By Raïssa Robles
With a bit more digging, I have found out SIX MORE THINGS how Congress came up with a horrible Cybercrime Law.
FIRST, we owe the present law mainly to 19 lawmakers who crafted the final version in a Bicameral Conference Committee.
The Bicam – senators and congressmen working together to hammer out one bill –was co-chaired by Senator Edgardo Angara and Congressman Sigfrido Tinga. I tried interviewing Angara, the main sponsor, last week but was told he was in Rome. I set an appointment but has yet to get word about it to date.
The Senate was represented by Senators Angara, Miriam Defensor-Santiago, Jinggoy Estrada, Ferdinand “Bongbong” Marcos, Antonio Trillanes, Bong Revilla and Manuel Villar, according to Senate records.
The House of Representatives was represented by Tinga (leader of the House contingent), Juan Edgardo “Sonny” Angara (Aurora), Diosdado “Dato” Macapagal, Jr. (Camarines Sur), Roilo Golez (Paranaque) Miro Quimbo (Marikina), Susan Yap (Tarlac), Ma. Rachel Arenas (Pangasinan), Eric Singson Jr. (Ilocos Sur), Teodoro Marcelino (Marikina), Mel Sarmiento (Western Samar), Cesar Sarmiento (Catanduanes) and Rufus Rodriguez (Cagayan de Oro City).
Macapagal’s mother, Congresswoman Gloria Macapagal-Arroyo, was listed as one of the bill’s co-sponsors.
Congressman Angara is Senator Angara’s son who is now running for senator.
SECOND, the Cybercrime Prevention Act was a “priority legislation” of President Benigno Aquino III and could therefore be rushed through Congress. Even faster than the Reproductive Health (RH) bill and the Freedom of Information (FOI) bill, it turns out.
THIRD, it was
Senator Pia Cayetano who at the Senate “inserted” – according to the Senate Journal of January 24, 2012 – that two highly controversial provisions were inserted: The Real Time Collection of Traffic Data and the “take down.” The latter, especially, gives the Department of Justice awesome powers to block Filipino access to websites that are the subject of complaints.
But at the time that
Cayetano (a lawyer) had proposed it and Angara had acceded to the insertion, it did not quite have the potential to enable the justice department to build the equivalent of the “Great Firewall of China”, which would in effect censor the Internet. I’ll explain that later.
UPDATE: As of 10:30 pm, October 8, 2012
The Office of Sen. Pia Cayetano has provided the actual transcript of the January 24, 2012 Senate proceedings. Accordingly, I am inserting corrections in this report that it was not Sen. Pia Cayetano who had inserted the two controversial provisions I mentioned. Sen. Cayetano’s Facebook Fan Page stated it was Sen. Edgardo Angara who had inserted these. But the transcript does not indicate that too. All we know is that these were inserted during the period of amendments at the Senate.
I am explaining what had happened in my new post entitled: To the staff of Senator Pia Cayetano
UPDATE: As of 8:15 am, Oct 5, 2012
The “Office of Sen. Pia Cayetano” told me on the social networking site “Twitter” this morning that it wasn’t she who had inserted the two controversial provisions.
When I asked WHO and “was it Senator Angara?”, the one twitting did not reply. But promised to send me documents to prove it.
The Senate Journal indicated the amendments under the heading – “Remarks of Sen. Cayetano.”
The one on Twitter said:
“Journal says so, as clear as day. If those were hers, the Journal would have bore the heading “Sen @piacayetano amendments.”
I am awaiting the docs.
FOURTH, It was the bicam committee that unlocked the DOJ’s enormous power to censor the Internet because of a section that the bicam added to the law. I will also explain this later.
FIFTH, the House of Representatives approved its version of the Cybercrime bill on Third Reading in “por kilo” fashion. This national law was sandwiched among 40 other mainly local bills and the entire lot was approved at one go during one voting under the direction of Congresswoman Mar-Len Abigail
“Nancy” Binay, who was then the presiding officer. She is the daughter of Vice-President Jejomar Binay and is now running for senator. This means by simply voting “Yes” just once, each congressman signified approval of ALL 41 bills, including the Cybercrime bill.
