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.Ed.2d 362, 369 (1982); United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960); Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912).

¹³⁷ 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].

¹³⁸David v. Arroyo, 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc] citing the Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc]; Broadrick v. Oklahoma, 413 U.S. 601 (1973); Younger v. Harris, 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971); United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).

¹³⁹ 479 Phil. 265 (2004) [Per J. Panganiban, En Banc].

¹⁴⁰ 576 Phil. 357 (2008) [Per J. Chico-Nazario, En Banc].

¹⁴¹ 573 SCRA 639 (2008) [Per J. Chico-Nazario, En Banc].

¹⁴²Romualdez v. Commission on Elections, G.R. No. 167011, December 11, 2008, 573 SCRA 639, 645 [Per J. Chico-Nazario, En Banc].

¹⁴³ G.R. No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc].

¹⁴⁴Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 186-189 [Per J. Carpio-Morales, En Banc], citing David v. Macapagal-Arroyo, 489 SCRA 160, 239 (2006) [Per J. Sandoval-Gutierrez, En Banc]; Romualdez v. Commission on Elections, 573 SCRA 639 (2008) [Per J. Chico-Nazario, En Banc]; Estrada v. Sandiganbayan, Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Consti., art. III, sec. 4; People v. Siton, 600 SCRA 476, 485 (2009) [Per J. Ynares-Santiago, En Banc]; Virginia v. Hicks, 539 U.S. 113, 156 L. Ed. 2d 148 (2003); Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).

¹⁴⁵ 151-A Phil. 656 (1973) [Per J. Makasiar, En Banc].

¹⁴⁶Philippine Blooming Mills Employment Organization et al v. Philippine Blooming Mills, Co. Inc., 151-A Phil. 656, 674-676 (1973) [Per J. Makasiar, En Banc].

¹⁴⁷ 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].

¹⁴⁸Chavez v. Gonzales, 569 Phil. 155, 197-198 (2008) [Per C.J. Puno, En Banc].

¹⁴⁹Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 185 [Per J. Carpio-Morales, En Banc].

¹⁵⁰ 344 U.S. 183 (1952).

¹⁵¹Wieman v. Updegraff, 344 U.S. 183, 195 (1952).

¹⁵² 376 U.S. 254 (1964).

¹⁵³New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).

¹⁵⁴ 371 U.S. 415 (1963).

¹⁵⁵National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 431-433 (1963).

¹⁵⁶ 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].

¹⁵⁷Chavez v. Gonzales, 569 Phil. 155, 219-221 (2008) [Per C.J. Puno, En Banc].

¹⁵⁸ Ponencia, J. Abad, p. 24.

¹⁵⁹ 13 Phil. 690 (1918) [Per J. Johnson].

¹⁶⁰ “An Act defining the law of libel and threats to publish a libel, making libel and threats to publish a libel misdemeanors, giving a right of civil action therefor, and making obscene or indecent publications misdemeanors.” This was repealed by the Revised Penal Code via Article 367, Repealing Clause.

¹⁶¹U.S. v. Bustos, 13 Phil. 690, 698 (1918) [Per J. Johnson].

¹⁶²New York Times v. Sullivan, 376 U.S. 254 (1964).

¹⁶³See Lopez v. Court of Appeals, 145 Phil. 219 (1970) [Per J. Fernando, En Banc]; Mercado v. Court of First Instance, 201 Phil. 565 (1982) [Per J. Fernando, Second Division]; and Adiong vs. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per J. Gutierrez, En Banc].

¹⁶⁴ Actual malice may mean that it was with the “knowledge that it was false or with reckless disregard of whether it was false or not.” See New York Times v. Sullivan, 376 U.S. 254, 268 (1964).

¹⁶⁵New York Times v. Sullivan, 376 U.S. 254, 268 (1964).

¹⁶⁶ Id. at 281-282.

¹⁶⁷ Id. at 269-273.

¹⁶⁸ 243 Phil. 1007 (1988) [Per J. Feliciano, En Banc].

