Cybercrime law was 'cut-and-paste' lawmaking?

by Jojo Malig,

Posted at Oct 09 2012 09:18 PM | Updated as of Oct 10 2012 05:27 AM

MANILA, Philippines - The controversial  Republic Act No. 10175 or the Cybercrime Prevention Act of 2012 could have been a product of shoddy lawmaking, a technology law expert said Tuesday.

Atty. JJ Disini, who is among groups and individuals who filed the 15 Supreme Court petitions questioning the cybercrime law, said the statute should have been laid out and written better.

"There is a tendency to cut and paste," he said, referring to the lawmaking process in the country.

Disini said the cybercrime law, which has been suspended for 120 days following a Supreme Court temporary restraining order, was initially modeled after the  Budapest Convention on Cybercrime.

However, the Philippine version fares poorly compared to the international pact, he said.

"The quality of the language is not as good as in the provisions that were lifted from the Budapest Convention. It could have been tighter, better said or provided," he added.

Disini said some of the provided cybercrimes like cybersquatting, identity theft and even the provision on spam and cybersex are not in the Budapest Convention.

Online criminal libel is also not in the convention.

Disini said while the Department of Justice (DOJ) has done well in moving for the Philippines' accession in the convention, "there was just a disconnect with how it was expressed in the law."

"On the whole, this is a good law. Kailangan natin ito but on the other hand, there are some provisions which are objectionable," he said

"The problem is that, there are so many things they want to put into the implementing rules and regulations," he added. "It's not up to the DOJ to determine what its power is. The power should be clearly vested and delineated by Congress."

DOJ also comes up short

He also said DOJ Assistant Secretary Geronimo Sy's explanations at a forum Tuesday failed to adequately address issues regarding the law, particularly on Constitutional red flags.

"Asec [Assistant Secretary] Sy gave it his best shot in defending the law, but some of his arguments, at least from my view,  fell a little too short," he said. Some of his arguments were not good enough."

As an example, he cited the provision that penalizes cybersex.

Disini said under the law, victims of cybersex operations will be more criminally liable.

"If you read the provision, the one who is penalized is the one who is making the exhibit, the lascivious exhibition online, not the person who is paying," he said.

He added that the statute does not clearly say that those financing cybersex operations are covered and penalized.

Telco worries

He also said telco industry representatives are concerned with law's so-called "takedown" provision.

"They were concerned about obligations to conduct real-time monitoring of data traffic. From their standpoint, they don't want to pay for that," he said.

He believes that the monitoring of real-time data traffic will see the government install monitoring machines in telcos' network operations center.

The machines will allow the government to to see which websites people will visit, Disini said.

"They will know what sites you went to, how long you stayed there, which pages you looked at, when you went into those sites," he added.

"It's a type of surveillance that violates the right to privacy," he said.

Disini said lawmakers who have announced plans to amend the law should now act.

"Hopefully, moving forward is they have expressed an intention to make corrective changes. I hope that process would be inclusive and the online community could involve themselves into those process," he said.