UPDATE: As of Oct 5, 2012 7:01 AM -
Mar-Len and Nancy Binay are two different Binay daughters. Nancy is the eldest duaghter, currently working under Vice-President Jejomar Binay. I never imagined there were that many Binays wanting to run for office.
SIXTH, among those who had approved the House version of the Cybercrime bill on Third Reading was Congressman Teddy Casiño (who is running for senator). He explained to me why he backed the bill at that time.
Anakbayan Kabataan Partylist Representative Mong Palatino told me he himself doesn’t recall approving the bill on Third Reading even though his name is listed in the House journal as having voted “yes”.
And now for the nitty gritty details of how the law was made
For starters, let’s review briefly how Congress passes a law. The 1987 Constitution merely states that every law has to undergo THREE READINGS in both chambers of Congress “on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency.”
The Cybercrime Crime law was a “certified” piece of legislation by PNoy, according to House Journal 49 on the May 9, 2012 floor deliberations. [Note: It was for this reason that its passage was rushed.] On the same day, amendments to the bill were introduced and the bill was approved on SECOND READING.
Por kilo approval
On May 16, 2012 – only a week after the SECOND READING – the House approved the Cybercrime Bill on THIRD READING. What actually happened was that someone read out the titles of 41 bills up for Third Reading, according to House Journal No. 50. Most of them dealt with establishing high schools or a fish port or converting an existing road into a national road or establishing a Land Transportation Office in a certain village or declaring a non-working holiday in a certain town. The Cybercrime bill was number 26 among the names of the 41 bills read out.
It was for this reason that Congressman Neri Colmenares told me in an interview that he was unaware the Cybercrime Law was approved on May 16:
That’s really a surprise for me. Pag national bill dapat separate approval. [This should be approved separately by itself.]
I asked him where in the House rules is that stated.
Colmenares replied it was “a tradition” to approve local bills en masse, but not national bills of national significance like the Cybercrime Act. The journal did not have him casting any vote on the Cybercrime bill on Third Reading.
Personally, from what I know, the Constitution empowers each chamber of Congress to make its own rules of procedure. And if the majority allow this kind of wholesale approval and no one really questions it, then it continues.
Congressman Raymond “Mong” Palatino was only one of two lawmakers who officially expressed objections to certain sections of the Cybercrime bill. I asked him why House Journal No. 50 says he had voted “Yes” on Third Reading.
I don’t recall I ever voted for the Cybercrime habang nandoon ako sa plenary. Hindi ko inexpect na ganon kabilis. May 9 lang ako nag-interpellate. [I don't recall I ever voted for the Cybercrime bill on Third Reading during the May 16 plenary. I did not expect it to be that fast since I only interpellated on May 9.]
Maaring nandoon ako ng alas-cuatro, nagbotohan 5:30. Dahil walang nag-object nilagay na ang lahat na nandoon sa roll-call na bumoto ng yes. [I may have been present at the plenary at 4 pm, but the voting happened at 5:30 pm. Because no one objected, they must have just placed all those present at the roll-call as having voted "yes".]
The May 16, 2012 House Journal No. 50 stated that Palatino was present at 4 PM. However, after 5 PM, the Journal stated:
The Chair ( Mar-Len Abigail Binay) directed the Secretary General to call the Roll for nominal voting. Thereafter, pursuant to the Rules of the House, a second Roll Call was made.
RESULT OF THE VOTING
The result of the voting was as follows:
Del Rosario (A. A.)
Del Rosario (A. G.)
With 211 affirmative votes, no negative votes and no abstentions, the Body approved on Third Reading the aforementioned Bills.
And that was how the House approved the Cybercrime bill on Third Reading.