¹⁶⁹ 361 Phil. 1 (1999) [Per J. Bellosillo, Second Division].

¹⁷⁰Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M. Capulong, 243 Phil. 1007, 1018-1019 (1988) [Per J. Feliciano, En Banc].

¹⁷¹ Id. at 1023-1024, citing Professors William Lloyd Prosser and W. Page Keeton, Prosser and Keeton on Torts, 5th ed. at 859-861 (1984).

¹⁷² 373 Phil. 238 (1999) [Per J. Mendoza, En Banc].

¹⁷³ Id. at 250-255.

¹⁷⁴ 508 Phil. 193 (2005) [Per J. Tinga, Second Division].

¹⁷⁵ Id. at 221-222.

¹⁷⁶ G.R. No. 164437, May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division].

¹⁷⁷Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA 1, 15 [Per J. Quisumbing, Second Division].

¹⁷⁸Estrada v. Sandiganbayan, 421 Phil. 290, 353 (2001) [Per J. Bellosillo, En Banc] citing NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231 (1960).

¹⁷⁹ 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.

¹⁸⁰ Revised Penal Code, Art. 353.

¹⁸¹ Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

¹⁸² Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

¹⁸³ Art. 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

¹⁸⁴ Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:chanRoblesVirtualawlibrary

(1) Prying into the privacy of another’s residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc., v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]. Justice Carpio was of the view that the defamatory article published in the case fell under Article 26 of the Civil Code.

¹⁸⁵See Tucker, C. and A. Matthews, Social Networks, Advertising and Antitrust, in GEORGE MASON LAW REVIEW, 19 Geo. Mason L. Rev. 1211, 1214.

¹⁸⁶See <http://www2.uncp.edu/home/acurtis/NewMedia/SocialMedia/SocialMediaHistory.html> (visited February 19, 2014).

¹⁸⁷See <http://im.about.com/od/imbasics/a/imhistory_3.htm> (visited February 19, 2014).

¹⁸⁸See <http://www.friendsreunited.com/About> (visited February 19, 2014).

¹⁸⁹ D. Garcia, P. Mavrodiev, and F. Schweitzer, Social Resilience in Online Communities: The Autopsy of Friendster. Available at <http://arxiv.org/pdf/1302.6109v1.pdf> (visited February 19, 2014).

¹⁹⁰See <http://www.huffingtonpost.com/2011/06/29/myspace-history-timeline_n_887059.html#s299557&title=July_2006_Number> (visited February 19, 2014).

¹⁹¹See S. Davis, STUDENT COMMENT: Social Media Activity & the Workplace: Updating the Status of Social Media, 39 Ohio N.U.L. Rev. 359, 361.

¹⁹²See <http://venturebeat.com/2013/09/16/how-twitter-plans-to-make-its-750m-users-like-its-250m-real-users/> (visited February 19, 2014).

¹⁹³See <http://abcnews.go.com/Business/twitter-ipo-filing-reveals-500-million-tweets-day/story?id=20460493> (visited February 19, 2014).

¹⁹⁴See <http://sourcedigit.com/4023-instagram-timeline-history/> (visited February 19, 2014).

¹⁹⁵ Guingguing v. Court of Appeals, 508 Phil. 193 (2005) [Per J. Tinga, Second Division].

¹⁹⁶ Guingguing v. Court of Appeals, 508 Phil. 193, 204-206 (2005) [Per J. Tinga, Second Division], citing New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).

¹⁹⁷ Id. at 207.

¹⁹⁸ 376 U.S. 254 (1964).

¹⁹⁹ New York Times v. Sullivan, 376 U.S. 254, 281-282 (1964).

²⁰⁰ See Guingguing v. Court of Appeals, 508 Phil. 193, 209-211 (2005) [Per J. Tinga, Second Division], citing Garrison v. Louisiana, 379 U.S. 64 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967), CJ Warren, concurring.

²⁰¹ D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 70 (2008).

²⁰² J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 17-18 (2008).

²⁰³ D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 71 (2008).

²⁰⁴ 18 Phil. 1 (1910) [Per J. Johnson].

