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REPUBLIC OF THE PHILIPPINE 2113 MAR I I

ORIGINAL

11 4: 112

SUPREME COURT
MANILA

*,\'a^^ "it' ' 1.01^

LOUIS "BAROK" C. BIRAOGO,

E^^

Petitioner,
- versus -

G. R. No. 203299

NATIONAL BUREAU OF INVESTIGATION, at al. ,

Respondents.
X X

ALAB NG MAMAMAHAYAG (ALAM), at al. ,

Petitioners,
- versus -

G. R. No. 203306

OFFICE OF THE PRESIDENT, at al. ,

Respondents.
X X

JOSE JESUS M. DISINl, JR. , at al. ,

Petitioners,
- versus -

G. R. No. 203335

THE SECRETARY OF JUSTICE, at al. ,

Respondents.
X X

SENATOR TEOFISTO DL GUINGONA 111,

Petitioner,
- versus -

G. R. No. 203359

THE EXECUTIVE SECRETARY, at al. ,

Respondents.
X X

ALEXANDER ADONIS, at al. , Petitioners,

- versus -

G. R. No. 203378

THE EXECUTIVE SECRETARY, at al. , Respondents.

X X

HON. RAYMOND V. PALATINO, at al. ,

Petitioners,
- versus -

G. R. No. 20339, .

HON. PAQUITO N. OCHOA, JR. , at al. ,

Respondents.
X .-----------X

Bagong A1yansang Makabayan Secretary General

RENATO M. REYES, JR. , at al. ,
Petitioners,
- versus -

G. R. No. 203407

HIS EXCELLENCY BENIGNO SIMEON C. AQUINO

111, at al. , Respondents.
X .-.-------------X

MELENCIO S. STA. MARIA, at al. ,

Petitioners,
- versus -

G. R. No. 203440

HON. PAQUITO OCHOA, at al. , Respondents.

X .-X

NATIONAL UNION OF JOURNALISTS OF THE

PHILIPPINES, at al. , Petitioners,

- versus -

G. R. No. 203453

THE EXECUTIVE SECRETARY, at al. , Respondents.

X---....-----------------------x

PAUL CORNELIUS T. CASTILLO, at al. , Petitioners,

- versus -

G. R. No. 203454

THE HON. SECRETARY OF JUSTICE, et. al. ,

Respondents.
X ---X

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ANTHONY IAN M. CRUZ, at al. ,

Petitioners,
- versus -

G. R. No. 203469

HIS EXCELLENCY BENIGNO S. AQUINO, at al. ,

Respondents.
X --.... X

PHILIPPINE BARASSOCIATION, INC. ,

Petitioner,
- versus -

G. R. No. 203501. .

HIS EXCELLENCY BENIGNO S. AQUIN0 1/1, at al. ,

Respondents.
X X

Bayan Muna CoLMENAREs,

Representative

NERI J.

Petitioner,
- versus -

G. R. No. 203509

EXECUTIVE SECRETARY PAQUITO OCHOA, JR. ,

Respondent.
X X

NATIONAL PRESS CLUB OF THE PHILIPPINES,

INC. , at al. , Petitioner,
- versus -

G. R. No. 20351.5

OFFICE OF THE PRESIDENT, at al. , Respondents.

X X

PHIUPPINE INTERNET FREEDOM ALLIANCE, at al. ,

Petitioners,
- versus -

G. R. No. 2035/8

THE EXECUTIVE SECRETARY, at al. , Respondents.

X X

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MEMORANDUM

BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. RocAs; OLIVER RICHARD v. ROBiLLo; AARON ERICK A. LozADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;

Petitioners ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;

BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LIGERA JR. ; and
PINOY ExpATIOFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON

("Petitioners") in G. R. No. 203469, by counsel, and unto the Honorable Court,

presentation:

respectfully submit the instant Memorandum, on the basis of the following

PREFATORY

Respondents want it to be this simple: Trust us. Fear not. We will not do you

harm. Respondents would like us to rest well on their word - that they would do the
right thing.

With all due respect, it should not be that simple.

Good intentions will not, and should not, carry the day for the State. Trusting the implementation of a far-reaching law to nothing more than good intentions and veiled assurances betrays the fleeting nature of law enforcement. Respondents would like us to believe that they would do the right thing, that they will only employ the expansive and unprecedented law enforcement powers granted unto them by law with careful discretion, that law-abiding citizens should not fear, that only those with ill will have 00 safe haven - but they do not want to be circumscribed by the law
to have to do so.

That is unacceptable. We are, after all, subject to the Rule of Law, not the rule of men - however good-intentioned they are. Thus, when measured by the yardstick of our fundamental civil and political rights, it is readily and abundantly clear that Republic Act No. 101.75, otherwise known as the Cybercrime Prevention Act of 201.2 ("Cybercrime Prevention Act"), fails
to protect, preserve and defend our collective freedoms as a people, as enshrined and jealously guarded by our Constitution. We cannot rest well, if at all, when our

individual and collective democratic freedoms can be dishonored any moment by the implementation of a law that is unprecedented in the manner by which it seeks to curtail the rights of the very citizens that are the beneficiaries of freedoms fought for
and freedoms won.

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ponderous duty to rein in the Legislative and Executive Branches of Government to

Thus, in light of this grave context, conferred upon the Judiciary is the

their own allocated places under the Constitution. In the landmark case of Mathury
v. Madison, 5 U. S. 137 (1803), the United States Supreme Court enunciated the principle of judicial review, thus: "It is emphatically the province and duty of the
judicial department to say what the law is. " In the Philippines, the Honorable Court's power of judicial review is conferred on the Judicial Branch of Government as stated in Section I, Article Vlll of the

Constitution. Such power of judicial review was early on exhaustively expounded on

in Angora v. Electoral Commission, 63 Phil. 1.39 (1936), in which the Honorable Court discoursed that "when the judiciary mediates to allocate constitutional

boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. "
As the final arbiter of all legal controversies and the last bulwark of democracy in this jurisdiction, the Honorable Court is tasked with the most noble and awesome duty to up hold the Constitution and protect the liberties of citizens. As held in Bengzon v. Onion, 208 SCRA 133 (1992), "Itlhe Constitution is the basic and paramount law to which all other laws must conform and to which all person, including the highest official of the land, must defer. " It is, therefore the mandate of the Honorable Court, as the guardian of the Constitution, to see to it that "the officers

in each branch of government do not go beyond their constitutionalIy allocated boundaries and that the entire government itself or any of its branches does not
violate the basic liberties of the people. " Indeed, the Honorable Court is herein called upon to vindicate rights safeguarded by the fundamental law, particularly in this instance when both the Legislative and Executive Branches of Government intend to employ against citizens a crude tool to b!udgeon their most cherished and jealously guarded fundamental civil rights. Stated otherwise, petitioners plead that the Honorable Court will "make the hammer fall heavily" against acts that betray the people's will as expressed in the Constitution. ILuz Farms v. Secretary of the Department of Agrarian Reform, 1.92 SCRA 51 (1990); Association of Small Landowners of the Philippines, Inc. v. Secretary of Agrarian Reform, 1.75 SCRA 343 (1989)l

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NATURE OF THE PETITION

The instant Petition for Certiorori and Prohibition was filed by petitioners under Rule 65 of the Rules of Court to nullify and enjoin the implementation of the Cybercrime Prevention Law. Petitioners particularly assail the constitutionality and
legality of the following Assailed Provisions of the Cybercrime Prevention Act:
(1) SECTION 4(c)(4) separately criminalizing acts of libel, as defined under Article 355 of the Revised Penal Code, as amended, that are committed through a computer system or any other similar means that
may be devised in the future ("Cyber Libel");
(2)

SECTION 5 criminalizing acts that aid or abet the commission of any

offense punish able under the Cybercrime Prevention Act, as well as

the attempt to commit the same, including Section 4(c)(4) on Cyber

Libel; (3)

SECTION 6 imposing a higher penalty for the commission of any offense punish able under the Cybercrime Prevention Act, i. e. , one (1) degree higher than that provided under the Revised Penal Code, as
amended, and special laws;

(4)

SECTION 7 providing that a prosecution under the Cybercrime Prevention Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special
laws;

(5)

SECTION 1.2 authorizing any and all law enforcement authorities, with due cause, to collect andlor record by technical or electronic means traffic data in real-time without prior judicial warrant, sanction andlor
approval; and

(6)

SECTION 19 authorizing the Department of Justice ("DoJ") to restrict

andlor block access to computer data that are prima locie found to be
violative of the provisions of the Cybercrime Prevention Act.
(7)

The other provisions of the Cybercrime Prevention Act that flow from the above Assailed Provisions are likewise assailed by the instant Petition, including the provisions that authorize the disbursement of public funds for the implementation of the law.

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the following indisputable entitlements under the Bill of Rights:

.

ally in up holding their in alienable civil rights under the Constitution, most especiall
RIGHT To DUE PROCESS OF LAW RIGHT To EQUAL PROTECTION OF THE LAWS

In the face of the Assailed Provisions, the Honorable Court is petitioners' on I

"Section I. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied
the equal protection of the laws. "
.

RIGHTAGAINST UNREASONABLE SEARCHES AND SEIZURES

"Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches

and seizures of whatever nature and for any purpose shall be

inviolable, and 00 search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the judge

after examination under oath or affirmation of the complainant and the

witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. "
.

RIGHT To PRIVACY OF COMMUNICATION AND CORRESPONDENCE

"Section 3. (1) The privacy of communication and

correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed
by law.

(2) Any evidence obtained in violation of this or the preceding section shall be in admissible for any purpose in any proceeding. "
.

RIGHT To FREE SPEECH AND EXPRESSION

"Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of
grievances. "

RIGHT AGAINST DOUBLE JEOPARDY

"Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act. "

Now more than ever, therefore, with all due respect, the power of judicial review must not be abrogated or abandoned by the Honorable Court. Otherwise, the

other branches of Government will be able to operate as they very well please even
beyond their fences, to the detriment of citizens.

The sovereign citizens have entrusted to the Honorable Court the immense

power and authority of the judicial pen to hold sway the purse and the sword to their

own allocated places under the Constitution. Beyond dispute, judicial review is not
supremacy but duty. Verily, when the Honorable Court mediates to allocate

constitutional boundaries or invalidates the acts of co-equal bodies, it is up holding not its own supremacy but the supremacy of the Constitution, particularly when the most cherished and jealously guarded civil and political rights that are protected by
no less than the Constitution hang in the balance.
Similarly, Iudicial review is essential for the maintenance and enforcement of

the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control between them. " As it is, "mudicial review is the chief, indeed the only, medium of participation - or instrument of intervention - of the

judiciary in that balancing operation. " IFroneisco v. House of Representatives, 41.5

SCRA 44 (2003)l

The writs of certiorari and prohibition are, thus, invoked by petitioners on the ground that there is 00 other plain, speedy, and adequate remedy to them in the
ordinary course of law and procedure other than to institute the instant Petition to

nullify the Assailed Provisions. Petitioners, thus, avail of the instant Petition pursuant to Sections I and 2 of Rule 65 of the Revised Rules of Court. Through the writs of
certiorari and prohibition, it is humbly sought that judgment be rendered an nulling the Assailed Provisions and prohibiting their subsequent implementation andlor
enforcement in any manner whatsoever.
STATEMENT OF FACTUAL ANTECEDENTS

On 04 June 201.2, respondent House of Representatives passed the Cybercrime Prevention Act, which is a consolidation of Senate Bill No. 2796 and
House Bill No. 5808.

I.

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On 05 June 201.2, respondent Senate of the Philippines passed the Cybercrime Prevention Act, which is, as previously stated, a consolidation of Senate
Bill No. 2796 and House Bill No. 5808.
3.

2.

On 12 September 201.2, respondent Aquino signed the Cybercrime

Prevention Act into law as Republic Act No. 10/75.

4.

On 18 September 201.2, the Cybercrime Prevention Act was published

in two (2) newspapers of general circulation in the Philippines.

4.1. Section 31 of the Cybercrime Prevention Act provides

that said law "shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers
of general circulation. "

4.2. Considerlng that the Cybercrime Prevention Act was published in two (2) newspapers of general circulation in the Philippines on 18 September 201.2, the same took effect on 03
October 2012.

5. On 04 October 201.2, petitioners filed the instant Petition before the

Honorable Court within the reglementary period provided under Section 4 of Rule 65 of the Rules of Court. Thus, the instant Petition is timely and seasonably filed. 6. On 09 October 201.2, he Honorable Court issued a Temporary Restraining Order ("TRO") against the enforcement of the Cybercrime Prevention Act, effective for one hundred twenty (120) days, or until 06 February 201.3. In the
same Order, the Honorable Court likewise set the instant consolidated cases for Oral

Arguments on 15 January 201.3.

7. On 03 December 201.2, respondent filed their Consolidated Comment with Partial Moniestofun dated 03 December 201.2 ("Consolidated Comment"). 8. On 04 January 201.3, the Honorable Court, through the Member In
Charge of the instant consolidated cases, Justice Roberto A. Abad, called the parties' counsel to discuss the procedures for the Oral Arguments, including the limitation of the issues to be tackled thereon, which were embodied in the Honorable Court's Advisory dated 09 January 201.3.

of all petitioners before the Honorable Court.

9. On 15 January 201.3, designated speakers argued the case on behalf

1.0. On 29 January 201.3, the Solicitor General argued the case for all respondents before the Honorable Court. It should be noted, however, that 00

official, agent or representative of the State defended Section 19 of the Cybercrime

Prevention Act.

1.1. In open session, and as confirmed by the Honorable Court's

Resolution dated 29 January 2013, petitioners were required to file their respective
Memoranda.

1.2. Subsequently, in a Resolution dated 05 February 201.3, the Honorable

Court extended indefinitely the TRO it previously issued against the enforcement of
the Cybercrime Prevention Act. 13. Thus, in compliance with the directive of the Honorable Court,

petitioners respectfully file the instant Memorandum incorporating their Reply to

respondents' Consolidated Comment in compliance with the Resolution dated 1.1 December 201.2 issued by the Honorable Court.
ISSUES

WHETHER PETITIONERS HAVE LEGAL STANDING To INSTITUTE AND MAINTAIN THE INSTANT PEnnON.

11 WHETHER SECTION 12 OF THE CYBERCRIME PREVENTION ACT Is PATENTLY UNcoNSTiTUTioNAL CONSIDERING THAT IT VIOLATES AN INDIVIDUAL'S RIGHT To PRIVACY AND THE PRIVACY OF COMMUNICATION AND CORRESPONDENCE

UNDER SECTION 3, ARTICLE in OF THE CONSTITUTION.

1/1

WHETHER SECTION 12 OF THE CYBERCRIME PREVENTION ACT Is PATENTLY UNcoNSTiTUTioNAL CONSIDERING THAT IT VIOLATES AN INDIVIDUAL'S RIGHT To UNREASONABLE

SEARCHES AND SEIZURES UNDER SECTION 2, ARTICLE in OF

THE CONSTITUTION.

1.0

IV

WHETHER SECTION 19 OF THE CYBERCRIME PREVENTION ACT

Is NULL AND VOID FOR BEING UNcoNSTiTUTioNAL CONSIDERING THAT IT Is VIOLATivE OF THE DUE PROCESS

CLAUSE UNDER SECTION I, ARTICLE in OF THE

CONSTITUTION.

WHETHER SECTION 19 OF THE CYBERCRIME PREVENTION ACT Is NULL AND VOID FOR BEING UNCONSTiTUTiONAL

CONSIDERING THAT IT Is VIOLATivE OF THE RIGHT OF

CITIZENS AGAINST UNREASONABLE SEARCHES AND

SEIZURES UNDER SECTION 2, ARTICLE in OF THE

CONSTITUTION.

Vl

WHETHER SECTION ^9 OF THE CYBERCRIME PREVENTION ACT Is NULL AND VOID FOR BEING UNcoNSTiTUTioNAL CONSIDERING THAT IT Is VIOLATivE OF THE RIGHT OF THE

PEOPLE To FREEDOM OF SPEECH UNDER SECTION 4, ARTICLE

1/1 OF THE CONSTITUTION.

Vll

WHETHER SECTIONS 4(C)(4), 5,6, AND 7 OF THE CYBERCRIME

PREVENTION ACT ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL CONSIDERING THAT THEY ARE

VIOLATIVE OF THE DUE PROCESS CLAUSE UNDER SECTION I,

ARTICLE in OF THE CONSTITUTION AND OF THE FREE SPEECH

CLAUSE UNDER SECTION 4, ARTICLE in OF THE

CONSTITUTION.

Vlll WHETHER SECTION 6 OF THE CYBERCRIME PREVENTION ACT Is NULL AND VOID FOR BEING UNcoNSTiTUTioNAL

CONSIDERING THAT IT Is VIOLATivE OF THE EQUAL

PROTECTION CLAUSE UNDER SECTION I, ARTICLE in OF THE

CONSTITUTION.

1.1

AR^

I.

Petitioners Have Legal Standing To Institute

And Maintain The Instant Petition.

In Pimentel v. Office of the Executive Secretary, at at. , 462 SCRA 622

(2005), the Honorable Court discussed the issue of legal standing as follows:
"The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced
and a direct interest in the duty or act to be performed. tLegaspi v. Civil Service Commission, 1.50 SCRA 530 (1987)l The Court will exercise

its power of judicial review only if the case is brought before it by a

party who has the legal standing to raise the constitutional or legal question. 'Legal standing' means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term 'interest' is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. tJoy, I v. Presidential
Commission on Good Government, 225 SCRA 568 (1993)l

xxx

The question in standing is whether a party has alleged such a

personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination of difficult

constitutional questions. IGOnzales v. Nan/nan, 337 SCRA 733 (2000)l"

Petitioners respectfully submit that they have legal standing to institute and maintain the instant Petition considering that the matter at bar involves an issue of utmost and far-reaching constitutional importance, i. e. , the constitutionality of the Assailed Provisions of the Cybercrime Prevention Act, which are in direct contravention with the most cherished and jealously guarded fundamental civil rights the enshrined in the Constitution. IKilosbayan Foundation, at o1. v. Executive Secretary, at at. , 526 SCRA 353 (2007)l Thus, the instant Petition is filed to ensure that the questioned official acts of the Legislative and Executive Branches of the Government are within the limits allowed by the Constitution.