Congressman Teddy Casiño explains his “YES” vote on Third Reading
I phoned House Speaker Feliciano Belmonte to ask him about his “Yes” vote. He did not answer his mobile. Neither did Congressman Roilo Golez.
Fortunately, I got through to Congressman Casiño.
Casiño confirmed that he did vote for the Cybercrime bill on Third Reading:
Because it was a good law when it passed the House. Our version had no libel (clause).
Casiño explained to me that both Congressmen Palatino and Tonchi Tinio had succeeded in removing “cyberdefamation” from the House version during the period of amendments. [Note: Cyberdefamation includes libel which is smearing someone in print; and slander which is oral defamation.]
From the start we were alarmed. We talked about it. There were seven versions of this bill. We decided we have to remove the objectionable provisions, the somewhat draconian provisions. We did that in the plenary. We removed cyberdefamation. We ensured that all actions of the Department of Justice when it comes to search and seizure should be covered by court warrants to ensure due process.
Casiño said that as far as he knew, the House version that was approved on Third Reading no longer carried cyberdefamation and had tightened the search and seizure provisions.
But the Senate “inserted” online libel and a “take down” provision to the law
Separately on January 24, 2012, the Senate held its floor deliberations and period of amendment on its own Cybercrime bill.
It was on that day that Senator Vicente Sotto III inserted “online libel”, which was never in the consolidated bill that Senator Angara, the principal sponsor, had presented as the working draft.
Sotto was the last senator to propose amendments and he himself moved to close the period of amendments.
Before Sotto spoke,
however, Senator Pia Cayetano inserted her own amendments to the bill. Angara told his colleagues what amendments he had accepted. Cayetano successfully replaced this section in Angara replaced the following in the consolidated bill:
28 SEC. 9. Real-time Collection of Computer Data. — Law enforcement authorities,
29 with due cause, and upon securing a court warrant, shall be authorized to collect or record
30 by technical or electronic means, and service providers are required to collect or record
31 by technical or electronic means, and/or to cooperate and assist law enforcement
32 authorities in the collection or recording of, traffic data, in real-time, associated with
33 specified communications transmitted by means of a computer system.
her own this amendment which went this way:
SEC. 9. 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
MEANS OF A COMPUTER SYSTEM.
TRAFFIC DATA REFER NOT ONLY
TO COMMUNICATION’S ORIGIN, DESTINATION,
ROUTE, TIME, DATE, SIZE,
DURATION, OR TYPE OF UNDERLYING
SERVICE, BUT NOT CONTENT, NOR
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
Cayetano, a lawyer, also successfully inserted this new section, which Internet and the Law expert JJ Disini calls this new section “the take down provision”:
SEC. 13. RESTRICTING OR BLOCKING
ACCESS TO COMPUTER DATA. – WHEN
A COMPUTER DATA IS PRIMA FACIE
FOUND TO BE VIOLATIVE OF THE
PROVISIONS OF THIS ACT, THE CENTRAL
AUTHORITY SHALL ISSUE AN ORDER TO
RESTRICT OR BLOCK ACCESS TO SUCH
She was only referring to the cyber offenses like cybersex.
But after Sotto’s inclusion of “online libel”, this meant that “real-time collection of traffic data” and the “take down provision” could also be applied to this crime of cybersex. This also meant that websites which commit “online libel” could be blocked and the alleged perpetrator could be subjected to electronic surveillance.
What happened at the Bicam Conference on the Cybercrime Law
During the Bicam Conference on the law, the 19 lawmakers collectively decided to adopt the Senate version as THE BASIS for the consolidated version.
This meant that Senator Sotto’s insertion of “online libel” and
Senator Cayetano’s the insertions on “real-time collection of traffic data” and the “take down” provision automatically became part of the final version of the law.