²⁰⁵ J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 18 (2008) citing People v. Del Rosario, 86 Phil. 163 (1950).

²⁰⁶ These include cases that resolved the issue of guilt for the offense as well as cases that tackled procedural or jurisdictional issues and remanded the main issue to the trial court.

²⁰⁷ See Magno v. People, 516 Phil. 72 (2006) [Per J. Garcia, Second Division]; See also MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]; Villamar-Sandoval v. Cailipan, G.R. No. 200727, March 4, 2013, 692 SCRA 339 (2013) [Per J. Perlas-Bernabe, Second Division].

²⁰⁸ R. Pangalangan, Libel as Politics, in Libel as Politics 11 (2008). Note, however, our ruling in Crespo v. Mogul, 235 Phil. 465 (1987), where we said that, “it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. x x x The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court.”

²⁰⁹ See Brillante v. Court of Appeals, 483 Phil. 568 (2004) [Per J. Tinga, Second Division]; Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division].

²¹⁰ See Yuchengco v. Manila Chronicle Publishing Corporation, G.R. No. 184315, November 25, 2009, 605 SCRA 684 [Per J. Chico-Nazario, Third Division]; Bonifacio v. Regional Trial Court of Makati, Branch 149, G.R. No. 184800, May 5, 2010, 620 SCRA 268 [Per J. Carpio-Morales, First Division]. This case involved allegedly libelous articles published in websites.

²¹¹ See Buatis v. People, 520 Phil. 149 (2006) [Per J. Austria-Martinez, First Division]; See also Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division]; and Fortun v. Quinsayas, G.R. No. 194578, February 13, 2013, 690 SCRA 623 [Per J. Carpio, Second Division]. This case originated as a special civil action for contempt involving Atty. Sigfrid A. Fortun and several media outfits. However, this court expanded the concept of public figures to lawyers, stating that lawyers of high-profile cases involving public concern become public figures.

²¹² See Fermin v. People, G.R. No. 157643, March 28, 2008, 550 SCRA 132 [Per J. Nachura, Third Division]; Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24, 2012, 684 SCRA 521 [Per J. Peralta, Third Division].

²¹³ See Banal III v. Panganiban, 511 Phil. 605 (2005) [Per J. Ynares-Santiago, First Division]. See also Insular Life Assurance Company, Limited v. Serrano, 552 Phil. 469 (2007) [Per C.J. Puno, First Division].

²¹⁴ See Lagaya v. People, G.R. No. 176251, July 25, 2012, 677 SCRA 478 [Per J. Del Castillo, First Division]; Lopez v. People, G.R. No. 172203, February 14, 2011 642 SCRA 668 [Per J. Del Castillo, First Division]; Binay v. Secretary of Justice, 532 Phil. 742 (2006) [Per J. Ynares-Santiago, First Division]; See also Jalandoni v. Drilon, 383 Phil. 855 (2000) [Per J. Buena, Second Division]; Macasaet v. Co, Jr., G.R. No. 156759, June 5, 2013, 697 SCRA 187; Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division].

²¹⁵ See Yambot v. Tuquero, G.R. No. 169895, March 23, 2011, 646 SCRA 249 [Per J. Leonardo-De Castro, First Division].

²¹⁶Guingguing v. Court of Appeals, 508 Phil. 193, 214 (2005), citing Garrison, 379 U.S. 64 (1964). This court in Guingguing said that:chanRoblesVirtualawlibrary

Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the Court made this important qualification in Garrison:chanRoblesVirtualawlibrary

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once with odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

²¹⁷See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc. 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc] where he opined that the defamatory article published in the case falls under Article 26 of the Civil Code.

Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:chanRoblesVirtualawlibrary

(1) Prying into the privacy of another’s residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

²¹⁸ Globe Mackay Cable and Radio Corp. v. Court of Appeals, 257 Phil. 783, 783-785 (1989) [Per J. Cortes, Third Division].

