Sunday, November 27, 2011

A comprehensive cyberspace law as an incontrovertible necessity in the Philippines

In 1999, as a law student, I co-authored a legal paper calling for the enactment of a comprehensive cyberspace law in the Philippines. There were just a handful of email services at that time, ICQ was the social networking site aside from the IRC, the bandwidth was inadequate to support fast video streaming, and you had to dial for access using a noisy modem. Despite the explosion on Internet usage and uses and tremendous increase of Web-users in the Philippines since then, such a law has yet to be enacted. The following excerpts serve as the paper's conclusion:

"From the discussion of evolution and continuing development of the Internet and the exponential growth of services and information provided online, this study has shown that there exist compelling reasons for legislative reform and extra-statutory measures.  While in other jurisdictions, especially in technologically advanced countries with heavier dependence on the Internet, “cyberspace law” has gained recognition as a field in itself, in the Philippines, this has yet to happen.

In October 26, 1998, President Joseph Ejercito Estrada signed Executive Orders No. 34 and No. 35, both seeking to commence action on the part of government to keep in step with the information revolution.  Executive Order No. 34 directs the National Computer Center (NCC) to design and build an integrated Government Information Infrastructure (GII), presumably in the same, if not downscaled, mold as the United States’ National Information Infrastructure.  Executive Order No. 35 provides for the restructuring of the National Computer Center, as the central executive agency that will oversee the coordination and integration of government policies, programs and projects relating to the information infrastructure. 

While laudable in intent and principle, these measures may be endangered by the inaction of government in dealing with computer and Internet abuse.  The acts here discussed – hacking, the sending of viruses, and spamming and email overflow – already pose as threats to the GII, even before it is formally set up.  Without decisive and swift action by government, particularly in the field of legislative reform, the technological advancement envisioned may actually be a disastrous step into backwardness.  At present, even without the GII, domestic hacking, creation and sending of viruses, and spamming are prevalent.  With the GII, government records and data, including confidential and sensitive information relating to national security and state programs, are likewise exposed to danger if measures to prevent and respond to abuse are not in place.

In the meantime, pending legislative reform, this study has sought to provide alternative means of penalizing hackers and crackers, disseminators of viruses and other malicious code, and spammers, whether criminally or civilly.  It has been shown that these are not traditional crimes and can not thus be adequately analogized and penalized as such.  As to civil actions, substantive law might be adequate, in the sense that the elements of actionable conduct are fulfilled.  However, perhaps an even greater challenge is hurdling problems that may be encountered procedurally, such as the acquisition of jurisdiction, the admissibility of electronic and digital information as evidence, and other considerations, which if unresolved, could ultimately defeat a civil or criminal action or recoverability of damages.

Legislative reform and other domestic measures must also be resorted to alongside trans-border efforts to penalize Internet abuses.  This is a necessary consequence of the “borderless” nature of the Internet itself.  International cooperation will have to be forged to effectively respond to rising incidence of criminality and tortious acts on the Internet.  Such international cooperation will have to include not only governments, but the private sector as well.  Government regulation on the Internet has received much resistance from sectors who believe that regulation will impede further advancements on the Internet.  However, the Internet has proven to be a new arena for conflict, where interests are asserted and threatened – without some form of regulation, how will interests be allocated and rights protected?

The recognition of government that the Internet is such an arena, and that it is in the interest of the State to treat it as such, constitutes the single most important initial step in dealing with Internet abuse."

To date, apart from E-Commerce Law and Cybercrime Prevention Act, no pro-active and up-to-date law on cyberspace and the Internet has been enacted, 17 years since the Philippines became a member of the National Science Foundation Network (NSFNET) -- in 1994. It's about time.  

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