1.2

In any event, the Honorable Court has highlighted its liberal stance with
respect to a petitioner's locus standi where said petitioner raises an issue of

transcendental significance and importance to the people, as in the case of the

instant Petition considering the broad effect of the Assailed Provisions on the most

cherished and jealously guarded fundamental civil rights under the Constitution that are intrinsic and in alienable. 100vid v. Arroyo, 489 SCRA 1.60 (2006); Tomd v. Secretary of Energy, 281 SCRA 330 (1997); GUM" v. Executive Secretary, 21.1 SCRA 219 (1992); OSmeiici v. Commission on Elections, 199 SCRA (1991); Boseo v. Philippine Amusements und Gaining Corporation, 1.97 SCRA 52

(1991); Dam v. Singson, 180 SCRA 496 (1989), Armeta v. Dingl"sun, 84 Phil.
368 (1949)l

As will further be discussed, the determination of the constitutionality of the

Assailed Provisions, which involves the curtailment of the most cherished and

jealously guarded fundamental civil and political rights under the Constitution, is no doubt an issue of transcendental significance and importance presented by an actual
controversy.

A justiciable controversy has been defined as one "where there is an actual

controversy, or the ripening seeds of one exists between the parties, all of whom are

suijuris and before the court, and that the declaration sought will help in ending the
controversy. A doubt becomes a justiciable controversy when it is translated into a

claim of right which is actually contested. " lintemutional Hardwood and Veneer
Company of the Philippines v. University of the Philippines and Jose C. Campos, Jr. , 200 SCRA 554 (1991)l A case is ripe for adjudication when something

had by then been accomplished or performed by either branch. ITUn v. Moonpogal,

43 SCRA 677 (1972)I In this case, a review of the entirety of the Cybercrime Prevention Act would reveal that there is in fact already an actual case that requires the Honorable Court to exercise its power of judicial review. In view of the peculiar character of the Cybercrime Prevention Act and its Assailed Provisions, the actual passage and effectivity of the law constitutes the actual case or controversy at hand
considering that the law itself constitutes a eneral warrant to all citizens that

the far-reaching and expansive powers of the State under the law will bear upon conduct and speech deemed unacceptable by unclear and unchecked
standards.

In particular, since the Cybercrime Prevention Act authorizes the DoJ to determine a prima focie violation of the law, virtually every piece of data uploaded in cyberspace is subject to search and, not unlikely, seizure by law enforcement authorities. Every piece of data and information in the digital world - an evergrowing ocean - is now effective Iy the subject of a general warrant without^ny
determination of robable cause, in violation of Section 2, Article in of the Constitution and Section 4, Rule 1.26 of the Rules of Court, as well as ruling
1.3

case law. 1stonehill vs. Diokn0, 20 SCRA 383 (1967); Vowelo vs. Court o1
Appeals, 427 SCRA 658 (2004); People of the Philippines vs. Tuan, 628 SCRA
226 (2010)I Accordingly, where a violation of the Constitution has occurred, as in this

case due to the peculiar nature if the Assailed Provisions, the issue is a justiciable controversy. The question, therefore, of whether there has been compliance with or violation of the most cherished and jealously guarded fundamental civil rights under the Constitution is for the Honorable Court to pass upon. tDisomongcop v.
Datumonong, 444 SCRA 203 (2004), citing mindci v. Angora, 272 SCRA 18 (1997)I In view of the constitutional and legal infirmity of the Assailed Provisions, petitioners hereby invoke the Honorable Court's power of judicial review and comes now before the Honorable Court with an earnest plea to correct a grave and serious

injustice and transgression of the Constitution that impinge upon petitioners' most
cherished and jealously guarded fundamental civil rights, which include, as previously mentioned, Sections I, 2,3,4, and 21, Article 1/1 of the Constitution. As it stands, the Cybercrime Prevention Act is a quantum leap backwards that destroys the very fabric of the free eXchange of ideas that has allowed democracy to thrive in this country. Moreover, the Cybercrime Prevention Act is contrary to the commitment to transparency that the present dispensation has supposedly
championed. Moreover, Cybercrime Prevention Act is a direct assault to the time-

honored principle of each citizen's right to privacy, which is the in alienable right of an individual to be let alone. This much was enunciated by Justice Louis Brandeis of the United States Supreme Court in his dissent in 01mste"d v. United States, 277 U. S.
438 (1928), viz. :

"The right to be let alone - the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation
of the Fourth Amendment. "

The Honorable Court has likewise accorded due deference to the right to be

let alone. In City o1 Manila v. Lagui0 455 SCRA 308 (2005), the Honorable Court held that the right to be let alone is the beginning of all freedom - it is the most

comprehensive of rights and the right most valued by civilized men. By its very nature and purpose, the concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect.

1.4

The right to be let alone is a fundamental right that extends to the information

platforms and media offered by technology. A simple post or shout-out through a Twitter account or Facebook page may, to some, be undeserving of legal protection.
However, such seemingly simple and mundane acts of sharing opinions and
perspectives on various subject matters may well be considered as the natural consequence of the evolving concept of the right to privacy, the right to be let alone. More so, it should be underscored that a person does not waive, shed or otherwise give up his right to privacy simply because he or she used a different medium of
communication, such as the internet.

It is unfortunate, even alarming, to note that although the Legislature had all the opportunity to craft a law that is, and should be, responsive to the evolving times,

it instead produced a Panopticon that will not hesitate to strike down any and all
online acts and utterances that are deemed undesirable and unacceptable according
to the fleeting and subjective standards of law enforcement authorities, without the

benefit of any judicial oversight or sanction. Given these grave circumstances, the President had the corresponding opportunity, even the duty, to veto the allembracing law on behalf of millions of freedom-loving citizens yet he did not see it fit to protect, preserve and advance the rights of his constituents in the face of a mammoth legislation. As a result, a regime of round-the-clock surveillance - a constant axe hanging overhead, ready to strike - effective Iy chills and silences legitimate action, thought, free discussion, and dissent. Indeed, as consistently held by the Honorable Court, in the realm of the political life of a nation, debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. IAdiong v. Commission on Elections, 207 SCRA 71.2 (1992); New York Times Co. v. Sumvan, 376 U. S. 254 (1964/1 When, as in this case, the Legislative and Executive Branches of Government act in complete defiance of the clear letter and spirit of the Constitution, it is the sacred duty of the Honorable Court to up hold the fundamental law and,
consequently, strike down the Assailed Provisions in order to am rin the most

cherished and jealously guarded fundamental rights of citizens under the aegis of a democracy that was painfulIy fought for by great forebears who stand to be dishonored and disgraced by the implementation of legislation that is unprecedented in the manner by which it seeks to curtail the rights of the very citizens that are the
beneficiaries of freedom fought and won - until now. Otherwise, fear would be abundant as fundamental freedoms fall by the

wayside.

1.5

Significantly, the Honorable Court's judicial power, as anchored on Section I, Article Vlll of the Constitution, includes the duty to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch of the Government, particularly with respect to the passage of the
Cybercrime Prevention Act and its Assailed Provisions:

"Section I. xxx Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or

riot there has been a grave abuse of discretion amounting to lack

or excess of jurisdiction on the part of any branch or

instrumentality of the government. " IEmphasis suppliedI

In the instant case, the requisites for the Honorable Court's exercise of its

power of judicial review are present, namely: (1) there is actual case or controversy calling for the exercise of judicial power; (2) petitioners have legal standing and personal and substantial interests to challenge the Assailed Provisions considering that petitioners will sustain direct injury as a result of the implementation andlor enforcement thereof; (3) the question of constitutionality is raised at the earliest possible opportunity; and (4) the issue of constitutionality is the very lis inoto of the
instant Petition. IFrancisco v. House of Representatives, 41.5 SCRA 44 (2003)l In this regard, petitioners hereby respectfully submit and contend that the Assailed Provisions violate the clear letter and spirit of the Constitution. Moreover, what is assailed by the instant Petition is not merely the Assailed Provisions themselves but also the grave abuse of discretion on the part of the Legislative and Executive Branches of Government in enacting the Cybercrime Prevention Act, including the Assailed Provisions thereof, in spite of patent constitutional and legal infirmities. Therefore, with all due respect, the Honorable Court must rule on the constitutional issue as it is unavoidably necessary to the decision of the instant
Petition. ISOtto v. Commission on Elections, 76 Phil. 51.6 (1946); Luz Forms v.

Secretary of Agrarian Reform, 192 SCRA 51 (1990)I

11.

Section 12 Of The Cybercrime Prevention Act Is Patently Uriconstitutional Considering That It Violates An Individual's Right To Privacy And The Privacy Of Communication And Correspondence Under Section 3, Article in Of
The Constitution.

The Honorable Court in People v. Tudtud, 41.2 SCRA 142 (2003), held that the Bill of Rights as the bedrock of constitutional government such that if the people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This is why the Bill of Rights occupies a position of primacy in the fundamental law way above the articles on State power.
1.6

,
.

of Rights - the citizens' scroll of entitlements - to strike down the Assailed Provisions

With all due respect, this is precisely why petitioners invoke the very same Bill

of the Cybercrime Prevention Act, as well as all other provisions that flow therefrom.
At the heart of the Cybercrime Prevention Act looms a great threat to citizens'

fundamental rights. Section 12 thereof grants and bestows upon law enforcement authorities unbridled authority to collect andlor record data with respect to a communication's origin, destination, route, time, date, size, duration or type of underlying service in real time without prior judicial warrant:
"Section 1.2. Real-Time Collection of Traffic Data. - Law
enforcement authorities, un^e^e, 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.

Traffic data refer only to the communication's origin, destination, route, time, date, size, duration, or type of underlying
service, but riot content, nor identities. 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 abovestated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that
any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is

essential to the conviction of any person for, or to the solution of, or to

the prevention of, any such crimes; and (3) that there are 00 other

means readily available for obtaining such evidence. " tEmphasis and
underscoring suppliedl

Section 1.2, for all intents and purposes, search and seizure before a determination of probable cause occurs, violating Sections 2 and 3, Article 111 of the Constitution, which protect citizens' most cherished and jealously guarded fundamental civil and political rights, thus:
1.7

,
*

"Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and 00 search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the judge

after examination under oath or affirmation of the complainant and the

witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Section 3. (1) The privacy of communication and

correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be in admissible for any purpose in any proceeding. " With all due respect, petitioners submit that Section 12 of the Cybercrime Prevention Act is a blatant violation of an individual's right to privacy and of the

privacy of communication and correspondence, as guaranteed by the Constitution. In

fact, even respondents in their Oral Arguments before the Honorable Court on 29 January 201.3 admitted that Section 12 of the Cybercrime Prevention Act impacts on

the constitutional right to privacy. '

The existence of constitutionalIy and statutorily protected zones of privacy has been consistently recognized by the Honorable Court. In Ople v. Torres, 293 SCRA 141 (1998), the Honorable Court explained thus: "Assuming, arguendo, that A. 0. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facial Iy it violates the right to privacy. The essence of privacy is the 'right to be let alone. ' In the
1,965 case of Griswold v. Connecticut, the United States Supreme

Court gave more substance to the right of privacy when it ruled that
the ri ht has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments, xxx

I.

Page 18, Transcript of Stenographic Notes (n"SN") of the Oral Arguments, 29 January 2013.

1.8

t
,

In the 1968 case of Morfe v. Mutuc, we adopted the Griswold

ruling that there is a constitutional right to privacy. Speaking thru

Mr. Justice, later Chief Justice, Enrique Fernando, we held:
XX)(

The Griswold case invalidated a Connecticut

statute which made the use of contraceptives a criminal

offense on the ground of its amounting to an uriconstitutional invasion of the right of privacy of married persons; rightful Iy it stressed 'a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees. ' It has wider

implications though. The constitutional right to privacy

has come into its own.

So it is likewise in our jurisdiction. Tl^o

.

rivac

as

such

Is

accorded

reco nition

i to endentl of its identification with libert ; in itself it is full deservin of constitutional

prot^tmn. The language of Prof. Einerson is particularly apt: 'The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions

between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a
s stern of limited overriment safe uards a rivate

sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state
can control. Protection of his rivale sector rotection in other words of t e di It and

inte rit of t e individual - has beeo e incre s'n I

jin onant a modern SOCjet has develo ed. All the forces of a technolo ical a e - industrialization urbanizatio and or anization - o erate to narrow the area of rivac and f cilitate intrusion into it. In

modern terms, the capacity to maintain and support this enclave of private life marks the difference between a

democratic and a totalitarian society. ' Indeed, if we extend our judicial gaze we will find that the
right of privacy is recognized and enshrined in several provisions
of our Constitution. It is ex ressl reco nized in Section 3 I of the

Bill of Rights :
1.9

,
,

'Sec. 3.

(1) The privacy of communication

and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. ' Other facets of the right to privacy are protected in various
provisions of the Bill of Rights, viz: 'Sec. I. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in

their persons, houses, papers, and effects against

unreasonable searches and seizures of whatever nature

and for any purpose shall be inviolable, and 00 search

warrant or warrant of arrest shall issue except upon

probable cause to be determined personally by the

judge after examination under oath or affirmation of the

complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
XXX

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall riot be impaired except upon lawful order of the court. Neither

shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.
xxx

Sec. 8. The right of the people, including those

employed in the public and private sectors, to form unions, associations, or societies for purposes not

contrary to law shall not be abridged.

20

Sec. 1.7. No person shall be compelled to be a

witness against himself. "' tEmphasis and underscoring

suppliedI

In Polio v. Constantno-Dovid, 659 SCRA 189 (2011), the Honorable Court

held that Section 3, Article 111 of the Constitution is the embodiment of the protection of privacy of communications and correspondence, which is a fundamental personal
right protected by the fundamental law:

"In its 1,964 ruling in Griswold v. Connecticut, the U. S. Supreme

Court declared that the ri ht to rivac was a fundamental ersonal

righi;
XXX

Morfe v. Mutuc emphasized the significance of privacy by

declarin that ' t he ri ht to be let alone is indeed the be innin of

all freedom. ' The description hewed very closely to that earlier made

by Justice Brandeis in 01smead v. United States that the right^be

let alone was the most 'coin rehensive of ri hts and the ri hts
most valued b

civilized men. "' IEmphasis and underscoring

suppliedl Section 12 of the Cybercrime Prevention Act enables law enforcement

officers to probe through a sphere of citizens' privacy - personal expressions, opinions, communications and correspondences without prioriudicialwarrant. With all due respect, it is respectfully submitted that Section 12 is patently uriconstitutional as it violates a citizen's right to privacy and of privacy of communication and correspondence.
A. An Individual Has A Reasonable

Expectation Of Privacy Of Personal

Electronic Data, Communications And Correspondence.
The Honorable Court had another occasion to discuss issues related to the

right to privacy in Miguel v. Gordon, 504 SCRA 704 (2006), wherein is was held

that in evaluating a claim for violation of privacy, it must be determined whether a person has a reasonable expectation of privacy, and whether State intrusion has violated such exception:

21

*
~

"Zones of

rivac

are reco nized and

rotected in our

laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a 'constitutional right' and 'the
right most valued by civilized men, ' but also from our adherence to the Universal Declaration of Human Rights which mandates that, 'no one shall be subjected to arbitrary interference with his privacy' and 'everyone has the right to the protection of the law against such
interference or attacks. '

Bill of R' hts e shrined in Article in of the Constitution rovides at least two uarantees that ex lieitl create zones of rivac It hi in hts a erson's 'ri ht to be let alone' or the 'ri ht to determine what how much to whom and when information about himself shall be disclosed. ' Section 2
.

Ou

guarantees 'the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. ' Section 3 renders inviolable the 'privacy of communication and correspondence' and further cautions that 'any evidence obtained in violation of this or the preceding section shall be in admissible for any purpose in any proceeding. ' In evaluating a claim for violation of the right to privacy, a court
ust determine whether a erson has exhibited a reasonable ex ectation of rivac and if so whether that ex ectation has

been violated b unreasonable overninent intrusion. " Em hasis

and underscoring suppliedl It is respectfully submitted that citizens have a reasonable expectation of

privacy to Traffic Data, which Section 12 of the Cybercrime Prevention Act permits law enforcement authorities, using the incomprehensible standard of due cause, to
collect or record in real-time. It is likewise submitted that Section 1.2, being an

unreasonable State intrusion, violates this constitutional expectation. In POWo v. Constantino-DC1vid, sunro, the Honorable Court, adopted the
ruling of the United States Supreme Court in Kotz v. United States, 389 U. S. 437

(1967), wherein it was held that the use of a telephone in an enclosed booth
constitutes a reasonable expectation of privacy: "In the 1,967 case of Katz v. United States, the Us Supreme

Court held that the act of FBI agents in electronically recording a

conversation made by petitioner in an enclosed public telephone booth

22

,
~

violated his right to privacy and constituted a "search and seizure".

Because the etitioner had a reasonable ex ectatio of rivac In UsIn the enclosed booth to make a ersonal tele hone call the rotection of the Fourth Amendment extends to such area. In the

concurring opinion of Mr. Justice Harlan, it was further noted that the

existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective)
expectation of privacy; and second, that the expectation be one that

society is prepared to recognize as reasonable (objective)." In United States v. Andrus, 483 F. 3d 711 (10th Cir. 2007), the United States Court of Appeals for the Tenth Circuit held that computers contain a repository of private information over which owners have a reasonable expectation of privacy:
"Courts considering the issue have attempted to analogize computers to other items more commonly seen in Fourth Amendment
jurisprudence. Individuals' ex ectations of rivac in coin uters
have been likened to their e
ectations of
.

rivac

in 'a suitcase

or briefcase. ' United States v. Aaron, 33 Fed. Appx. 1.80, 1.84 (6th Cir. 2006) (unpublished). Password-protected files have been
compared to a 'locked footlocker inside the bedroom. ' Trulock v.