²¹⁹ Philippine Journalists, Inc. (People’s Journal) v. Thoenen, 513 Phil. 607, 625 (2005) [Per J. Chico-Nazario, Second Division], citing Garrison v. Louisiana, 379 US 64 (1964), which in turn cited Justice Stewart’s concurring opinion in Rosenblatt v. Baer, 383 US 75 (1966).

²²⁰ Ponencia, J. Abad, 17-18. Citations omitted.

²²¹ Id. at 18.

²²²Pita v. Court of Appeals, 258-A Phil. 134, 146 (1989) [Per J. Sarmiento, En Banc], cited in Fernando v. Court of Appeals, 539 Phil. 407, 416 (2006) [Per J. Quisumbing, Third Division].

²²³Id., citing Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the movie version in Lady Chatterley’s Lover.

²²⁴ Id. at 146.

²²⁵ Id. at 147.

²²⁶ Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].

²²⁷ 354 US 476, 487 (1957).

²²⁸ Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985).

²²⁹ 413 US 15 (1973).

²³⁰ Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc], cited in Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006) [Per J. Quisumbing, Third Division].

²³¹ Id., cited in Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) and cited in Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006).

²³² 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc].

²³³ 539 Phil. 407, 417 [Per J. Quisumbing, Third Division].

²³⁴ G.R. No. 164785 and G.R. No. 165636, April 29, 2009, 587 SCRA 79 [Per J. Velasco, En Banc].

²³⁵ Id. at 101.

²³⁶ Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985) [Per C.J. Fernando, En Banc].

²³⁷ Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],

²³⁸ Rep. Act No. 10175, sec. 4(c)(1).

²³⁹ Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],

²⁴⁰ Rep. Act No. 10175, sec. 4(c)(1).

²⁴¹ 354 US 476 (1957).

²⁴² Id.

²⁴³ Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 233 (1985) [Per C.J. Fernando, En Banc].

²⁴⁴See C. MacKinnon, ONLY WORDS (1993).

²⁴⁵ Id. at 14.

²⁴⁶ Id. at 14-15, 89-90.

²⁴⁷ Id. at 14-15, 88-91. Catharine MacKinnon and Andrea Dworkin proposed a law that defines pornography as “graphic sexually explicit materials that subordinate women through pictures or words,” p. 22.

²⁴⁸ Id. at 9.

²⁴⁹ Id. at 87-88.

²⁵⁰ Id at 87. See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in DOING ETHICS 303 (2009).

²⁵¹See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 301.

²⁵²See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 309.

²⁵³See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics.

²⁵⁴See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 300-302.

²⁵⁵See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 301-302, 307.

²⁵⁶ Baker, E. C. REVIEW: Of Course, More Than Words. Only Words. Catharine A. MacKinnon. 61 U. Chi. L. Rev. 1181 (1994) 1197.

²⁵⁷ Id.

²⁵⁸ Id.

²⁵⁹ Id.

²⁶⁰ Id. at 1194.

²⁶¹ Id. at 1197-1211.

²⁶² Id. at 1199.

²⁶³ Id. at 1203.

²⁶⁴ Id. at 1204.

²⁶⁵ Id.

²⁶⁶ C. Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in J. Rosen and B. Wittes, eds., Constitution 3.0, 23 (2011), citing Justice Douglas in Papachristou v Jacksonville, 405 U.S. 156, 164 (1972) and W. H. Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?; or Privacy, You’ve Come a Long Way, Baby, 23 Kansas Law Review 1, 9 (1974).

²⁶⁷ G.R. No. 103956, March 31, 1992, 207 SCRA 712.

²⁶⁸ Id. at 719-720.

²⁶⁹ 535 Phil. 687 (2006).

²⁷⁰ Id. at 714-715.

²⁷¹See for instance J. Rosen et al., CONSTITUTION 3.0 FREEDOM AND TECHNOLOGICAL CHANGE (2011).

²⁷²See E.C. Baker, ‘Autonomy and Informational Privacy, or Gossip: The Central Meaning of the First Amendment’, (visited February 21, 2014).

²⁷³ 367 Phil. 703 (1999).

