More on the Cybercrime Prevention Act of 2012

BY THE time you are reading this the Cybercrime Act would have already taken effect, including its very ominous Section 12.

Not many have commented on the effects of this particular Section of the law, which provides that 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.”

Essentially, this provision of the law states that law enforcement authorities, namely, the NBI and the PNP, can collect and record the data on your computer based on due cause which they themselves will determine.

In other words, either the NBI or the PNP or any of the other law enforcement authorities now have the authority to record and collect the traffic data on your computer (which, under this law, includes your cellphones) even without a warrant from any Court of Law. Under this law, it is the NBI and the PNP themselves who will determine whether or not there is “cause” to collect or record traffic data.

This is a substantial increase in the powers of law enforcement authorities, and if left unchecked, may be subject to abuse.

In fact, since the law is already in effect, any person’s traffic data could very well be monitored, recorded and collected now. There would be no way for one to know that he or she is being monitored under this provision until a case is already filed based on the traffic data obtained.

This, to me, is alarming.

Note that traffic data is the only data which may be collected and recorded by law enforcement authorities without a warrant. Traffic data is defined by the law as “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.”

Nevertheless, this seems to be an invasion of the right to privacy, which, as the former Chief Justice Puno would say, “is entrenched in Article III of the 1987 Constitution of the Philippines which contains the Bill of Rights.”

In the past, the Supreme Court has been very protective of the right to privacy. In one case, the Supreme Court even disallowed visitation rights because it would infringe on the person’s right to privacy. (See generally Ilusorio v. Bildner, G.R. No. 139789. May 12, 2000). In another case, the Supreme Court declared an Administrative Order unconstitutional because it authorized the collection of private data for a national ID System which the Supreme Court found violated the right to privacy. (See Ople v. Torres, G.R. No. 127685. July 23, 1998).

In light of such jurisprudence, the Supreme Court should, in my opinion, continue to protect the right to privacy by declaring the Cybercrime law unconstitutional.

But as I had previously written, “[u]ntil this law is repealed, amended or declared unconstitutional, it remains valid and existing law. As such, all Internet users, bloggers, Facebook fanatics, twitter addicts and online media people must be very careful with their online words and acts.”

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Atty. Kelvin Lee is a Partner of the San Juan Tayag Lee & Verga Law
Offices and a consultant of the Siguion Reyna Montecillo & Ongsiako Law
Office. The opinions expressed herein are his own. You can reach Kelvin at kelvinlesterlee@gmail.com