Freeh, 275 F. 3d 391,403 (4th Cir. 2001).

Given the pervasiveness of computers in American homes, this court must reach some, at least tentative, conclusion about the category into which personal computers fall. A personal computer is

often a repository for private information the computer's owner does

not intend to share with others.

IFlor most people, their computers are their

most private spaces. People commonly talk about

the bedroom as a very private space, yet when they

have parties, all the guests - including perlect strangers - are invited to toss their coats on the

bed. But if one of those guests is caught exploring the host's computer, that will be his last invitation. United States v. Gourde, 440 F. 3d 1065, 1077 (9th Cir. 2006) (en banc) (Kleinfeld, J. , dissenting). See generally Onn S. Kerr,
Searches and Seizures in a Digital World, 11.9 Harv. L. Rev. 531,569

(2005) ('tCIOmputers are playing an ever greater role in daily life

and are recording a growing proportion of it. . . . [T]hey are postal

services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries,
23

,
~

and more. . . . Each new software application means another aspect of our lives monitored and recorded by our computers. '). Because
intimate i formalo is commonl stored on coin uters it seems
natural that coin uters should fall into the same Gate o
as a

suitcases footlockers or other ersonal items that 'command and underscoring suppliedl

hi h to ree of rivac .' Salinas-Can0,959 F. 2d at 864. " IEmphasis

Further, in Katz v. United States, sunro, the United States Supreme Court held that a person has a reasonable expectation of privacy over private communications except what a person It^ exposes to the public:
"For the Fourth Amendment protects people, not places. What
a person knowingIy exposes to the public, even in his own home

or office, is riot a subject of Fourth Amendment protection. See

Lewis v. United States, 385 U. S. 206,210; United States v. Lee, 274
U. S. 559, 563. But what he seeks to an area accessible to the ublic
reserve as

in a

rivate even in be constitutional I

pratee^. See Rios v. United States, 364 U. S. 253; Ex pane

Jackson, 96 U. S. 727,733. "

The Cybercrime Prevention Act allows law enforcement authorities to monitor

andlor record traffic data associated with specified communications transmitted by

means of a computer system. Traffic Data is defined under Section 12 of the Cybercrime Prevention Act as supposedly limiting itself to non-content information: . "Traffic data refer only to the communication's origin, destination, route, time, date, size, duration, or type of underlying
service, but not content, nor identities. "

Notably, Section 3(p) of the Cybercrime Prevention Act categorical Iy defines Traffic Data as non-content data, yet it does riot limit the same to the enumeration
contained therein:

"(p) Traffic data or nori-content data refers to any computer

data other than the content of the communication includin but riot

limit^, the communication's origin, destination, route, time, date, size, duration, or type of underlying service. "
The dichotomy of the foregoing provisions notwithstanding, Section 1.2 of the Cybercrime Prevention Act violates the constitutional right to privacy and of privacy

of communication and correspondence. To reiterate, an individual loses his right to

rivac over electronic data on I when one intends the same to be made ublic.

24

digital world or in cyberspace, it is necessary to understand the extent of an

individual's online footprint, thus:

In this respect, central to the understanding of an individual's exposure in the

"It is without a doubt that the advent of information technology

and, in particular, the Internet has had an impact on the private life of citizens in developed (and increasingly in developing) countries not seen since the industrial revolution. The "digitalisation" of everyday tasks such as reading the newspaper, listening to music and even

shopping for groceries has changed the face of public life to a point
where many people now find it difficult to imagine a day without access
to a computer. No more is this the case than in the area of

communication. Where previous generations managed to sustain personal and business relationships by way of postal letters, today even the smallest disturbance in the telecommunications system has the potential to bring businesses, from high street retailers to blue chip
companies, to their knees. In our working practices we have become
entirely reliant on e-mail and the WorldwideWeb.

What is less appreciated by many using the new technologies is just how much information about oneself, one's habits and one's personal lives one leaves behind during that online shopping spree, when texting friends or sending a quick email. These footprints of people going about their daily business are known in the IT and communications industry as "communications data". They include a variety of information generated in the context of making telephone calls, sending and
receiving e-mails and accessing the Internet. In the case of e-mail, the data may include the time the email was sent, the addressee and the size of the file. In the case

of a telephone call they may include the number called, the number from which the call was made, and the length of the call.
An ISP providing access to the Internet will keep a log of the time access was initiated and terminated and, in the case of access to the WorldwideWeb, the URLs of websites visited and the order in which they were accessed. Collectively, such data are known as

"traffic data". Communications data also include personal information relating to the identity of the person making the phone Gall or accessing the Internet such as name, billing address, etc. , commonly known as "subscriber data". Finally,
where calls are made using a mobile phone call, the mobile phone provider will also be able to establish the location of the

caller at the time of the call ("location data").

25

It is widely held, that "as the technology and business models evolve, communications data will provide a very rich and

colourful picture of an individual's interactions, associations,

activities, thereabouts, and interests". This applies, in particular, to
traffic data. As Caspar Bowden, then Director of the Foundation for

Information Policy Research (F1PR) explains: 'Traffic data constitutes a near complete map of private life: whom everyone talks to (by e-mail and phone), where everyone goes (mobile phone location co-ordinates), and what everyone reads

online (websites browsed)."' tEmphasis suppliedI

It should be underscored that Traffic Data, when in the hands of a party that
may connect such Traffic Data to other confidential data about an individual, results

in unimaginable repercussions to an individual's right to privacy: "Digital traffic data in the hands of the average person may not be personally identifiable, but could take on a very different significance in the possession of someone able to link a pseudonym either an IP address or some other unique identifier - with a particular individual, either by technical or legal means. Under such circumstances, otherwise non-personally-identifiable data could easily reveal intimate details of an individual's personal lifestyle or private decisions and therefore would be deserving of ^ 8 protection. This
point relates both to the values represented by the data and the relationship of the subject of the data to the third party who is in possession or control of it both aspects will be explored in more detail later in the paper. " In this light, by way of an example, Traffic Data is akin to the data we see in phone bills. Telecommunications service providers andlor companies have access to and record the numbers a certain phone line connects to, the duration of the

communication, the date and time of the call made and the frequency of the
connection. However, despite these data being available to service providers, subscribers have a reasonable expectation of privacy to these data. Subscribers expect service providers to keep said data as confidential and service providers have
a contractual obligation to do so.
2

Judith Rauhofer, "Just because you're paranoid, doesn't mean they're riot after you: Legislative developments in relation to the mandatory retention of communications data in the European Union", (2006) 3:4 SCRIPTed 322 <hip:nunw. law. ed. an. uldahrclscript-edlv013-41nuhofer. asp> at 323-33. Jason Young, "Surfing While Muslim: Privacy, Freedom Of Expression 8 The Unintended Consequences Of Cybercrime

Legislation", International Journal of Communication Law and Privacy, Issue 9, Special Issue on Cybercrime at page 15
myinter 2004/2005).

26

,
\

and

Considering that Traffic Data constitutes "a near complete map of private life",

considering further that a majority of the users of electronic media and the Internet are probably unaware that their messages or transactions contain Traffic

Data and are similarly unaware of the extent of their online presence, and are, thus,
ignorant of the privacy repercussions of their Traffic Data, it cannot be stated that

disclosure to ISP's constitutes a waiver of the reasonable expectation of privacy:

"Thus it would seem that as much as our own ignorance

about what actually takes place behind the screen encourages us

to make false assumptions about our online privacy, so too does

the trust we place in our service providers. Every day, across cyberspace, people engage in very private behaviour on the public
Internet. They engage in virtual sex, submit income tax returns,

research health ailments, pay bills, collaborate with co-workers, make

purchases, plan vacations, enter contests and so forth. Much of this

activity is done in the clear and all of this information is submitted, one
way or the other, through providers. Does the mere fact that

individuals engage in these kinds of activities mean that they 00 longer hold reasonable expectations of privacy in the information disclosed to third parties? Does it imply some kind of trust relationship between subscriber and the recipient of the information? Does it suggest a
certain level of ignorance on the part of the subscriber as to exactly

what happens when they click 'Send?"' IEmphasis suppliedI

As such, law enforcement officials cannot just demand for this kind of

information from service providers without any prioriudicial intervention in the form of a search warrant. Precisely because said Traffic Data are private information not intended for public consumption. Even respondents in their Oral Arguments admitted that Traffic Data is private data and is confidential and covered by a
citizen's right to privacy:
UusTiCE CARPiO:

Okay. So, you don't consider as confidential how many times you call a certain person, how long you talk to a certain person, for you it's not private, it's not covered by privacy.
SOLICITOR GENERAL JARDELEZA:

It is confidential, Your Honor. It is covered by my privacy, but you allow the State where there is a law enforcement reason, that is why due cause. But then ..... linterruptedj

Young, sunro, at pages 31-33.

27

. \

JUSTICE CARPIO:

I never allowed the State ..... If I have a right to privacy, I want to keep
it. But the law says: 'No, you cannot keep It. ' That's why we are here
today. We have to determine whether there is a reasonable

intrusion into your right of privacy. You agree that these are
private data, correct?
SOLICITOR GENERALJARDELEZA:

Yes, Your Honor, but my response, Your Honor, is if we follow that line of reasoning, the case of the hacker, Your Honor .....
JUSTICE CARPIO:

Yes, but you can always go to the judge to get a search warrant. The judge is always there. If you want, we can designate a judge
24 hours a day. You can go to his house.
SOLICITOR GENERAL JARDELEZA:

I agree with you, Your Honor. I would wish that the Congress had

legislated appearance before a judge. But I'm saying, as it is, that's

why in our argue ..... in our Memo ..... we say it is constitutional but our

view, and we say this with utmost respect to the Congress, personally,
Your Honor, my rights will be better protected if there is judicial intervention. We have said that in the Memo, Your Honor.
JUSTICE CARPIO:

Okay. So, let's put it in perspective now. You said that you agreed with me that this traffic data is private data, your own, it is
covered by privacy, correct?
SOLICITOR GENERAL JARDELEZA:

Yes, Your Honor. "' IEmphasis suppliedl

This is precisely why, as correctly stated by Senior Associate Justice Antonio T. Carpio, when phone bills are delivered to subscribers, said bills are placed in sealed envelopes, the contents of which are intended only for the recipient's private

consumption and discretion. ' Thus, said data are intended to be private despite the
fact that it was generated by the service provider. Therefore, in reference to the inside-outside data dynamics referred to by the respondents, law enforcement
authorities are not empowered to demand from, for instance, the postal office,
5 B

Pages 50-52, TSN of the Oral Arguments, 29 January 2013. Page 53, TSN of the Oral Arguments, 29 January 201.3.

28

, .

information as to where certain mails are intended to be delivered, when the mail
search warrant is necessary to obtain them.

shall reach the intended recipient, the quantity of mails delivered by or to a certain person, and the like. These data are also reasonably expected to be private and a

What then is the difference of Traffic Data from other data to afford law

enforcement officers an unbridled access to such? Petitioners respectfully submit

that there is none. As quoted above, even respondents in their Oral Arguments manifested their agreement that Traffic Data is private data. Accordingly, Traffic
Data, as defined in the Cybercrime Prevention Act, is within the scope of citizens' reasonable expectancy of privacy and should be protected from unreasonable
government intrusion.

Likewise, in Guest v. Lets, 225 F. 3d 325,333 (6th Cir. 2001), the United States Court of Appeals for the Sixth Circuit held that information voluntarily
conveyed to a systems operator is outside the scope of the reasonable expectation
of privacy: "Courts have applied this principle to computer searches and

seizures to conclude that computer users do not have a legitimate expectation of privacy in their subscriber information because they
have conveyed it to another person~the system operator. See Maxwell,

45 M. J. at 41.8; United States v. Kerinedy, 81 F. Supp. 2d 11.03, 11.10 (D. Kan. 2000) (rejecting a privacy interest in subscriber information
communicated to an internet service provider)" Clearly, from the foregoing, an individual loses his reasonable expectation of privacy only when there is a voluntary act of disclosing the same. In the case at hand, even in the event that 00 such voluntary act exists, law enforcement authorities are granted unbridled discretion to monitor and record traffic data despite the lack of relinquishment of an individual's reasonable expectation of privacy over the same. An individual's traffic data is vastly different from subscriber data, or even email addresses, which an individual voluntarily discloses in the course of utilizing electronic media. Most individuals reasonably expect that their electronic transactions or communications sent from the sanctity of their own homes and personal electronic communication devices (over which there is a recognized reasonable expectation of privacy) shall remain private and inviolable.

29

I
.

Today, technology has provided ordinary citizens, as well as bloggers and netizens, the opportunity to do the most private of acts through electronic devices their homes and abodes outside the probing eyes of the public can now be done in

and the Internet. In fact, most of the things individuals usually do in the privacy of

ind'v'd I reasonablyd h their online' " are kept individuals could and should Id expect that I ' activities private and outside intrusion by the State. In fact in Kotz v. United States, sunro, the United States Supreme Court stressed that a protection of a person's right to be
left alone is akin to the protection of not only one's home but of one's life: "Other provisions of the Constitution protect personal privacy
from other forms of governmental invasion. But the rotection of
erson's eneral ri ht to
rivac

the digital world or cyberspace. Though in varying degrees, the Internet has become an extension not only of everyone's lives. Thus, it has become a new sphere where

- his ri ht to be let alone b

other 00 to - is like the rotection of his ro ert and of his

very_^, left largely to the law of individual States. " (Emphasis and
underscoring supplied) Pertinently, in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010), it

was held that even email that passes through a third party Internet Service Provider ("ISP") is still covered by the protection of the right to privacy, thus:
"In confronting this question, we take note of two bedrock
principles. First the re
fact that information is bein assed

thr u h a communications network is a

aramount Fourt

me dinen consider tion. See ibid. ; United States v. U. S. Dist. Court, 407 U. S. 297, 313 (1972) ('tTlhe broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails neoessitate the application of Fourth Amendment
safeguards. '). Second, the Fourth Amendment must kee
ace with

the in exorable march of technolo ical ro ress or its uarantees

unl^ish. See Kyllo v. United States, 533 U. S. 27,34 (2001) (rioting that evolving technology must not be permitted to 'erode the privacy guaranteed by the Fourth Amendment'); see also Orin S.
Kerr, Applying the Fourth Amendment to the Internet: A General

Approach, 62 Stan. L. Rev. 1005, 1,007 (2010) (arguing that 'the differences between the facts of physical space and the facts of the
Internet require courts to identify new Fourth Amendment distinctions
to maintain the function of Fourth Amendment rules in an online

environment').

XXX

30

,
.

If we accept that an email is analogous to a letter or a

phone call, it is manifest that agents of the government cannot

compel a commercial ISP to turn over the contents of an email

without triggering the Fourth Amendment. An ISP is the

intermediary that makes email communication possible. Emails must

pass through an ISP's servers to reach their intended recipient. Thus,

the ISP is the functional equivalent of a post office or a telephone

company. As we have discussed above, the police may riot storm

the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call - unless they get a warrant, that is. See JOGobsen, 466 U. S. at 1.14; Katz, 389 U. S. at 353. It only stands
to reason that, if government agents compel an ISP to surrender the

contents of a subscriber's emails, those agents have thereby

conducted a Fourth Amendment search, which neoessitates

compliance with the warrant requirement absent some exception. " IEmphasis and underscoring suppliedl
Although, through the dichotomy, the Cybercrime Prevention Act makes a

feeble attempt to avoid unconstitutionality, the same is still violative of the

Constitution. Respondents, themselves, even recognize the danger of Section 1.2 by admitting that it barely passes the tests of constitutionality:
"JUSTICE CARPIO:

But the law defines traffic data now. And the policeman will go to PLDT: 'This is the low. I don't need a search warrant to get this kind o1 data. ' So, PLDT will give. Is that constitutional? Does that violate your
right to privacy?
SOLICITOR GENERAL JARDELEZA:

Our answer, Your Honor, is it is

it is constitutional

because under the present state of the law, this Court or previous Courts have not said that traffic data is covered by the constitutional right to privacy. That is why, Your Honor, in our Memorandum we say it is constitutional ..... it is constitutional but linterruptedl
JUSTICE CARPIO:

It is constitutional until we declare it is not, that's what you are saying?

SOLICITOR GENERAL JARDELEZA:

If I may ..... but ..... barely. lintelruptedj

31.

. .

JUSTICE CARPIO:

I want to know what is really the law? Is itconstitutional? It doesn't to you, would you raise the defense of Privacy?
SOLICITOR GENERAL JARDELEZA:

.....

forget about our decision, what do you think? Would you, if it happens

If it happens to me, Your Honor, I cannot argue privacy because the data, the data on telephone, is external data, Your Honor. Therefore, if Your Honor please, but that is not covered by privacy, but, Your Honor, as we have said in our Memo and with all due respect to the Congress, taking as instructive the experience, for example, in the United States, in that jurisdiction, springing from the same premise that there is 00 constitutional right to privacy, their Congress gave a
statutory right. Traffic data can be exercised only if the trigger is riot any kind of law enforcement authority but a Federal United States attorney going to a judge, Your Honor, but that is statutory futonuptedj
.....

JUSTICE CARPIO:

But that is not here. Here, it's any police officer can do it.
SOLICITOR GENERAL JARDELEZA:

That is why, Your Honor, I am saying it is constitutional, but barely.

That's my answer, Your Honor. "' IEmphasis suppliedI

It is significant to note that respondents have pointed to the alarming character of Section 19 of the Cybercrime Prevention Act as early as in their
Consolidated Comment, when the Office of the Solicitor General stated in an honest and unequivocal manner that

"In this Comment, the Office of the Solicitor General vigorously defends the constitutionality of R. A. No. 1,0175, in its entirety, except only as to Section 1.9, on restricting or blocking access. With all due respect to the Congress, the OSG submits that Section 19 if constitutionalIy impermissible, because it permits a form of final
restraint on s eech without rior 'udicial determination. As to Section

1.2, on the real time collection of traffic data, the OSG defends its constitutionality. However, again with all due deference to the Congress, the OSG submits that the Con ress inari in Its
.

wisdom consider amendin

the Section to

ovide for

nor

'udicial authorization. "' IEmphasis and underscoring suppliedl

7 a

Pages 47 and 48, TSN of the Oral Arguments, 29 January 2013. Pages 7 and 8, Consolidoted Comment.