²⁷⁴ Id. at 715.

²⁷⁵ G.R. No. 164815, September 3, 2009, 598 SCRA 41.

²⁷⁶ Id. at 59.

²⁷⁷ 259 Phil. 541 (1989).

²⁷⁸ Id. at 549.

²⁷⁹ G.R. No. 95902, February 4, 1992, 205 SCRA 791.

²⁸⁰ Id. at 798.

²⁸¹ G.R. No. 86218, September 18, 1992, 214 SCRA 63.

²⁸² Id. at 68-69.

²⁸³ G.R. No. 105834, February 13, 1995, 241 SCRA 277.

²⁸⁴ Id. at 283-284.

²⁸⁵ G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.

²⁸⁶ Id. at 728-729.

²⁸⁷ Rep. Act No. 10173, otherwise known as the “Data Privacy Act of 2012.?

²⁸⁸ Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session

²⁸⁹ Id. at 279.

²⁹⁰ 328 Phil. 893 (1996) [Per J. Puno, En Banc].

²⁹¹ Id. at 933. “Presently in the United States, the clear and present danger test is not applied to protect low value speeches such as obscene speech, commercial speech and defamation.”

²⁹² 561 Phil. 386 (2007) [En Banc].

²⁹³ Id. at 449.

²⁹⁴ Id. at 449-450.

²⁹⁵ 569 Phil. 155 (2008) [En Banc].

²⁹⁶ Id. at 237.

²⁹⁷ Id.

²⁹⁸ Id. at 244.

²⁹⁹ Id.

³⁰⁰ Page 14 of Justice Roberto Abad’s February 7, 2014 draft.

³⁰¹Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557> (visited February 13, 2014).

³⁰² Id.

³⁰³Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976) <http://caselaw.lp.findlaw.com/cgi bin/getcase.pl?friend=llrx&navby=volpage&court=us&vol=425&page=765> (visited February 21, 2014).

³⁰⁴ Id.

³⁰⁵Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557> (visited February 13, 2014).

³⁰⁶ Id. There are contrary opinions, but their reasoning is not as cogent. As explained by Justice Clarence Thomas in his concurring opinion in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996): I do not see a philosophical or historical basis for asserting that ’commercial’ speech is of ’lower value’ than ’noncommercial’ speech. Indeed, some historical materials suggest the contrary.

As noted by Aaron A. Scmoll, referring to the United States Supreme Court Decision in 44 Liquormart,: “While Stevens and several other Justices seemed willing to apply strict scrutiny to regulations on truthful advertising, a majority seemed content to continue down the path Central Hudson created. The strongest reading drawn from 44 Liquormart may be that as to complete bans on commercial speech, the Court will strictly apply Central Hudson so that in those cases, the analysis resembles strict scrutiny.” Schmoll, Aaron A. (1998) ’Sobriety Test: The Court Walks the Central Hudson Line Once Again in 44 Liquormart, but Passes on a New First Amendment Review, ’Federal Communications Law Journal: Vol. 50: Iss. 3, Article 11.

³⁰⁷ Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC PERSPECTIVES, 26(3): 87-110 (2012).

³⁰⁸ Id.

³⁰⁹ ‘The Bad Guys from Outside: Malware’, http://www.ciscopress.com/articles/article.asp?p=1579061&seqNum=4 (visited February 14, 2014).

³¹⁰ ‘Spam: The Silent ROI Killer’, < http://www.spamhelp.org/articles/d59.pdf> (visited February 14, 2014).

³¹¹ Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC PERSPECTIVES, 26(3): 87-110 (2012).

³¹² Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC PERSPECTIVES, 26(3): 87-110 (2012).

³¹³ ‘California Man Guilty of Defrauding AOL Subscribers, U.S. Says’, (visited February 14, 2014). On spam laws, < http://www.spamlaws.com/aol-phishing.html> (visited February 14, 2014).

³¹⁴ Rep. Act No. 10175, sec. 4 (c) (3).

³¹⁵ Rep. Act No. 10175, sec. 4 (c) (3).