In addition, the Bicam did something that greatly expanded the scope of the Cybercrime Law. Instead of this being restricted to the listed electronic crimes of cyber-squatting, hacking and cybersex, it covered the entire body of crimes found in the Revised Penal Code and all special laws.
All because someone in the the Bicam inserted an entirely new section, which used to be a sub-section in the House bill version.
Let me explain the huge impact of this, but I have to back-track a little.
When I talked to Congressman Casiño, I had asked him how he could have voted “yes” for the House version of the Cybercrime bill that had crammed the entire Revised Penal Code into the bill without taking into account the nature of the Internet.
For instance, I told him, if a woman commits adultery using a computer, she would be guilty of a cybercrime and her penalty would be one degree higher.
Casiño told me that would not happen since adultery is not among the cybercrimes enumerated by the House bill on Third Reading. He also said that making the penalty for cybercrime offenses one degree higher was never in the House version.
But I pointed out to him that the House version contained the following paragraph under “Section 4: Cybercrime Offenses”
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 technologies shall be covered by the relevant
provisions of this Act.
Casiño told me he was not bothered at all by this inclusion of the Revised Penal Code because it was under Section 4, listing the crimes of cyber-squatting, hacking, computer fraud and forgery, cybersex and advertising spam. This meant, Casiño said, that only those crimes in the Revised Penal Code that had to do with similar offenses were covered.
It was then I understood what the Bicam Conference did which exponentially expanded the scope of the Cybercrime Law.
If you notice, all Philippine laws are written in the form of an outline in order to show clearly the relation of one part to all the other parts. CHANGING THE LOCATION OF A SINGLE PARAGRAPH can have profound effects on the meaning of the law.
This was what happened to the Cybercrime Law. Let me explain with a simple illustration.
Suppose a certain school named Wanbol University issued a set of rules of behavior for its students.
The rules were issued in outline form:
Rules of Student Behavior in Wanbol University
1. During exams:
(a) Students cannot glance at their seat mate’s test paper
(b) Students cannot use calculators
(c) Students cannot go to the bathroom
However, someone edited it and what came out was the following:
Rules of Student Behavior in Wanbol University
1. During exams:
(a) Students cannot glance at their seat mate’s test paper
(b) Students cannot use calculators
2. Students cannot go to the bathroom
From this example, you can see that the original intention of Wanbol was to bar students from going to the bathroom only during exams. But with the editing, the Wanbol students are barred from going to the bathroom at all times.
A similar thing happened at the Bicam Committee on the Cybercrime Law. The Bicam lifted that portion of Section 4 that had to do with the Revised Penal Code – insofar as the listed cyberoffenses were concerned – and placed this as a new section.
Senator Angara told senators on June 5, 2012 that the Bicam did the following:
A new Section 6 was added to the reconciled
version which reads as follows:
“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 degree higher than that provided
for by the Revised Penal Code and special
Implications of Bicam’s insertion of Section 6
This insertion not only turned all jailable crimes in the country into cybercrimes. It added that “if committed by, through and with the use of information and communications technologies…the penalty imposed shall be one degree higher…”
To use my previous example of the case of the woman accused of adultery, because of Section 6, if a married woman’s e-mail to her lover were submitted as evidence, her penalty if convicted automatically becomes one degree higher.
And even if we were to remove the “online libel” section inserted by Senator Sotto, libel will still be a cybercrime if Section 6 is retained.
In addition, if you relate Section 6
to Senator Pia Cayetano’s the “take down” provision, you will have many many more requests to block sites. And as Atty JJ Disini explained to me in an interview:
When you add up all the requests together [for blocking content] – whether the requests involve copyright or trademark infringement, entire domain names, or any other kind of violation of Philippine law, then the sum is equivalent to the ‘Great Firewall of China’.
The Constitution is silent on the role of Bicam Committees.
“It can do anything,” Congressman Casiño said. “That’s the Third House. The weakness is that whatever the result of the Bicam, the House members are no longer told. We only know what the Bicam version contained after the President signs it into law.”