32

, .

and

Lest citizens' most cherished and jealously guarded fundamental civil

political rights hang in the balance, for a law that affects the lives of

good enough. It does riot even come close to even the faintest shadow of
constitutionality.

millions upon millions of Filipinos, barely is riot good enough - it will never be

Section 12 of the Cybercrime Prevention Act states that the content and identity of the participants to the intercepted Traffic Data shall neither be monitored

nor recorded. Nevertheless, Traffic Data encompasses the origin, destination, route, time, date, size, duration, or type of data. Once such data is acquired, it becomes easy for law enforcement authorities to verify identities through other investigative methods. The acquisition of such Traffic Data is, thus, the critical jump-off point or springboard for violations of an individual's right to privacy - again, all without the
benefit of judicial intervention. Worse, Section 12 of the Cybercrime Prevention Act allows the collection or

recording of traffic data connected to "specified communications". No definition is

provided with respect to the scope of "specified communications". If this were taken

to mean that law enforcement authorities possess a suspicion as to the nature of the communications, or the identity of the parties which they cannot substantiate, then the gathering of data relating to the origin, destination, route, time, date, size, duration, or type of such data would be in the nature of a fishing expedition which cannot be countenanced by the Honorable Court. IRoxas v. Moonpogal-Arroyo,
630 SCRA 211 (2010)l

In fact, in United States v. Jones, 565 Us , 132 S. Ct. 945 (2012), the United States Supreme Court held that attaching a Global Positioning System
("GPS") device to a vehicle, and the Government's use of that device to monitor the

vehicle's movements, constitutes a search contrary to the constitutionalIy guaranteed

right against unreasonable searches and seizures.

Moreover, respondents' vigorously-defended distinction that data other

than Traffic Data to be seized or disclosed shall require a judicial intervention through a court warrant is nothing more than a paper distinction that cannot serve to protect an individual's reasonable expectation to privacy. To reiterate, once law enforcement authorities acquire the origin, destination, route, time, date, size, duration or type of data (or what respondents supposedly characterize as "outside" data), the content andlor identities of the targeted individuals are easily verifiable through other means. Consequently, the requirements of judicial intervention andlor court warrant to determine noritraffic (or "inside" data) has been rendered nugatory and meaningless
considering that an unreasonable intrusion into the individual's sphere of privacy has already been made and is irreversible.

33

.
.

Further, it is arguable that majority of the users of electronic media, such as

the internet, are unaware that their messages or transactions contain traffic data, which under the Section 12 of the Cybercrime Prevention Act, may be monitored by
law enforcement authorities under the convenient justification of "due cause".

Verily, the Constitution protects not only content and identity but all incidentslaspects of communication and correspondence, including who a person chooses to talk to, how long that person chooses to correspond with them, the manner by which they converse or correspond, among others, Thus, the whole
process of communication and correspondence is zealously protected by the Constitution and can only be curtailed by lawful warrant upon probable cause. That's precisely the safeguard provided for by the judicial process, which the Assailed Provisions, particularly Section 12 of the Cybercrime Prevention Act, totally and
uriapologetically disregard. There being 00 relinquishment of the reasonable expectation of privacy over

the same, Traffic Data cannot be subjected to search and seizure by law enforcement authorities under the flimsy excuse of "due cause" as an individual has a reasonable expectation of privacy over the same. Everyone has a right to privacy,
communication and correspondence that should be respected - by Constitutional
command.

B.

Section 12 Of The Cybercrime

Prevention Act Constitutes An Unreasonable Government Intrusion

As It Lacks Safeguards Against

Possible Abuses By Possessors Of Acquired Data.

With all due respect, it is submitted that Section 12 of the Cybercrime

Prevention Act constitutes unreasonable Government intrusion into an individual's

right to privacy and of privacy of communication and correspondence as it lacks any safeguards whatsoever against possible abuse of the data acquired. In Ople v. Torres, supro, the Honorable Court held that the absence of safeguards for the potential misuse of data gathered through government regulation is a potential threat to the Bill of Rights. Likewise, indefinite ness as to the purpose of the data to be gathered will give rise to potential abuses by authorities. In said case, Administrative Order No. 308 required the use of biometric scanners to record all
government transactions of an individual. The Honorable Court held that the

absence of guidelines and safeguards constitutes a violation of the right to privacy:

34

. ,

"xxx Considering the banquet of options available to the

implementors of A. 0. No. 308, the fear that it threatens the ri ht to
rivac of our co Ie is riot roundless.

xxx This is an admission that the PRN will not be used solely
for identification but for the generation of other data with remote

relation to the avowed purposes of A. 0. No. 308. Orearl^the

indefinite ness of A. 0. No. 308 can ive the overninent the rovin
authorit to store and retrieve infor ation for a or OSe other than the i entification of the individual throu h his PRN.

The potential for misuse of the data to be gathered under A. 0.

No. 308 cannot be under played as the dissenters do. Pursuant to said

administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded - whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for
loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. " [Emphasis supplied] In the instant case, even a cursory perusal of Section 12 reveals a dearth of information as to what purpose the data gathered shall be used for. Nowhere in Section 12 can be seen the limits of the use of the data gathered by law enforcement authorities. Simply put, under Section 1.2, law enforcement authorities are given the unrestrained power to secure data for whatever purpose they may deem fit. This is patently contrary to the Honorable Court's pronouncement in Ople v. Torres, sunro. Notably in Ople v. Torres, supro, the offending law likewise attempted to make a distinction between certain forms of data without specifying how such data shall be segregated. To this, the Honorable Court ruled thus:
"We can even rant ar uendo that the coin uter data file will be limited to the name address and other basic ersonal information about the individual Even that hos itable assum tion will riot save A. 0. No. 30 from constitutional infirmit for a ain said order does riot tell us in clear and

35

Gate oneal terms how these inform tion

at hered shall be or OSe. These

h ridled. It does riot rovide who s all control and access the
data under wha circumstances and for what

factors are essential o safe uard the rivac and uarant the

inte rit of the information. Well to note, the, computer linkage gives
other government agencies access to the information. Yet, there are
no controls to guard against leakage of information. When the

access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. " IEmphasis and underscoring suppliedl Applying the foregoing to the instant case, Section 12 likewise attempts to distinguish between traffic and non-traffic data without providing the procedure of segregating the same. Moreover, the Cybercrime Prevention Act is bereft of safeguards to control the access and handling of such data. Neither does the Cybercrime Prevention Act guarantee the integrity of such data, nor does it provide
measures against possible leakage of information. From the foregoing, it is clear the threat of potential abuse enunciated in Ople v. Torres, supro, is likewise extant in the Cybercrime Prevention Act. Section 12 thereof, if left uriabated, would invite potential misuse of data gathered and sanction violations of the right to privacy. Thus, Section 12 is an unwarranted State intrusion into an individual's reasonable expectation of privacy and should, therefore, be
struck down and declared uriconstitutional.

C.

Section 12 Of The Cybercrime

Prevention Act Constitutes An
Unreasonable Government Intrusion

As It Renders Existing Safeguards Against Invasion Of Privacy, As Well

As

Communications

And

Correspondence, Nugatory.

The Honorable Court has conclusive Iy held that the right to privacy is protected not only by the Constitution but by statutory law, as well. In Marquez v. Desiert0,359 SCRA 772 (2001), the Honorable Court held thus:
"Zones of rivac are reco nized a d
rotecte
in our

laws. The Civil Code provides that "telvery person shall respect the dignity, personality, privacy and peace of mind of his neighbors and
other persons" and punishes as action able torts several acts for

meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes
36

,
.

the privacy of letters and other private communications. The Revised

Penal Code makes a crime of the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the AntiWiretapping Law, the Secrecy of Bank Deposits Act, and the

Intellectual Property Code. " IEmphasis and underscoring suppliedl

Moreover, the provisions on the Rules of Court regarding the privacy andlor

confidentiality of certain information are a form of protection of an individual's right to

privacy. [Ople v. Torres, supro] In light of the importance placed on an individual's right to privacy, the
Honorable Court promulgated A. M. No. 08-,.-,. 6-SC, otherwise known as the Rule on

the Writ of Habeas Data, Section I of which states that said writ is a remedy available to persons whose right to privacy in life, liberty or security is threatened:
"Section I. Habeas Data. - The writ of habeas data is a remedy available to any person whose ri ht to rivac in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. " IEmphasis and
underscoring suppliedl

In Roadguez v. Moonpagal-Arroyo, 660 SCRA 84 (2011), the Honorable Court held that the writ of habeas data is a remedy to protect a person's right to control information regarding oneself. It is a remedy to protect information al privacy:
"Meanwhile, the writ of habeas data provides a judicial

remedy to protect a person's right to control information regarding oneself, particularly in instances where such
information is be in collected throu h unlawful means in order to achieve unlawful ends. As an inde endent and summa reined

to protect the right to privacy - especially the right to illf^ privacy- the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (0) in case the
database or information contains erroneous data or information, order

its deletion, destruction or rectification. "

37

4
.

Habeas Data nugatory and irrelevant. To relterate, the Writ of Habeas Data seeks to
prevent the unwarranted intrusion of public officials, such as law enforcement

Section 12 of the Cybercrime Protection Act renders the remedy of the Writ of

authorities, into one's private information, yet Section 12 of the Cybercrime

on the flimsy justification of "due cause". Clearly, the Cybercrime sanctions the evils which the Writ of Habeas Data seeks to prevent.

Protection Act allows law enforcement authorities to collect and monitor traffic data
Protection Act

Moreover, as discussed, there is 00 limitation present under Section 12 of the

Cybercrime Prevention Act with regard to the purpose of the collection and
monitoring of traffic data, as well as the allowable ends within which law enforcement

authorities may utilize such seized data. It does not require a stretch of logic to
conclude that nothing in Section 12 of the Cybercrime Prevention Act hinders law

enforcement authorities from potentially using gathered data to perpetuale violations against an individual's right to privacy with respect to life, liberty, and security.
Finally, the Writ of Habeas Data seeks to protect individuals from threats to

the right to privacy in life, liberty or security from unlawful acts of public officials.

Section 12 of the Cybercrime Prevention Act is wholly contrary to the foregoing since
it provides government sanction to actions of law enforcement authorities, which would otherwise be an unlawful intrusion into an individual's right to privacy.
From the foregoing, it is clear that Section 12 of the Cybercrime Prevention

Act seeks to render the Honorable Court's laudable actions to safeguard an

individual's right to privacy nugatory. This cannot be countenanced and, thus, Section 12 of the Cybercrime Prevention Act must be struck down.
1/1.

Section 12 Of The Cybercrime Prevention Act Is Patently Uriconstitutional Considering That It Violates An Individual's Right To
Unreasonable Searches And Seizures.

Section 2, Article in of the Constitution, which is recognized as a form of protection of an individual's right to privacy, provides the standard of probable cause before searches and seizures may be conducted: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and 00 search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the

witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. "
38

,
.

supported by circumstances sufficiently strong in themselves to induce a cautious the Philippines v. Tnn, 634 SCRA 773 (2010)I

Probable cause has been defined as "a reasonable ground of suspicion

inari to believe that the person accused is guilty of the offense charged. " tPeople of
Pertinently, Section 12 of the Cybercrime Prevention Act allows law

enforcement authorities to collect or record an individual's traffic data upon the existence of "due cause". However, the terms "collect" and "record" are, in reality, euphemisms for "seizure without due process of law". Thus, the foregoing is patently
contrary to the constitutional protection against unwarranted searches and seizures. First of all, neither the Cybercrime Prevention Act, nor other pertinent laws,
define "due cause". Thus the absence of a standard of "due cause" allows law

enforcement authorities to determine for themselves whether or not the recording or collecting of data is necessary or lawful. Moreover, the possibility exists that law enforcement authorities may set a standard far below the standard of probable
cause for the seizure of data under Section 1.2.

Respondents themselves in their Oral Arguments agree that the power given to law enforcers to collect and record traffic data is subject to abuse and that that the
Cybercrime Prevention Act is not clear on how "due cause" should be determined:
"JUSTICE DEL CASTILLO:

Counsel, it seems to me now that because Congress did not define, the phrase "due cause" in Section 12 of the Cybercrime Law, this
power now of government to collect and record traffic data is

subject to abuse. You were saying earlier that any policeman who believes that a crime has been committed or would just for instance in the example you gave earlier could go to any of the process
servers, at any of the service providers and collect data?
SOLICITOR GENERAL JARDELEZA:

That is right, Your Honor. "' IEmphasis suppliedl

Respondents likewise tellingIy agreed, as previously stated, that citizens'

"rights would be better protected if there is judicial intervention. ""

9 1.0

Page 67, TSN of the Oral Arguments, 29 January 201.3. Pages 50 and 51, TSN of the Oral Arguments, 29 January 201.3

39

. .

Further, as initially discussed, the seizure of data espoused under Section 12

of the Cybercrime Prevention Act is not anchored on a specific purpose for the
collection of the same. Section 12 does not state the purpose for the seizure or use of such data, e. g. for criminal prosecutions and other legitimate State interests. The consequence of the foregoing is that law enforcement authorities are granted nigh unlimited justification to intrude upon a person's right to privacy. This unbridled discretion granted to law enforcement authorities effective Iy deprives an individual of his constitutionalIy assured protection against unwarranted searches and seizures, as well as his constitutional right to privacy and the privacy of communication and correspondence. Respondents admitted that "a more robust procedural safeguard" would have been better than giving a blanket authority to law enforcers to inspect
each and every traffic data available, thus:
"JUSTICE LEONEN:

Yes, but in 101.75 it simply says that the government can come in for due cause. It does not say that it's a judicial authority irispite of the fact that Section 3 says upon lawful order of the court. But to be fair, counsel, there is a qualifier, "or when public safety or order requires

otherwise as prescribed by law". But looking at the Cybercrime

Regulation Act, would you say that there is enough judicial Iy deter minable standards to say when public safety or order requires otherwise or are we not giving too much a blanket authority to the authorities to inspect every packet of data that is available out there?
SOLICITOR GENERALJARDELEZA:

As we said in our comment, Your Honor, the regime cuts it too close

for comfort. You know, as we say, it's constitutional but we agree

there can be more robust procedural safeguards, Your Honor. ""

IEmphasis suppliedl However, Section 12 of the Cybercrime Prevention Act cannot be cured by its implementing rules and regulations. Section 1.2, as it is written, stands as a general
warrant to everyone to which the law shall apply. In Vowelo v. Court of Appeals, 427 SCRA 658 (2004), the Honorable Court

ruled that the property to be seized must be particularly described so as to preclude any possibility of seizing any other property
"The things to be seized must be described with

particularity. Technical precision of description is not requires. It is

only necessary that there be reasonable particularity and certainty

as to the identity of the property to be searched for and seized, so

It

Pages 72 and 73, TSN of the Oral Arguments, 29 January 201.3.

40

I ,

that the warrant shall riot be a mere roving commission. Indeed,

the law does not require that the things to be seized must be described

in precise and minute detail as to leave 00 room for doubt on the part of the searching authorities. If this were the rule, it would be virtually
impossible for the applicants to obtain a warrant as they would not know exactly what kind of things to look for. Any description of the place or things to be searched will enable the officer making the search with reasonable certainty to locate such place or thing is
sufficient.

However, the requirement that search warrants shall

particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. Thus, the specific property to be searched for should be so particularly described as to preclude any possibility of seizing any other property. " IEmphasis
suppliedI

Section 12 of the Cybercrime Prevention Act allows the law enforcement

officers to search and seize traffic data without any clear standard to determine with
reasonable particularity and certainty as to what data should be collected and
recorded.

In this connection, it is elementary that rules and regulations are limited and circumscribed by the provisions of its law it is implementing. An administrative agency has 00 power to amend or unduly expand the law it implements through the mere issuance of rules and regulations. ITeoxon v. Members of the Board of Administrators, 33 SCRA 585 (1970)l Further, as stated in Peloez v. Auditor
General, 122 Phil. 965 (1965): "Congress may delegate to another branch of the government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the

principle of separation of powers, that said law: (a) be complete in itself - it must set forth therein the policy to be executed, carried out or implemented by the delegate - and (b) fix a standard - the limits
of which are sufficiently deter minate or deter minable - to which the

delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, the delegate would, in
effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the

delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to
41

.
.

make the law, but, also - and this is worse - to unmake it, by adopting measures inconsistent with the end sought to be attained by
the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently undermining the very foundation of our Republican system. "
IEmphasis suppliedl

Moreover, Section 12 of the Cybercrime Prevention Act allows the real-time

monitoring and seizure of traffic data. In light of the unchecked discretion granted to
law enforcement authorities to determine for themselves whether there exists a

justification for resort to Section 12 of the Cybercrime Prevention Act, it opens the
possibility to a 2417 intrusive surveillance by law enforcement authorities without probable cause as justification for the same. This clearly constitutes an untoward intrusion into an individual's right to privacy and the privacy of communication and
correspondence.

From the foregoing, the vague standard of "due cause" cannot in any way whatsoever substitute for the recognized standard of probable cause found in the Constitution without violating an individual's right against unreasonable searches and seizures, as well as his right to privacy and the privacy of communication and
correspondence.

