Cybercrime legislating: Lessons learned, hopefully

That government websites are being hacked to protest arguably horrible portions of the Cybercrime Prevention Act is inarguably wrong. It presents a Machiavellian streak. Hacking is malicious and destructive; it imperils public safety. Employing it cannot justify the end of pointing up the new law’s flaws, like overly harsh penalties for libel on the Net.

If at all, the hackings bolster the need for a law to penalize abuses in cyberspace. Foremost of these are child porn, identity theft, scamming, spamming, cyber-squatting, digital forgery, malware writing, hateful slurring. Too, of course, the various goals of hacking: data and system interloping, vandalism, sabotage, and fraud.

So far more than a dozen government websites have been hacked. These include those of the National Bureau of Investigation, the National Police, and field stations. It has yet to be learned if disinformation and computer viruses or worms have been implanted. Will the attacked websites one of these days suddenly pop up false disaster alerts while blocking real ones? Let’s pray not, for anything’s possible.

The NBI has verified that at least one hacking cabal strikes from abroad. Could it be, employed by enemy governments, practicing how to sabotage Philippine telecoms in case of territorial hostilities? Most of the attackers presumably are based domestically. They may be plain, albeit misguided, protesters. Yet such “hacktivists” — riding on the wave of popular protest — could be the very pornographers, identity thieves, scammers, spammers, cyber-squatters, computer forgers, and mercenary trolls that Republic Act 10175 aims to curtail.

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Also disturbing is the seeming belittling by high officials of the Supreme Court’s exclusive power to review the Cybercrime Law. Fifteen petitions have been filed to declare unconstitutional certain provisos pertaining to on-line defamation. One moment both President Noynoy Aquino and Senate President Juan Ponce Enrile exhorted the parties to let the Tribunal rule. Yet the next moment they opined that the law is satisfactory.

Justice Sec. Leila de Lima, whom the law imbues with awesome control over cyberspace, echoed them, saying that only the malevolent and malicious have reason to fear R.A. 10175. On the other hand, Sen. Miriam Santiago, head of the Senate body on constitutional changes, said the SC surely would strike down the law.

To recall, the 15 petitioners are opposing only the inclusion of libel as a cybercrime, in light of certain constitutional rights and bans:

• Freedom of speech and expression, as cyber-libel could be abused for prior restraint from legitimate criticism of public officials and policies.

• Equal protection, as cyber-defamation would draw harsher penalty, up to 14 years in prison, whereas the Penal Code imposes less than half on ordinary libel.

• Due process, as R.A. 10175 empowers the Department of Justice to shut down any website, e-mail address, social networking account, etc., on suspicion or imputation of libel, no need for court warrant.

• Security of persons, houses, papers, and effects, as lawmen may eavesdrop on a suspected slanderer.

• Privacy of communications and correspondence, as the law defines cyberspace to include mobile-phone conversations, texting, visuals, etc.

• Double jeopardy, as a libeler can be prosecuted, convicted, and punished separately under the Cybercrime Law and the Penal Code.

• Speedy disposition of cases, as R.A. 10175 specifies no prescription period for libel, which under the Penal Code is six months.

• Vagueness, as the law does not delimit libel “accomplices and accessories,” and so can be impleaded even the Internet or mobile service provider, website administrator, e-mail browser (Google, Yahoo), and perhaps Facebook creator Mark Zuckerberg.

• Haphazard legislation, as the libel proviso was inserted not during open plenary deliberation but — by the Senate panel — in the closed-door bicameral committee conference, then ratified by Congress without due reporting to the members the changes in the bill’s wordings.

The SC yesterday temporarily halted implementation of the law. It will then weigh up the contentious points. Thus, premature talk by high legislative and executive officials could be construed as swaying the independent judiciary.

Pre-empting the Tribunal can also boomerang on political images. Lapses by Congress and Malacañang might be made obvious. In Mr. Aquino’s case, that he signed into law a libel rider that has a chilling effect a la Martial Law that his parents fiercely fought. In Enrile’s case, that his chamber mates can be sneaky. In de Lima’s case, that her adjunct Office of the Solicitor General might lose arguing the law’s validity in the SC. And in Santiago’s, that she is damning the law, when reportedly she was one of seven senators in the panel that inserted the libel proviso.

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A funny thing happened on the way to the Comelec in Dagupan City last week. As current Vice Mayor Belen Tan Fernandez was about to file her candidacy for mayor, she learned that someone already had done so for her. It turned out that the earlier filer, also for mayor, was one Belen Tamondong Fernandez.

Immediately the press interviewed the latter, 66, a poor, frail trader and political tyro. Overwhelmed by the tape recorders and video-cams, she confessed to having been goaded by another high city official to run to confuse the voters. Among the inducements, if she succeeds in making her namesake lose: cash, groceries, a house-and-lot.

Conscience-stricken, the lesser-known Belen later withdrew candidacy. She said she had no real intent, much less the wherewithal, to run for mayor.

And so the city mayoralty race is down to Belen Tan Fernandez and reelectionist Benjie Lim. Voters chuckle that it’s a battle of mall moguls, as both own competing mall chains in Pangasinan province.

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