With all due respect, the Honorable Court cannot afford to give Section 12 of

the Cybercrime Prevention Act a chance. It provides such sweeping authority to intrude into our privacy unnecessarily. There is 00 need to provide law enforcement
officers the power to collect and record traffic data to curtail cybercrime. Existing laws already provide law enforcement officers the power to investigate on a certain criminal act, without first collecting and recording traffic data, in order to build basis for asking a search and seizure warrant of traffic data from the courts. In Katz v. United Sures, sunro, the United States Supreme Court held that the investigation conducted by the authorities before they began their warrantless electronic surveillance would have been enough to grant them judicial warrant to perform such
electronic surveillance and, thus, the conducted surveillance would have been upheld:

"The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in
question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in

scope and in duration, to the specific purpose of establishing the

contents of the petitioner's unlawful telephonic communications. The
42

agents confined their surveillance to the brief periods during which he

used the telephone booth, 1.4 and they took great care to overhear
only the conversations of the petitioner himself.
Accepting this account of the Government's actions as

accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutional Iy have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of 1389 U. S. 347, 3551 such an
authorization, holding that, under sufficiently 'precise and discriminate circumstances, ' a federal court may empower government agents to
employ a concealed electronic device 'for the narrow and

particularized purpose of ascertaining the truth of the . . . allegations' of a 'detailed factual affidavit alleging the commission of a specific criminal offense. ' OSborn v. United States, 385 U. S. 323,329 -330. Discussing that holding, the Court in Berger v. New York, 388 U. S. 41 said that 'the order authorizing the use of the electronic device' in
of conventional OSborn 'afforded similar protections to those warrants authorizing the seizure of tangible evidence. ' Through those protections, 'no greater invasion of privacy was permitted than

was necessary under the circumstances. ' Id. , at 57. Here, too, a

similar 1389 U. S. 347,3561 judicial order could have accommodated "the legitimate needs of law enforcement" by authorizing the carefully limited use of electronic surveillance. " tEmphasis and underscoring
suppliedl

Moreover, the collection of Traffic Data under Section 12 of the Cybercrime Prevention Act cannot be likened to a valid warrantiess search of a moving vehicle and to that under exigent circumstances since these exceptions to the rule do not

dispense with the requirement of probable cause. The Honorable Court in Animg, Jr.
v. Commission on Elections, 237 SCRA 424 (1994), reiterated the wisdom of Vatmonte v. de Villa, 1.78 SCRA 21.1 (1989), holding that a warrantless search conducted by law enforcement officers require that said officers had reasonable or probable cause to believe before the search that a crime is being committed: "An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumental ity or evidence pertaining to the
commission of a crime in the vehicle to be searched. The existence of

probable cause justifying warrantless search is determined by the facts

of each case. "

43

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~

Unlike the standard required for valid warrantless searches, only the flimsy
and unprecedented "due cause" is required from law enforcement officers in collecting and recording traffic data. Furthermore, in cases of warrantless searches of moving vehicles and in cases of exigent circumstances, law enforcement officers
already have past experiences as basis to determine what situations call for a

warrantless search of a moving vehicle or when there is exigency to warrant swift action. In the case of collecting and recording traffic data, however, law enforcement authorities would be dealing with this information for the first time, without specific standard to follow notwithstanding the grave danger it poses upon the fundamental
right to privacy. In fact, respondents in their Consolidated Comment conceded that the statutory protection provided by Section 12 of the Cybercrime Prevention Act pales in comparison to the Pen Register Act and the PATRIOT Act in the United States in terms of safeguards in the collection of Traffic Data considering that the foreign statutes require the issuance of a judicial warrant prior to any electronic surveillance
over Traffic Data:

"Indeed compared to the statutory protection afforded by the

Pen Register Act and the Patriot Act to the collection of traffic data in

the United States, the protection afforded by Section 12 of R. A. No.

10/75 is minimal. Still, they afford some protection. "" IEmphasis

and underscoring suppliedI Although respondents argue in their Consolidated Comment that "the decision on the range of the protection" afforded to citizens "resides in the wisdom of the Congress" and that the Cybercrime Prevention Act "could have been crafted to provide more robust procedural safeguards respecting the collection of trafficlnon-content data, i. e. , at a minimum requiring that the
request be made by an attorney of the Department of Justice to a judge; that the information likely to be obtained is relevant to an ongoing investigation;

and that the collection be made only after the issuance of a judicial warrant"",
the issue before the Honorable Court is riot of wisdom but of constitutionality. It is respectfully submitted, therefore, that no amount of legislative wisdom or prerogative can legitimize an uriconstitutional statutory enactment. Again, for a law that affects the lives of millions upon millions of Filipinos, barely is not good enough - it will never be good enough. The Cybercrime Prevention Act does riot even come close to even the faintest
shadow of constitutionality.

12
13

Pages 1.38 and 1.39, Consolidated Comment.

Page1.39, Consolidated Comment.

44

,
.

The other provisions of the Cybercrime Prevention Act that flow from the

Assailed Provision likewise suffer the same fatal flaw, including the provisions that
authorize the disbursement of public funds for the implementation of the law.
IV.

Section 19 Of The Cybercrime Prevention Act

Is Null And Void For Being Uriconstitutional

Considering That It Is Violative Of The Due

Process Clause Under Section I, Article 111 Of

The Constitution, For Failing To Provide Any

Procedural Safeguards In Its Implementation
AndlOr Enforcement.

It is significant to note that respondents have conceded as uriconstitutional

Section 19 of the Cybercrime Prevention Act. In plain, ordinary and unmistakable

language, respondents stated in their Consolidated Comment that
"In this Comment, the Office of the Solicitor General

vigorously defends the constitutionality of R. A. No. 101.75, in its

entiret exce on I as to Section 19 on restrictin or blockin

access. With all due respect to the Congress, the OSG submits
that Section 19 if constitutional I jin ermissible because it erm'ts a form of final restraint on s eech without nor 'udicial

determination. "" Em hasis and underSCO ' In view of the position taken by the Office of the Solicitor General with respect

to Section 19 of the Cybercrime Prevention Act, the Honorable Court, in its Advisory dated 09 January 201.3, gave the Congress the opportunity to defend the constitutionality of said provision. During the Oral Arguments on 15 January 201.3, the Honorable Court asked to be clarified whether any representative of the
Congress will be arguing for Section 1.9, to which the Solicitor General responded

that he has not been so advised. " Subsequently, in a Monies tofun dated 17
January 2013, the Office of the Solicitor General informed the Honorable Court that

"the lawyers for both Houses of Congress have informed the undersigned that they will not argue for the constitutionality of Section 1.9". The Solicitor General reiterated

this during the Oral Arguments on 29 January 2013. " Thus, it cannot be more clear
that 00 official, agent or representative of the State chooses to defend this draconian
provision.

During the Oral Arguments on 29 January 201.3, respondents, as part of their concession with respect to the unconstitutionality of Section 1.9, even admitted that the victory will belong to all parties if the Honorable Court strikes down said provision
law, thus:
14
15 16

Page 7, Consolidated Comment.

Pages 10 and 1.1, TSN of the Oral Arguments, 15 January 2013.

Page 12, TSN of the Oral Arguments, 29 January 2013.

45

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,

"SOLICITOR GENERAL JARDELEZA:

xxx We take seriously the claim that 10/75 overreaches into protected

freedoms particularly the freedom of speech and expression and the right to privacy. We do so, for we in the OSG, equally with the
petitioners are committed to the protection of our constitutional freedoms. We too believe, Your Honors, that freedom of speech is delicate, vulnerable, and needs breathing space to survive. We too believe that without speech, discussions of our most abiding concerns
as a nation will be stifled. In fact Your Honors it is in this s int tha the OSG after much thou ht has come to our conclusion that
Section 19 of 10/75 as worded jin ermissivel intrudes into s eech or concession has been chalked u as a vieto for the etitioners. Your Honors wit res ect we humbl submit that should his Honorable Court strike down Section 19 the vieto will belon to all of us to 11 of us who cherish free s eech and

^ion. xxx"" IEmphasis and underscoring suppliedI

Indeed, Section 19 of the Cybercrime Prevention Act must be struck down for being uriconstitutional. In particular, said provision is being violative of the Due Process Clause under Section I, Article 111 of the Constitution, which provides:
"Section I. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. " Procedural due process simply means procedural fairness. In the early case

of Lopez v. Director of Lands, 47 Phil. 23,32 (1924), procedural due process has been fittingIy articulated to mean a "law which hears before it condemns". Although admitted Iy the requirements of procedural due process may differ depending on the kind of proceeding, i. e. judicial or quasi-judicial, 00 one can deny the heart of due process is to provide a person a real and genuine (as opposed to illusory) opportunity to be heard and present his or her side.
In this connection, Section 19 of the Cybercrime Prevention Act empowers

the Department of Justice ("DoJ") to issue orders restricting andlor blocking data that are found primojocie in violation of said law. However, in plain and direct terms,

it fails to provide the owner of the target computer the opportunity to explain why such computer or data should not be restricted andlor blocked. The Cybercrime Prevention Act fails to provide any procedural rules and standards on how Section
19 shall be enforced, much less any procedure as to how persons affected or aggrieved by the implementation andlor enforcement may be heard in their defense.
L7

Page 1.7, TSN of the Oral Arguments, 29 January 2013.

46

, ,

locie violation, which will justify the restriction andlor blocking of websites.

Hence, Section 19 does riot give ample protection to citizens, especially bloggers and netizens, due to the lack of judicial intervention in the determination of a prima
Even a cursory glance of the Cybercrime Prevention Act readily reveals that it

does not provide any procedural rules and standards on how Section 19 shall be

enforced, much less any procedure as to how persons affected or aggrieved by the implementation andlor enforcement may be heard in their defense. This will simply leave the DoJ with unbridled discretion to issue orders restricting andlor blocking
access to computer data that alleged Iy are in prima focie violation of the Cybercrime

Prevention Act, without, however, giving the owners of said targeted computer data even an iota of opportunity to explain why said computer data should not be
restricted andlor blocked.

InterestingIy, the quantum of evidence required under Section 19 of the

Cybercrime Prevention Act to set into motion the authority given to the DoJ to issue
restricting andlor blocking access to computer data is only the very low standard of prima focie evidence. It is of 00 secret that prima locie evidence is the lowest among
the hierarchy of quantum of evidence needed to sustain valid a decision or action on

the part of the government. In fine, this Honorable Court has defined prima facto evidence as "evidence which, if unexplained or uricontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence". IWCi-neon v. People o1 the Philippines, 510 SCRA 429 (2006)l Although prima focie evidence may be contradicted by other evidence, it may very well be reiterated with the risk of being redundant that there are actually 00 procedural
safeguards in the Cybercrime Prevention Act through which the affected or aggrieved persons may present such contradicting evidence. Hence, with such low degree of evidence required, coupled with the obvious dearth of procedures in the Cybercrime Prevention Act on how the persons affected or aggrieved by its implementation could contest or contradict such prima mole evidence, there is clearly 00 doubt that the DoJ has now been given omnipotent power in issuing orders restricting andlor blocking access to computer data. In this regard, the DoJ can virtually bring down any website it deems unacceptable under the all-encompassing pretense of "prima focie evidence", without regard as to whether the aggrieved party has been able, much less given a real opportunity, to present his side and defend himself. There can never be a justification for the menace to and the threat of abridging the most cherished and jealously guarded fundamental civil rights, particularly in this instance the right of the people to due
process, which Section 19 of the Cybercrime Prevention Act inevitably creates.

Thus, in view of the foregoing alone, Section 19 of the Cybercrime Prevention Act should be struck down for violating the Due Process Clause of the Constitution. The other provisions of the Cybercrime Prevention Act that flow from the Assailed
Provision likewise suffer the same fatal flaw, including the provisions that authorize the disbursement of public funds for the implementation of the law.
47

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.

V.

Section ^9 Of The Cybercrime Prevention Act

Is Null And Void For Being Uriconstitutional Considering That It Is Violative Of The Right
Of Citizens Against Unreasonable Searches

And Seizures, As Provided Under Section 2,

Article in Of The Constitution, For Failing to

Satisfy The Requirements of A Finding Of

Probable Cause Prior To A Search.

Section 19 of the Cybercrime Prevention Act should likewise be declared null

and void for being violative of Section 2, Article in of the Constitution, which
provides:

"Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and 00 search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the judge

after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. " Section 19 of the Cybercrime Prevention Act is clearly violative of Section 2,
Article 111 of the Constitution, since it authorizes the issuance of a seizure warrant

under the following circumstances: (1) issuance by a person, other than a_. judge; (2) issuance on the basis of only a prim^gele showing, instead of a finding of probable
cause, of any violation of the provisions of the Cybercrime Prevention Act; and (3)

issuance without the required examination under oath of a complainant and the
witnesses that may be produced. As it stands, Section 19 of the Cybercrime Prevention Act authorizes the DoJ

to issue an order to restrict andlor block access to computer data that are primalacre in violation of the same law. It must be pointed out that restricting andlor blocking
access to computer data has a very similar, if not the same, effect of seizing the target data. In essence, by restricting andlor blocking access to computer data, the author thereof is deprived of his ownership over his intellectual creation or his copyright over the data, while the owner or proprietor of the media where it was displayed, i. e. owner of a website, is deprived of his right to operate such site - both in the same manner that an owner of a physicalItangible thing or object seized is deprived of his rights over said object. Thus, before restricting or blocking access to computer data must be authorized, the requirements for valid seizures as mandated under Section 2, Article in of the Constitution must be present and complied with.

48

that when the intended recipient of information transmitted through the Internet fails
to receive such information as sent, there is already an interception:
"xxx A seizure of moving or movable property occurs only

his article e t'tl d of Computer Data, emphasized his article entitled Fourth Amendment Seizures F rth A ' ' '

In connection with restriction andlor blocking of computer data, Orin Kerr, in

when government action alters the path or timing of its intended

possession or transmission. Copying data as part of its usual

course of transmission or storage does riot seize anything, because its intended path or timing has not been interrupted. As a result, treating copying as a seizure does not require the conclusion
that routine computer use implicates constant Fourth Amendment

seizures. Government copying of computer data seizes that data only

when it copies the data outside the expected course of its transmission

or possession. "" IEmphasis suppliedl

Interception in this case would amount to a seizure of data. Hence, if the DoJ

restricts andlor blocks information sent through the Internet upon a finding that there

is a prima focie violation of the Cybercrime Prevention Act, there would already be a
seizure, even before the finding of a probable cause, in violation of Section 2, Article 1/1 of the Constitution and Section 4, Rule 1.26 of the Rules of Court, as well as ruling case law. 1stonehill vs. Diokn0, 20 SCRA 383 (1967); Vowelo vs. Court of Appeals, 427 SCRA 658 (2004); People of the Philippines vs. Turn, 628 SCRA
226 (2010)l Furthermore, it has been POSited that even if data uploaded is non-personally identifiable, it may lead to the revelation of intimate details about the sender: "Digital traffic data in the hands of the average person may not be personally identifiable, but could take on a very different significance in the possession of someone able to link a pseudonym either an IP address or some other unique identifier - with a particular individual, either by technical or legal means. Under such circumstances, otherwise non-personally-identifiable data could easily reveal intimate details of an individual's personal lifestyle or private decisions and therefore would be deserving of ^ 8 protection. This
point relates both to the values represented by the data and the

relationship of the subject of the data to the third party who is in possession or control of it both aspects will be explored in more detail

later in the paper. ""

18 L9

Onn Kerr, Fourth Amendment Seizures of Computer Data, 11.9 YALE L. J. 700 (2010). Jason Young, "Surfing While Muslim: Privacy, Freedom Of Expression 8 The Unintended Consequences Of Cybercrime Legislation", International Journal of Communication Law and Privacy, Issue 9, Special Issue on Cybercrime at page 15 myinter 2004/2005).

49

In this connection, Section 19 of the Cybercrime Prevention Act empowers the DoJ to issue orders restricting andlor blocking data that are found primulaeie in
violation of said law. To be able to assess said data and determine if there is indeed

a violation of the law, the DoJ has to look at and study the actual data being sent
before it even reaches the intended receiver. From this perspective, there would
already be a search of the data. And as a consequence of this search, information is now in the hands of DoJ, even before it procures a warrant. Related Iy, DoJ Assistant Secretary Geronimo L. Sy, who is also designated

as the Head of the DoJ Office of Cybercrime, discussed the Cybercrime Prevention
Act during the forum held on 09 October 201.2 and recognized the broad power lodged with the DoJ, thus admitting:
"xxx You know, in our saying, we always have a saying that we

have good intention in a lot of things that we do, but the highway to
hell is also paved with good intentions. We don't trust our good

intentions. We need the private sector, we need civil society, and

we need academe to watch government, to make sure that our good intentions are mixed with good methods for good results. We don't trust ourselves; we have good intentions. To do what is right, but we don't want to be complacent and trust ourselves just to do the right thing. We need you to watch us, we need it to look at us and say 'Hey! That's out of bounds, stop. We need you there,

eyes on the ball. ""' IEmphasis suppliedI

Taking cue from the admission of Assistant Secretary Sy that even the DoJ - the Government agency that is tasked to enforce the Cybercrime Prevention Act needs the private sector to check on the DoJ, the agency itself recognizes the broad and unchecked powers given to it by the law. Indeed, if the text of the Cybercrime Prevention Act itself sets limitations on the power of the DoJ to restrain andlor block websites - such as a requirement for judicial intervention prior to the actual restriction andlor blocking of websites - then there would have been a constitutional layer of protection as to the power granted to the State and the manner through which it will be exercised. However, the same is wanting in the Cybercrime Prevention Act, thus making it uriconstitutional. It should be emphasized that the potential for abuse of law enforcement powers under the Cybercrime Prevention Act is neither far-fetched nor remote. This is evident from the disposition of Assistant Secretary Sy himself when he practically encouraged the public to hack websites durlng the same forum hosted by the DoJ:

20

Page 1.1, Transcript of the Forum on the Cybercrime Prevention Act, 09 October 201.3.

50

"xxx Because of your presence here today, we would like to

convert this forum into a collaborative forum of doing the IRR to see how we can move forward. We're developing a new model of cybercrime enforcement in the world. Let me repeat that cybercrime

enforcement in the world. Can you imagine all the hacktivism, all
the hacktivists for the past two weeks and sa 'Ok in the next
two weeks wh don't we hack all the child orn sites? Wh don' we hack all t e edo hilia sites? Wh don't we hack x z sites that
are bad for SOCiet ?' Can ou jina ine unleas i the ower of each individual usin crowdsourcin technolo and then final I
at least inaria e some of th bad roblems instead of attacki overninent ebsites and brin in down state resources? xxx" Em hasis
uttin a sto

As quoted above, Assistant Secretary Sy made a clear and categorical public statement inciting and even encouraging the public to hack websites that he referred to as "bad for society. " Said public remarks clearly and categorical Iy incited and encouraged the public to violate the provisions of the Cybercrime Prevention Act that
the DoJ is mandated to implement, as well as other criminal laws that the DoJ is
tasked to enforce.

If a senior official of the DoJ is so cavalier as to incite the public to violate the
very law his agency is tasked to enforce and implement, it is not unreasonable to be alarmed that his subordinates would follow his lead. Petitioners certainly hope not.
But what assurances do citizens have that law enforcement authorities will not

perform or countenance the performance of violations of the Constitution? None, unfortunately. That is precisely the problem with the Assailed Provisions: the
potential for abuse is limitless and effortless.

As it stands, therefore, the strict safeguards against unreasonable seizures and seizures protected under the Constitution have been completely disregarded, or worse, entirely eliminated. Thus, on this score, Section 19 of the Cybercrime Prevention Act should be adjudged uriconstitutional and of 00 legal effect
whatsoever.

Vl.

Section 19 Of The Cybercrime Prevention Act Is Null And Void For Being Uriconstitutional

Considering That It Is Violative Of The Right Of The People To Freedom Of Speech Under
Section 4, Article in Of The Constitution.

Likewise, Section 1.9, in relation to Section 4(c)(4), of the Cybercrime Prevention Act, runs afoul with the constitutional Iy protected freedom of speech, particularly as it constitutes prior restraint. Prior restraint has been defined and

51

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understood as "official governmental restrictions on the press or other forms of

expressions in advance of actual publication or dissemination. xxx The mere

prohibition of government interference before words are spoken or published would be an inadequate protection of the freedom of expression if the government could
punish without restraint after publication. xxx Hence, the guarantee of freedom of

expression also means a limitation on the power of the state to impose subsequent
punishment. ,, 21

Section 19 of the R. A. No. 101.75 is undeniably prior restraint, in the form of

subsequent punishment, i. e. , the DoJ's issuance of orders restricting or blocking

access to computer data. This would definitely have a chilling effect on petitioners and citizens, thereby effective curtailing and rendering nugatory the constitutionalIy safeguarded right to freedom of speech and of expression.
In Chorez v. Gonzoles, 545 SCRA 441 (2008), the Honorable Court clarified

that a law which has an effect of prior restrain is presumed to be uriconstitutional and the government the government bears a heavy burden of proving its constitutionality. Needless to state, courts should only sustain the constitutionality of law constituting prior restraint only if there is a showing that a compelling state interest neoessitating
such prior restraint, thus:

"Only unprotected expression may be subject to prior restraint.

However, any such prior restraint on unprotected expression must

hurdle a high barrier. First, such prior restraint is pus^

uriconstitutional. Second the over ninent bears a he a of rovin the constitutional it of the nor restraint. burden

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest. " tEmphasis
and underscoring suppliedI

In applying the foregoing doctrines to the instant Petition, there is clearly 00 showing of any state interest sufficient to compel and warrant up holding of the prior restraint, which Section 19 of the Cybercrime Prevention Act operational izes.

21

Jonguin G. Belnas, SJ, THEL987CONSTiTUTioNOFTHEPHiLiPPiNEs:AGOMMENTARY253 (2009).

52

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.

In this connection, Assistant Secretary Sy admitted that before a website can

be restricted or blocked, the clear und present danger rule has to be met '' In
Sohenck v. United States, 249 U. S. 47 (1919), Justice Oliver We ridell Holmes Jr.
defined clear und present donger rule as:
"xxx The question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a

clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity
and degree. xxx"

In Gonzoles v. Commission on Elections, 27 SCRA 835 (1969), the Supreme Court emphasized that there is still a need for the court to weigh the
interests involved, to wit: "However useful the 'clear and present danger' formulation was

in the appraisal of a specific type of situation, there is fairly extensive

recognition that it is not a rule of universal applicability and validity, not
an auto atic mechanism that relieves a court of the need for careful scrutin of the fea ures of a iven situation and evaluation of the coin etin interests involved. " Em hasis su lied

It must be noted that under Section 1.9, the power to find a prima focie case
for the restriction andlor blocking of website is lodged with the DoJ. Under Section 1.9, the role of the court is supposedly not needed and, in fact, conveniently dispensed with. Thus, taking into consideration the admission of Assistant Secretary Sy, Section 1.9 goes against the settled standard of clear und present danger. In reality, 00 matter how innocent the wording of the law or provision may be, Section 1.9 stifles a person's voice and covers his ears. It is a Cyber Gag Rule that cuts off individuals from one another. It silences the originator of communication and prevents the intended recipients from hearing the message, without regard for its legitimacy and protected nature under the Constitution. As such, Section 19 is a euphemism; the State is actually telling its citizens to shut-up. It looks benign but, in reality, it means curtailment of the most cherished and jealously guarded civil and
political rights under the Constitution. Measured even by this standard alone, the Assailed Provisions fail to pass

constitutional scrutiny.

22

Pagell, Transcript of the Forum on the Cyberchine Prevention Act, 09 October 2013.

53

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,

Vll.

Sections 4(c)(4), 5, 6, And 7 Of The

Cybercrime Prevention Act Are Null And Void

For Being Uriconstitutional Considering That

Said Provisions Are Violative Of The Due

Process Clause Under Section I, Article in Of

The Constitution And Of The Free Speech

Clause Under Section 4, Article in Of The
Constitution.

Section 4(c)(4) of the Cybercrime Prevention Act broadens the definition of

libel provided in Article 355 of the Revised Penal Code, as amended. Notably, said provision adds the use of computer system or any other similar means that may be devised in the future as means of committing the crime of libel. Axiomatically, the complexity of the cyber world cannot be disregarded and be put on the same footing
as the conventional means of committing libel under the Revised Penal Code. Otherwise stated, the elements of libel cannot find application in the computer realm in the absence of specific definitions to govern the same. Section 4, Article in of the Constitution provides:
"Section. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of
grievances. "

In Chovez v. Gonzales, supro, the Honorable Court emphasized the

importance of this constitutional guarantee:

"Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Freedom of expression crystalIizes important public policy issues, and allows
citizens to participate in the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of

claims and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginal ized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead. "

54

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Verily, the Free Speech Clause prohibits both prior restraint and subsequent
punishment that have the effect of unduly curtailing expression. This includes the

"chilling effect" on protected speech that comes from statutes violating free speech.
Truly, a person who does not know whether .his speech constitutes a crime or

whether he will be prosecuted by the Government under an over broad or vague law
may simply refuse to speak to avoid being charged of a crime. The chilling effect results in deafening silence. This is exactly what Sections 4(c)(4), 5 and 6 of the
Cybercrime Prevention Act perpetuate to the detriment of petitioners' most cherished and jealously guarded civil rights under the Constitution. Petitioners do not doubt the intention of the lawmakers in passing the Cybercrime Prevention Act. Petitioners are fully aware of the abuses and crimes

which they intent to curtail such as child pornography and computer related fraud,
which they support completely. But the Government should not get ahead of itself and declare "martial law" within the cyber realm. Petitioners cannot emphasize enough that in this technological age, almost everyone is connected through
computer systems, be it through the internet or applications in mobile phones. Sadly,

the provisions of the law tend to deter the technologically advanced population from
moving forward.

Article 353 of the Revised Penal Code, as amended, defines libel, to wit:

"Art. 353. Definition of libel. - A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead. "

To be liable for the crime of libel, the following elements must be shown to exist: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (0) identity of the person defamed; and (d) existence of malice. IBrill"rite v. Court of Appeals, 440 SCRA 541 (2004)l Further, Article 355 of the Revised Penal Code provides that libel is committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition or any similar means. After the passage of the
Cybercrime Prevention Act, added to the list is the use of computer systems and

similar means as may be devised in the future: "(4) Libel. - The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
throu h a coin uter s stern or an other similar means which in a be
devised in the future. " Em hasis and underSCOrin su lied

55

Computer system on the other hand is defined in Section 3 of the Cybercrime Prevention Act as "any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing data. It
covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones xxx. " Practically, computer system covers blogs, Facebook, Twitter and other platforms for social media interaction. However, how are the elements of libel applied in the use of computer systems? For instance, what constitutes publication? Is posting a status or comment on Facebook, considering

that only your friends will see them, considered publication? Does liking, re-tweeting
or sharing someone's blog or post constitute publication?
Petitioners are not taking the position that the crime of libel should be stricken

off the statute books of this jurisdiction. Rather, petitioners challenge Section 4(c)(4) of the Cybercrime Prevention Act since said provision lacks coinprehensible
standards to afford citizens with reasonable minds notice of what conduct should be
avoided.

The fundamental legal principle of voidjor vagueness provides that a statute

can be struck down as uriconstitutional if it lacks sufficient definite ness and

particularity that men of common intelligence must necessarily guess at its meaning
and differ in its application. [Estrada v. Sandiganboyon, 369 SCRA 394 (2001)]

Thus, a statute - or a provision thereof, as in this case - is repugnant to Section I, Article I of the Constitution prtncipally for two (2) reasons: first, the average citizen is
not given notice of what conduct to avoid; second, law enforcement authorities are given unbridled discretion to implement the statute, which lacks sufficient standards and definite ness to begin with. However, it is not only the Constitution's Due Process Clause that is violated by the vagueness of Section 4(c)(4) of the Cybercrime
Prevention Act. The provision's vagueness also has grave and far-reaching

implications on citizens' right to free expression. Written into the statute books, Section 4(c)(4) of the Cybercrime Prevention Act is so vague that it constitutes an effective prior restraint to every citizen, including bloggers and netizens. Indeed, if citizens do not know what illegal or unlawful conduct to avoid, then it is better to refrain from doing andlor saying anything at all, Iest the heavy arm of the State be forthcoming. This is precisely the chilling effect the
vague and sweeping language of Section 4(c)(4) of the Cybercrime Prevention Act

breeds on the people, thereby instilling a regime of prior restraint on freedom of expression, which is most cherished by petitioners. The defect in the Cybercrime Prevention Act cannot be cured by the Implementing Rules and Regulations. In Ople v. Torres, at at, supro, the Honorable
Court struck down Administrative Order No. 308, which mandated an adoption of a

National Computerized Identification Reference System, as uriconstitutional on the grounds, among others, that the issuance lacked reasonable standards to safeguard a person's right to privacy, it is so widely drawn that a minimum standard for a
56

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.

reasonable expectation of privacy cannot be inferred from its provisions and there
are 00 controls to guard against leakage of information. Thus, the Honorable Court
held:

"Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A. 0. No. 308 is

justified by some compelling state interest and that it is narrowly

drawn. A. 0. No. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumental ities and (2) the need to
reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A. 0. No. 308. But what is not arguable is the broadness, the vagueness, the over breadth of A. 0. No. 308 which if implemented will put our people's right to privacy in clear and present danger. The heart of A. 0. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and "computer application designs. "
XXX

In the last few decades, technology has progressed at a

galloping rate. Some science fictions are now science facts. Today,

biometrics is no longer limited to the use of fingerprint to identify

an individual. It is a new science that uses various technologies in

encoding any and all biological characteristics of an individual for

identification. It is noteworthy that A. 0. No. 308 does riot state

what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquet of options available
to the implementors of A. 0. No. 308, the fear that it threatens the right to privacy of our people is not groundless.
A. 0. No. 308 should also raise our antennas for a further

look will show that it does riot state whether encoding of data is

limited to biological information alone for identification purposes.

In fact, the Solicitor General claims that the adoption of the

Identification Reference System will contribute to the "generation of population data for development planning. " This is an admission that

57

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,

the PRN will not be used solely for identification but for the generation
of other data with remote relation to the avowed purposes of A. 0. No. 308. Clearly, the indefinite ness of A. 0. No. 308 can give the
government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN. The potential for misuse of the data to be gathered under A. 0. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic

services and security. His transactions with the government agency will necessarily be recorded- whether it be in the computer or in the
documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of

assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist.

We can even grant, arguendo, that the computer data file will

be limited to the name, address and other basic personal information

about the individual. Even that hospitable assumption will not save

A. 0. No. 308 from constitutional infirmity for again said order does riot tell us in clear and categorical terms how these information gathered shall be handled. It does riot provide who shall control
and access the data, under what circumstances and for what

purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or
penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system.

It is plain and we hold that A. 0. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A. 0. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous persons to
58

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,

access confidential information and circumvent the right against selfgovernment authorities and evade the right against unreasonable
searches and seizures. The possibilities of abuse and misuse of

inchmination; it may pave the way for "fishing expeditions" by

the PRN, biometrics and computer technology are accentuated

when we consider that the individual lacks control over what can

be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of
Rights seeks to prevent.

The ability of a sophisticated data center to generate a

comprehensive cradle-to-grave dossier on an individual and transmit

it over a national network is one of the most graphic threats of the

computer revolution. The computer is capable of producing a

comprehensive dossier on individuals out of information given at

different times and for varied purposes. It can continue adding to the
stored data and keeping the information up to date. Retrieval of stored

data is simple. When information of a privileged character finds its way into the computer, it can be extracted together with other data on the subject. Once extracted, the information is putty in the hands of any
person. The end of privacy begins. Though A. 0. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be true to its role as the ultimate guardian of the people's liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that
could consume them.

We reject the argument of the Solicitor General that an

individual has a reasonable expectation of privacy with regard to

the National ID and the use of biometrics technology as it stands

on quicksand. The reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. The factual
circumstances of the case determines the reasonableness of the

expectation. However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create

or diminish this expectation. The use of biometrics and computer

technology in A. 0. No. 308 does not assure the individual of a

reasonable expectation of privacy. As technology advances, the level of reasonably expected privacy decreases. The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. The security of the
59

computer data file depends not only on the physical in accessibility of the file but also on the advances in hardware and software computer
technology. A. 0. No. 308 is so widely drawn that a minimum

standard for a reasonable expectation of privacy, regardless of

technology used, cannot be inferred from its provisions. The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the policy of the law or order. On its face, A. 0. No. 308 gives the IACC
virtually unfettered discretion to determine the metes and bounds of

the ID System. [Emphasis in the original]

Moreover, it is an elementary principle in constitutional and administrative law

that an executive issuance cannot expand, modify or change the terms of a statute. Rules and regulations are limited and circumscribed by the provisions of its law it is implementing. An administrative agency has 00 power to amend or unduly expand the law it implements through the mere issuances of rules and regulations. tTeXon v. Members of the Board o1 Administrators, 33 SCRA 585 (1970)l Administrative
agencies are only allowed to "fill up the details" of an already complete statute. Clearly, the Cybercrime Preventive Act suffers from fatal infirmities that cannot be salvaged by implementing rules and regulations.
In this regard, Section 4(c)(4), in relation to Section 1.2, of the Cybercrime

Prevention Act violates citizens' right to privacy in asmuch as personal and private communications and correspondence can be looked into by the law enforcement
authorities even in the absence of a lawful order or even when the exigencies of

public safety or order do riot warrant the same. Moreover, as held in Ople v. Torres, at at, supro, the Honorable Court ruled that since the right to privacy is a fundamental right guaranteed by the Constitution, it is the burden of the State to show that government action is justified by some compelling state interest and that it is narrowly drawn. Moreover, incursions into the right to privacy must be accompanied by proper safeguards and well-defined standards to prevent
uriconstitutional invasions, none of which exist in the Assailed Provisions.

To make matters worse, with all due respect, Section 5 of the Cybercrime
Prevention Act provides: "Section 5. Other Offenses. - The following acts shall also
constitute an offense:

(a).

Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be
held liable.

60

(b).

Attempt in the Commission of Cybercrime. - Any person who willfully attempts to commit any of the offenses
enumerated in this Act shall be held liable. "

How is aiding and abetting committed? Is sharing or reposting an alleged libelous blog a violation of the foregoing? Is lending your computer to a blogger who
posted an alleged libelous article abetting? Clearly, the questions to the above cannot be answered with certainty, or at the very least, by merely reading the provisions thereof. Even a person who is skilled and well versed in computer technology will find it difficult to be apprised of what constitutes a violation of the foregoing provisions. Indeed, vagueness of the Assailed Provisions of the
Cybercrime Prevention Act renders the same void.

A statute or act suffers from the defect of vagueness when it lacks coinprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of State muscle. tRomualdez v. Sandiganboy, In, 435 SCRA 371 (2004); People of the Philippines v. Namri0, 1.65 SCRA 186 (1988)I This was reiterated by the Honorable Court in People of the Philippines v. Sinn, 600 SCRA 476 (2009):
"xxx in exercising its power to declare what acts constitute a crime, the to is Iature must inform the citizen with re sonable recision what acts it i tends to rohibit so that he may have a certain
understandable rule of conduct and know what acts it is his dut to

avoid. This requirement has come to be known as the void-for

vagueness doctrine which states that "a statute which either forbids or

requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law".
[Emphasis and underscoring supplied]

Respondents, in their Consolidated Comment, POSit that the terms aiding and abetting are clear and need 00 express definition. Citing jurisprudence, respondents
argue that a criminal statute does not become void just because of its reference to

general terms and there is 00 constitutional or statutory duty on the part of the lawmakers to define every word in a law, as long as the intent can be gathered from
the entire act.

23

Page 90, Consolidated Comment.

61

. .

Respondents totally miss the point. The complexity of the digital world or

cyberspace iridispensably dictates a reasonable certainty of the terms aiding and abetting in connection with the enumerated offenses. Otherwise, unwitting bloggers
and netizens will be at the mercy of law enforcement authorities. Worse, Section 5 of the Cybercrime Prevention Act is bereft of limits, descriptions or standards that
would guide netizens as to what are prohibited acts. Moreover, respondent argues that the test in determining the ambiguity of a statute is whether the words convey a sufficiently definite warning with respect to the proSCribed conduct based on common understanding and practice. " What respondents fail to realize is the fact that the above-cited test presupposes an existing common understanding and practice. The digital world or cyberspace, in relation to cybercrime, is a novel concept and an unexplored frontier. There is 00 common understanding and practice as to what acts are socially deplorable and therefore merit suppression. As stated above, does sharing a link, re-posting an article, or liking a status, the contents of which are subsequently adjudged as a cybercrime, constitute aiding or abetting? Section 5 of the Cybercrime Prevention Act offers 00 answers to these questions. Indeed, the enactment of the Cybercrime Prevention Act was supposed to be step towards understanding and establishing
such norms. Unfortunately, the law instead of clarifying matters further muddles the

situation at the expense of innocent bloggers and netizens.

In an effort to defend the validity of Section 5, respondents refer to existing

penal statutes that punish aiding and abetting of criminal acts. " The comparison is
misplaced, however, precisely because the laws cited either have common understanding and practice as to what acts are prohibited or there is a reasonable certainty as to what acts are proSCribed. Take for example Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law, which penalizes aiding pirates or highway robberslbrigands or abetting piracy or highway robberyIbrigandage and cites instances which can be considered as aiding or
abetting, to wit: "Section 4. Aiding pirates or highway robberslbrigands or

abetting piracy or highway robberyIbrigandage. Any person who knowingIy and in any manner aids or protects pirates or highway robberslbrigands, such as giving them information about the movement of police or other peaee officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by
the Revised Penal Code.
24
25

Page 90, Consolidated Comment. Page 91, Consolidoted Comment.

62

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It shall be presumed that any person who does any of the acts

provided in this Section has performed knowingIy, unless the contrary

is proven. " tEmphasis suppliedI

Unlike the above-quoted statute, Section 5 of the Cybercrime Prevention Act

does not even provide a clue as to what acts are prohibited. Considering that the
robbery and piracy, it is beyond cavil that the Cybercrime Prevention Act should clarify and distinctly express what acts are impermissible.
To be sure, an examination of the Cybercrime Prevention Act reveals an

dynamics of the digital world or cyberspace are much more complex than highway

absolute lack of definition of the terms "aiding or abetting" as written in Section 5(a)
thereof. Section 5(b) suffers from the same infirmity as the Cybercrime Law fails to define what constitutes an "attempt" to commit a cybercrime. Therefore, the lack of
concrete definitions deprives an individual of a reasonable standard of conduct that

would serve as a guide to avoid criminal liability. Simply, a person is left guessing as
to whether his actions may constitute a violation of Section 5. The following eXchange during the Oral Arguments on 15 January 201.3 draw out the legitimate concerns about the vagueness, over breadth and in applicability of Section 5 of the Cybercrime Prevention Act:
"JUSTICE ABAD:

Willful aiding or abetting so it cannot be innocent aiding or abetting in a

sense if it's a. .... there's need to be a criminal intent?

ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE ABAD:

So, he is aware that a crime is being committed or will be committed and he aids or abets it. I wonder if you in the Internet if you received, let us say a libelous material or a libelous blog and it enters your account, and it says there, Sometimes it says you like, it says you like that comment, and you say, you say, you liked it. Well, if you say you like it, it's just an expression of your feeling or opinion regarding that. Although, sometimes they tell me that it's not just you like it but if you
say you liked it, it is repeated. You know knowingIy that it will go into your followers or to those who are connected to you it will appear there

also. In a sense you are passing it already. Now, if you hear false

rumor for example, a false, a defamatory statement, you hear it and

63

then you did not originate it, you did not publish it in the sense

originally but you passed it on, you whispered it to your. .... to

somebody saying, do you know that this fellow is like this and like this?

So in a sense you have adopted it and you have yourself published it.
Do you agree with that?
ATTY. MATIBAG:

Well, if you made it possible for a third person to know it, Your Honor,
it is a form of publication.
JUSTICE ABAD:

Yes, yes, so that if it appears in your computer, in your address, I don't

know what you called it but. .... I have a Facebook also if it appears in
my screen and I say I like it, then probably it will appear in my other
friends and in a sense I have published it.
ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE ABAD:

Am I not as guilty as the person who originated it? Like the whisper that is passed on from one person to another?
ATTY. MATIBAG:

Your Honor, that is why this lack of sufficient specific standards under this Section 5 (a) might convince a prosecutor to prosecute
anyone in those circumstances.
JUSTICE ABAD:

Well, libel, libel is a law provides a sufficient standard as I was arguing although you are telling me that. ...
ATTY. MATIBAG:

In aiding or abetting, Your Honor, or even in willful attempt. ..

JUSTICE ABAD:

Many had been convicted of libel because the standard, there's never been except one case you said that was raised where the question of standard for determining whether a crime has been committed, that

64

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*

that person is forewarned concerning what wrong he is going to

commit then he has knowledge of it. He knows that this is a wrong, he knows that this is a malicious statement being passed on to him and then he is going to pass it to another. He I does not assume
responsibility for it?
ATTY. MATIBAG:

Yes, Your Honor, but, but, but, but. ....

JUSTICE ABAD:

So that is abetting or what do you call that the other?

ATTY. MATIBAG:

Aiding, Your Honor.

JUSTICE ABAD:

So he may be responsible. He is liable for that.

ATTY. MATIBAG:

Yes, Your Honor, but there are many instances when even the pure acts of protected speech would be considered as aiding or abetting because in the example earlier of John and Bert, Bert merely suggested knowing, knowing the intent.
JUSTICE ABAD: There was 00 crime committed there because he did not write the article.

JUSTICE ABAD:

Yeah, that's why it's an attempt, Your Honor. 5 (b) punishes attempt.
JUSTICE ABAD:

No, he did not write it at all. What do you mean attempt? Well. ...
ATTY. MATIBAG:

Well, there may be aiding or abetting in an attempted stage because in the concept of an aiding or abetting it is considered as. ....

65

JUSTICE ABAD:

Well, the problem I don't know, I don't know so much on how you can, what's there, what was the legislative explanation, the explanation of the legislators concerning the meaning of attempt there? It was just, I
thought of it, I am going to write it but I did not write it. Is that an
attempt?
ATTY. MATIBAG:

Well, if we follow. ....

JUSTICE ABAD:

..... perform some of. ....

ATTY. MATIBAG:

Commences the execution, Your Honor.

JUSTICE ABAD:

The criminal act or something, there's a criminal intent in the first

place. He wanted to join the Palanca contest. ...
ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE ABAD: Its not criminal intent.

ATTY. MATIBAG:

Yeah, but the problem is. ...

JUSTICE ABAD:

And then he did not even write it.

ATTY. MATIBAG:

Yeah. .. But the problem with the law, Your Honor, is covers also the unlawful and prohibited acts of the Anti-Child Pornography Act, And in Anti-Child Pornography Act, the mere creation of even a story
66

b
.

depicting even a real or simulated sexual activity of a child or even a

person regardless of age as long as it is portrayed as a child already constitutes child pornography. And if we follow Section 5 (b) regarding
attempt, then John commences the execution of the offense but he

does riot perform all the acts of execution by reason of some cause or
accident other the. ....

JUSTICE ABAD:

I think he gave a general plot of what he wants to write but nothing about it is in itself what you called this lecherous or lascivious, there's nothing there. Just a general plot of a 1.6-year old pretending an eighteen, claimed to be sixteen selling sex, whatever.
ATTY. MATIBAG:

That's only for purposes of showing his intention, Your Honor. Because when you are talking about sexual abuse.
JUSTICE ABAD:

No, what I'm saying is that there is 00 crime committed yet under that circumstance, under your example,
ATTY. MATIBAG:

Well, if we follow Section 5 (a) and (b), Your Honor, there would be. Because that's how the prosecution would interpret aiding or abetting and attempt. In the respondents' comment, they simply
follow the standard definition of attempt, according to Article 6 of

the Revised Penal Code. And they simply want to follow the
jurisprudence regarding aiding or abetting. If we strictly follow those things, that would be the scenario, Your Honor, that even

acts that are pure speech would be a subject of prosecution. Because of lack of standards, Your Honor, instead of this kind of provision, Your Honor, the Legislature should have first stated examples of Acts of aiding or abetting or possibly examples of acts of attempt. And also possibly to state or enumerate exclusions to those instances, to those prohibited instances. Because, Your Honors, in the Cybercrime offenses, there are Cybercrime offenses there that involved language, okay, like the unlawful commercial transmissions or in spains. So, how could there be an attempt that is punish able under the Cybercrime law when it only involves language? When the guilty mind would only arise after the consummation? So, the only way for them to prosecute attempted stage in aiding or abetting in those instances would be to punish acts that would involve protected
speech.

67

.
.

JUSTICE ABAD:

Okay. Thank you. "" IEmphasis suppliedl

The vagueness and over breadth of Section 5 of the Cybercrime Prevention Act is shown by the incongruence between the effect of applying said provision to cybercrimes, on the one hand, and crimes under the Revised Penal Code, on the
other hand:

UusTicE PERALTA:

I'm asking you this because if this one paragraph (a) is a portion that there conspiracy principle and paragraph (b) is attempt on the
commission of Cybercrime, then there will be 00 more distinction

because paragraph 5 under Section 8 as to the penalty there is 00 distinction as to the penalty under paragraph (a) and paragraph (b)?
ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE PERALTA:

Both acts are punished with one degree lower to that the penalty provided for in any of the offenses under this Code.
ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE PERALTA:

That's why I'm asking you. Okay. Now, you also said that this violates
the overbreadth doctrine

ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE PERALTA:

Can you tell us what's the violation for that overbreadth doctrine?

26

Pages 155-160, TSN of the Oral Arguments, 15 January 2013

68

. ,

ATTY. MATIBAG:

In my example Your Honor, it does not only, it does not only want to
prosecute and punish unlawful conduct or unlawful speech. It also

punishes protected speech because it does not make any distinction at all. Because in the preparatory stages of this Cybercrime

offenses, sometimes you cannot really tell intention, specially

when, like in unlawful commercial transactions Your Honor, how can a person be charged with attempted or aiding or abetting in unlawful commercial transactions when it only involves language

advertising, when it is supposed to punish only the

consummated stage, Your Honor.
JUSTICE PERALTA: Yeah.

ATTY. MATIBAG:

And there may be other instances and you are only typing on the
computer, you are not yet finished.
JUSTICE PERALTA:

And there's no, there's no actual, there's no definition of attempt

under the law.

ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE PERALTA:

So all, so all the acts under all the prohibited acts under the law may be in their attempted stage.
ATTY. MATIBAG:

Yes, Your Honor.

JUSTICE PERALTA:

So every time that there is already an attempted stage, it becomes consummated. Because already punishable.
ATTY. MATIBAG:

It's already punish able, Your Honor. It consummated attempted

stage.
69

JUSTICE PERALTA:

Yeah. Thank you. "" [Emphasis supplied]

Moreover, in this connection, even a casual reading of Section 4(c)(4) of the

Cybercrime Prevention Act clearly shows its vagueness and deficiencies in defining
the crime of Cyber Libel. Worse, the law fails to mention how the person committing Cyber Libel can be identified. Article 360 of the Revised Penal Code provides who
are the persons responsible for libel: "Art. 360. Persons responsible. - Any person who shall publish,

exhibit, or cause the publication or exhibition of any defamation in

writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein
to the same extent as if he were the author thereof. xxx"

Nevertheless, the same definition cannot be simply adopted and applied to the cyber world for the obvious reason that people can simply use fake names or
access computers in common libraries or computer shops. Simply tracing the IP

address and imputing the crime to the owner of the computer system used will not suffice. It is elementary that criminal statutes are to be strictly construed. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so. tUnited States v. Ab, Id
Suntos, 36 Phil. 243 (1917)l

With all due respect, although the State has the power to regulate conduct harmful to the public welfare and order, it cannot do so at the expense of the people's constitutionalI^guaranteed rights. The overbreadth doctrine prohibits the state from imposing regulations that sweep unnecessarily broadly into protected
freedoms. In Southern Hemisphere v. Anti-Terrorism Council, et. o1, 632 SCRA 146 (2010), the Honorable Court explained the overbreadth doctrine in relation to the vagueness doctrine thus: "A statute or act suffers from the defect of vagueness

when it lacks cornprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the
27

Pages 1.61 and 1.62, TSN of the Oral Arguments, 15 January 2013.

70

*
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parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutional Iy subject to state regulations may riot be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.

As distinguished from the vagueness doctrine, the over breadth

doctrine assumes that individuals will understand what a statute

prohibits and will accordingly refrain from that behavior, even though
some of it is protected. " [Emphasis supplied]

In Southern Hemisphere v. Anti-Terrorism Council, et. o1, supro, the Honorable Court refrained from applying the over breadth doctrine on the premise that the law in question seeks to penalize conduct and not speech. The same cannot be said in the case of the Cybercrime Prevention Act, particularly Section 5 in
relation to Section 4(c) (4), which explicitly regulates speech. Section 4(c)(4) penalizes the unlawful or prohibited acts of libel in Article 355

of the Revised Penal Code, committed through a computer system or any other
similar means by which may be devised in the future. On the other hand, Section 5(a) punishes any person who willfully abets or aids in the commission of any of the

offenses enumerated, including libel. Taking these two provisions together, any
person who aids or abets in the commission of cyber libel is criminally liable. This takes us back to the proverbial question: What constitutes aiding or abetting? Or more precisely, what constitutes aiding and abetting cyber libel? Again, the law does not provide any answer. This patent lack of a definition or standard
creates a chilling effect on bloggers and netizens. With a sword of Darnocles

hanging over their heads, bloggers and netizens are left with 00 choice but to tread carefully with their posts and articles on the Internet. What was once a free market of ideas now becomes a restricted space where every utterance may be suspect to government regulation. Surely, the right of every citizen, whether a blogger, netizen, or an ordinary person to freely express their opinions weighs more than any vague and overbroad government regulation. Now, with respect to Section 7 of the Cybercrime Prevention Act, the rule against double jeopardy is provided in Article 1/1, Section 21 of the 1,987 Constitution,
thus:

71
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*
.

"Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act. "

For double jeopardy to exist, the following elements must concur: (1) a first

jeopardy must have attached prior to the second; (2) the first jeopardy must have
terminated; and (3) the second jeopardy must be for the same offense as the first.

Parenthetical Iy, legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (0) after arraignment, (d) a valid plea having been entered; and (e)

the case was dismissed or otherwise terminated without the express consent of the
accused. tCuison v. Court of Appeals, 289 SCRA 159 (1998); Guerrero v. Court

o1 Appeals, 257 SCRA 703 (1996); People of the Philippines v. Yingon, 58 Phil.
851 (1933)l

In this light, Sections 6 and 7 of the Cybercrime Prevention Act provides:

"Section. 6. All crlmes 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 (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. " IEmphasis and underscoring suppliedl
Section 7. Liability under Other Laws. - A prosecution under

this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or other special
laws. "

Under this regime, a crime as defined by the Revised Penal Code can be prosecuted separately under Section 6 of the Cybercrime Prevention Act. Moreover,

a prosecution under the Cybercrime Prevention Act is without prejudice to any liability for violation of any provision of the Revised Penal Code. Thus, what is being punished under Section 7, in relation to Section 6, of the Cybercrime Prevention Act is the exact act punish able under the Revised Penal Code. In fact, the Cybercrime Prevention Act merely adopts and incorporates all elements of the felonies under the Revised Penal Code and other special laws and sanctions, encourages even, a separate and distinct prosecution under the Cybercrime Prevention Act for the same offense. This is most certainly violative of
the Constitution and should be struck down without hesitation.

72

In People of the Philippines v. PnPa, 79 SCRA 81 (1977), the Honorable

Court had occasion to highlight the significance of the proSCription against double jeopardy. The Honorable Court held that such prohibition is "a sacred principle of criminal jurisprudence, and is a part of the universal law of reason, justice, and
conscience. It is founded on the maxim non bis in Idem (not twice for the same) or
nemo debet bis vexori pro uria at eodem eauso (no one ought to be twice vexed for
one and the same cause"

Although case law has regarded double jeopardy to be a matter of defense, a law that blatantly permits a person to be punished twice for the same act, should be

struck down as uriconstitutional. A law that sanctions an impending jeopardy, is in

itself, repugnant to the fundamentals of due process. " It is, therefore, submitted that
courts should not wait for double jeopardy to be raised as a defense before the
Cybercrime Prevention Act can be struck down as uriconstitutional. The fact that the

wording of the law clearly permits the possibility of double jeopardy, gives
prosecutors and law enforcement authorities unwarranted discretion to select those

whom they believe should be prosecuted for a graver offense. To rule otherwise will render the purpose behind its prohibition pointless.
Under Section 7 of the Cybercrime Prevention Act, an offense punish able under the same Act may be prosecuted separately from a felony punish able under the Revised Penal Code and other special laws. This is explicit from the wording of
the law such that it rovides that "a rosecution under this Act shall be without

PI:g^ to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. " Hence, the commission of an offense through

cyberspace, as provided under the Cybercrime Prevention Act, shall be considered not merely as a qualifying circumstance, but treated as an entirely new crime.
It must be emphasized that the commission of an offense in cyberspace, merely provides the means upon which the crime may be committed. The use of the Internet or any information and communications technology ("ICT") is not therefore an additional element to the commission of the crime. For instance, Cyber Libel is still the very same libel punished when committed through the use of traditional media. In fact, libel committed through the use of the internet is already punished
under Article 355 of the Revised Penal Code under "similar means", to wit:

"Art. 355. Libel means by writings or similar means. - A libel

committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or an similar means shall be unished b rision correccional in its

minimum and medium periods or a fine ranging from 200 to 6,000

pesos, or both, in addition to the civil action which may be brought by the offended party. " (Emphasis and underscoring supplied)
28

Buylosis v. Chavez, 202 SCRA 405 (1991) (Sariniento, J. , dissenting)

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. .

There is therefore 00 justification for a separate prosecution for the exact same act, especially since the Cybercrime Prevention Act merely incorporates the

same elements under the Revised Penal Code and other special laws. In fact,
respondents previously admitted in their Consolidated Comment that Section 6 of the

Cybercrime Prevention Act indeed operates as a qualifying circumstance" and that

there is 00 new crime involved considering that the Cybercrime Prevention Act

merely provided another means to commit the same crimes that are already
punished by the Revised Penal Code and other special penal laws.
Although there are instances where prosecution under the Revised Penal Code and under special laws may be done separately, the rationale behind its distinction should be taken in consideration. For instance, it is well settled that an accused may be prosecuted separately for Estafa under the Revised Penal Code and for a violation of the Batas Painbansa Bilang 22, otherwise known as the Bouncing Checks Law. This, however, should not be used as justification for the double prosecution under the Cybercrime Prevention Act. In the case of Ado v. Virala, 172 SCRA 336 (1989), the Honorable Court considered the distinction
between these two crimes:

"A scrutiny of the two laws involved shows that the two offenses punished therein are different and distinct from each other. In the

crime of Estafa by postdating or issuing bad checkls under the Revised Penal Code, deceit and damage are two essential elements of the offense and have to be established with satisfactory proof to warrant convictions (People v. Grospe, 1.57 SCRA 1.54) with the further requisite that deceit in causing the defraudation must be prior to or simultaneous with the commission of the fraud. For violation of the Bouncing Checks Law under B. P. 22, on the other hand, . these elements are riot necessary, the essential element
being knowledge on the part of the maker or drawer of the check of the

insufficiency of his funds. The grayamen of the offense is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment and not the non-payment of an obligation. (People v. Grospe, Ibid, citing Lozano v. Martinez, 1.46 SCRA 323; Dingle v. Intermediate Appellate Court, 1.48 SCRA 595. )
Distinction between estafa and BP 22 is further found in their

nature. Whereas the offense under article 315, par. 2(d) of the Revised Penal Code is a matum in se requiring proof of criminal intent on the part of the offender as an essential ingredient focusing mainly on the damage caused to the property rights of the victim, the
crime under B. P. 22 makes the mere act of issuing a worthless
29

Page 20, Consolidated Comment.

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.

check maium prohibitum wherein criminal intent need not be proved

because it is presumed and considered a violation thereof as one

committed against publicinterest. "IEmphasis suppliedl Hence, while the distinction between BP 22 and Estafa is clearly defined, the same may not be said in favor of the Cybercrime Prevention Act. First, the elements under the Cybercrime Prevention Act merely incorporates the elements under the Revised Penal Code and other special laws. Second, while prosecution for BP 22 and Estafa is initiated under the Revised Penal Code and under a special penal law, the Cybercrime Prevention Act allows prosecution under both special laws.
Clearly, although the Congress has the power to make laws and define the

crimes punished therein, it may not pass a law that is repugnant to the fundamental principles of the Constitution and the rights protected thereby. It is the duty of both the Legislature and the Honorable Court to up hold the principles of the fundamental
charter such that when faced with a law that violates the same, the Honorable Court should not hesitate to render it uriconstitutional. tPerulta v. COMELEC, 82 SCRA 30
(1978)l Lastly, as previously stated, it should be pointed out that deficiencies in the

Cybercrime Prevention Act cannot be cured in its Implementing Rules and Regulations. As early as 1,970, in Teoxon v. Members of the Board o1 Administrators, supro, the Honorable Court held that the power to promulgate rules
in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. Its terms must be followed for an administrative agency cannot amend an Act of Congress. tUnited BF Homeowners v. BF Homes, 31.0 SCRA 304

(1999)l Clearly, .the vagueness of the above-mentioned provisions cannot be cured by its implementing rules and regulations without duly expanding the law. Thus, the
Assailed Provisions are fatal beyond resuscitation. The other provisions of the Cybercrime Prevention Act that flow from the Assailed Provisions likewise suffer the same fatal flaw, including the provisions that authorize the disbursement of public funds for the implementation of the law.
Vlll.

Section 6 Of The Cybercrime Prevention Act Is Null And Void For Being Uriconstitutional Considering That It Is Violative Of The Equal
Protection Clause Under Section I, Article in
Of The Constitution.

Section 6 of the Cybercrime Prevention Act provides:

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"Section. 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 (1) degree higher than that

provided for by the Revised Penal Code, as amended, and special

laws, as the case may be. "

The import of the foregoing provision is that all the crimes punish able under provisions of the Revised Penal Code, such as libel, if committed through the use of
a computer system or other similar means, the penalty to be imposed shall be one

(1) degree higher. Otherwise stated, by committing the same crime, but using a different means specifically, computer systems, the penalty is harsher.
At the onset, the foregoing provision is again susceptible to various

interpretations. For instance, if ICT is used in committing only one element of the
crime, will the foregoing provision find application? Does the mere use of ICT automatically increase the penalty regardless of intent or reasonable connection to
the consummation of the alleged crime?

It should be emphasized in this regard that Section I, Article 111 of the

Constitution guarantees the equal protection of the laws: "Section I. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. " In Philippine Amusements und Gaining Corporation v. Bureau of Internal Revenue, 645 SCRA 338 (2011), the Honorable Court explained: "Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that 00 person or class of persons shall be denied the same protection of laws which is
enjoyed by other persons or other classes in like circumstances. The

"equal protection of the laws is a pledge of the protection of equal laws. " It limits governmental discrimination. The equal protection clause extends to artificial persons but only irisofar as their property is
concerned. "

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supro, the Honorable Court held:

Nevertheless, the foregoing is without exception. In City of Manila v. Loguio,

"Legislative bodies are allowed to classify the subjects of

legislation. If the classification is reasonable, the law may operate only

on some and not all of the people without violating the equal protection

clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: I) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions
only. 4) It must apply equally to all members of the class. "

Clearly, there can be a valid classification provided that the following

requisites are present: (1) It must be based on substantial distinctions; (2) It must be germane to the purposes of the law; (3) It must not be limited to existing conditions only; and (4) It must apply equally to all members of the class. IQuinto, at o1. v.
COMELEC, 606 SCRA 258 (2009)l

However, the instant case could not even pass the first requisite of having a
substantial distinction. The standard is satisfied if the classification or distinction is

based on a reasonable foundation or rational basis and is not palpably arbitrary. Icentral Bank Employees' Association v. Bangko Sentral rig Pinpinas, 446
SCRA 299 (2004)l Crimes committed by the use of ICT cannot be reasonably

treated as more grave or heinous as to sweepingIy increase the penalty by one degree higher than if committed without it. Indeed, the provision arbitrarily discriminates between two crimes that have exactly the same elements. At any rate,
substantive due process requires that the law itself, not merely the procedures by

which the law would be enforced, is fair, reasonable, and just. tAssociated
Communications und Wireless Services, Ltd. v. Dumla0, 392 SCRA 269 (2002)l

Thus, the unreasonableness of the provision violates substantive due process and
should be rendered void.

To reiterate, Section 6 of the Cybercrime Prevention Act does not rest on

substantial distinction. There is 00 difference between crimes committed with or

without the use of ICT. Crimes committed with ICT cannot be reasonably treated as more grave or heinous as to sweepingIy increase the penalty by one degree higher than if committed without it. The provision arbitrarily discriminates between crimes that have exactly the same elements. It must be emphasized that ICT crimes are not a special class. It is just part of a bigger class that is the class of crimes in general.

Respondents argue that Section 6 is effectiveIy a qualifying circumstance, "

thereby justifying the imposition of a higher penalty. To bolster their position, respondents argue that "cybercrimes" are not bound by time and geography and are
30

Page 96, Consolidated Comment.

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- whether committed with the use of ICT or committed by ordinary means - has the same elements. The mere fact that a crime was committed using ICT does not justify
the imposition of a higher penalty. The use of ICT is just a modality or a means of
committing the crime. It does not differentiate it from other crimes under the Revised Internet's scope of reach is riot really as extensive as other forms of media and it is not always as accessible as respondents would like the Honorable Court to believe.

easily committed due to its accessibility. " Respondents, however, forget that a crime

Penal Code or other special laws; neither does it make the crime more perverse. The

Hence, respondents' arguments miserably fail to satisfy even just the first
requirement of substantial distinction.

Furthermore, the aforementioned provision should also be struck down on the

ground of void for vagueness. Section 6 of the Cybercrime Prevention Act uses the term information and communications technologies but nowhere is the word defined in the Definition of Terms under Section 3 thereof or any part of the law for that matter. Is it referring to a computer or maybe computer systems? Does it include cellular phones and facsimile? The answer, unfortunately, is not found in the law. Nullo poeno sine lege. There is 00 crime when there is 00 law punishing it. Or in the case of Cybercrime Prevention Act, there is 00 crime when the law does not clearly
define the crime.

Respondents, however, argue that the term information und communications technologies is defined elsewhere in Executive Order No. 269 and Republic Act No.

8792, otherwise known as the Electronic Commerce Act of 2000. " These definitions,
however, are nowhere to be found in the law. Had the Congress intended to use these definitions, it should have at least made the appropriate references. If the Congress intended to use the definitions provided in RA 8792, as respondents advance, then the legislators should not have defined the terms computer and service provider in the Cybercrime Prevention Act for these two words are also
defined in RA 8792.

In addition, an all-sweeping application of the penal provision creates further ambiguities and confusion in its application. First, what is one degree higher in special penal laws? Second, what is the Cybercrime Prevention Act's effect on crimes already including the use of ICT or computer system as one of its elements? Although it is easy enough to define what one degree higher is for crimes
defined in the Revised Penal Code, the same cannot be said for crimes defined

under special penal laws where the nomenclature of the Revised Penal Code is not

used. The penalty of one degree higher cannot be determined with particularity jest
we leave its determination to a magistrate who may arbitrarily choose a penalty

within the confines of the given range, or a penalty higher than the maximum. Taking for example Republic Act No. 91.65, Comprehensive Dangerous Drugs Act of 2002,
Section 5(2) of which provides:
at 32

Pagei. 03, Consolidated Comment. Page 97, Consolidated Comment.

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"Section 5. Sole, Trading, Administration, Dispensation,

Delivery, Distribution and Transportation of Dangerous Drugs ond/or
Controlled Precursors and Essential Chemicals. - xxx

The penalty of imprisonment ranging from twelve (12)

years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (PIO0,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport
any controlled precursor and essential chemical, or shall act as a

broker in such transactions. [Emphasis supplied] A drug dealer who sells cocaine, a prohibited substance, through the Internet would then be liable under Section 6 of the Cybercrime Prevention Act, and, according to said section, his penalty is one degree higher than the range of twelve (12) years and one (1) day to twenty (20) years. What then is the one-degree-higher penalty of that range? Is it upwards of twenty (20) years and one (1) day, or only a maximum of twenty (20) years? There lies the difficulty in the application of the
penalty envisioned by Section 6 of the Cybercrime Prevention Act. The proper penalty cannot be determined and imposed properly. The following eXchange during the Oral Arguments on 15 January 201.3
apropos:

"JUSTICE PERALTA:

Did I get you correctly that there's a, your observation on the increase of penalty by one degree may riot be applicable in special laws?
CONG. GOLMENARES:

Yes, Your Honor please, because I find it difficult to comprehend how

a special law which says that an offense is, penalized by three years to
say thirteen years (13) years, for example, can be raised by one degree.
JUSTICE PERALTA:

You are saying that only the penalties under the Revised Penal Code are graduated.

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CONG. coLMENAREs:

No, Your Honor, there are some special laws that use the scale of
penalties,
JUSTICE PERALTA:

The penalties on the Revised Penal Code are graduated.

CONG. CoLMENARES:

Yes, Your Honor.

JUSTICE PERALTA:

So there could be one degree lower, there could be one degree

higher.
CONG. coLMENAREs:

Yes, Your Honor.

JUSTICE PERALTA:

Special Laws if they provide penalties under the Revised Penal Code,
there's 00 problem.
CONG. GOLMENARES:

Yes, Your Honor.

JUSTICE PERALTA:

You will also apply the provisions on the Revised Penal Code because the special law adopts the nomenclature of penalties under the
Revised Penal Code.

CONG. coLMENAREs:

Yes, Your Honor.

JUSTICE PERALTA:

The problem is, if the special law does not adopt the penalties under the Revised Penal Code then you cannot probably graduate the

penalties like for example, the penalty of six (6) years and one day to fifteen (15) years, what would be the penalty higher than twelve (12)

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years to one (1) day to fifteen (15) years, there is none. But under the law it says, one degree higher punish able under the Revised Penal
Code or special penal laws.
CONG. CoLMENAREs:

Yes, you're correct, Your Honor.

JUSTICE PERALTA:

So, did I get you correctly?

CONG. coLMENAREs:

Yes, Your Honor. "" IEmphasis suppliedl

An ambiguity also arises when a penal law already includes the use of computer system as an element. RA 8792, for example, penalizes the act of hacking
a computer system or server, thus:

"Section 33. Penalties. ~ The following acts shall be penalized by fine andlor imprisonment, as follows:
(a)

Hacking or crackling with refers to unauthorized access into or interference in a computer

systemiserver or information and communication

system; or any access in order to corrupt, alter, steal, or destroy using a computer or other
similar information and communication devices,

without the knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a
minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum coinmensurate to the damage incurred and a mandatory

imprisonment of six (6) months to three (3) years;

XXX. "

Would it mean, therefore, that hacking would automatically involve a violation of two laws simultaneously, the Cybercrime Prevention Act and the Electronic
Commerce Act? Or will the use of a computer system be absorbed by hacking
33

Pages 76-78, TSN of the Oral Arguments, 15 January 201.3.

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thereby negating the existence of a violation under Cybercrime Prevention Act?

These questions however cannot be answered by the present formulation of the Cybercrime Prevention Act. With all due respect, it is so poorly drafted that the
ambiguities it creates amounts to its unconstitutionality. Lastly, on the issue of prescription, it should be noted that the period of

prescription is determined by its penalty. " Hence a law whose penalty cannot be
determined, will also mean that its prescription cannot be determined with
particularity.

Truly, this oppressive law will take us backwards as far as free online

discourse is concerned. Expressing thoughts and ideas through social media is an advancement made possible by modern technology. Verily, information shared on
cyberspace must not be censored, suppressed or taken down based on the foregoing vague provisions of the Cybercrime Preventive Act.
COMPLIANCE

In compliance with the Honorable Court's directive in its Resolution dated 29

January 201.3, petitioners, thus, respectfully offer the following scenarios for the
consideration of the Honorable Court.
I.

A judge uses an office-issued laptop to access Inquirer. net. In so doing, the laptop activates the computer program called Java so that the browser could properly display the website's contents. But unknown to the judge, the Java program in his machine is riot updated and has been taken over by hankers. That laptop has been taken over discreetly and unlawful Iy - by a hacker and could then do the
hacker's bidding. Examples:
. ht venturebeat. coin 201.3 02 15 facebook-hacked . hit WWW. the lobeandmail. coin technol business technolo oracle-u dates-'ava-afterus-issues-hacker warnin article731.9 60

2.

The Clerk of Court and the Court Administrator exchanged PDF

versions of court documents. Along the way, in alware found its way in
34

Section I of Act No. 3326, as amended by Act. No. 3763, provides: "Section I. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) after a year for offences punished only by a fine or by imprisonment for not more than one month, or both; co) after four years for those punished by imprisonment for more than one month, but less than MD years; (0) after eight years for those punished by imprisonment for two years or more, but less than six years; and (d) after twelve years for any other

offence punished by imprisonment for six years or more, except the GIIme of treason, which shall prescribe after twenty years: Provided, however, That all offences against any law or part of law administered by the Bureau of Internal Revenue shall prescribe after five years, Violations penalized by
municipal ordinances shall prescribe alertwo months. "

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the PDF documents. Sensitive information from official computers have been compromised.
Examples:
. ht . hit nunv. cn c. coin I 10050231.8 min. soi-tech

toda .coin s or .xhtml?stor id=00200081. GEAY8full ski =I

3.

What if law enforcement authorities search and seize a hosting

provider that provides webspace to a number of websites? The

physical seizure of the servers will unduly affect many users of the
same servers.

4.

DotPH offers shared hosting to many websites using the .ph domain. What happens if law enforcement orders the seizure, search and examination of the servers when it alleged Iy is running after a hacker?
Is there any safeguard that only a specific user account - and not the

whole server - would be affected? A big majority of websites in the Philippines use shared hosting. To address the above scenarios, the investigation to be conducted by law enforcement authorities will most likely be triggered not by Section 12 of the Cybercrime Prevention Act but by the complaint or report of the affected
personslparties. Assuming that said affected personslparties cooperate in the

investigation, law enforcement authorities will be able to get enough specific information amounting to probable cause as a means to secure a narrowly-drawn
search warrant for the limited purpose of accessing relevant trafficlnon-traffic data.

This is the traditional investigative track that need not be dependent on the effectivity
or implementation of the Cybercrime Prevention Act. However, even without a complainant, it is respectfully submitted that the apparent benefits of retaining and preserving Section 12 of the Cybercrime Prevention Act is outweighed by the fact that, as admitted by the Solicitor General

himself, said provision barely passes the tests of constitutionality. " Moreover, as
held in Ople v. Torres, sunro, the Honorable Court held that the absence of safeguards for the potential misuse of data gathered through government regulation is a potential threat to the Bill of Rights. In this case, the unbridled discretion granted to law enforcement authorities trumps the apparent benefits to law enforcement.
CLOSING

The powers vested by the Congress on law enforcement authorities under the

Cybercrime Prevention Act are an expansion of executive authority crying out for judicial oversight. On a matter of such weight, "trust us" isn't good enough - in fact, it
35

Pages 47 and 48, TSN of the Oral Arguments, 29 January 2013.

83

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.

,\

will never be good enough. It is so far removed from even the faintest shadow of constitutionality that, with all due respect, the Honorable Court has sufficient basis to
expunge the draconian law from this jurisdiction's statute books.

Although petitioners pray for the declaration of unconstitutionality of specific Assailed Provisions of the Cybercrime Prevention Act, the other provisions that flow from the above Assailed Provisions should likewise be struck down by the Honorable Court, including those that grant expansive law enforcement powers to State
authorities the authorize disbursement of public funds for its implementation. Venty, when the parts of a statute are so mutually dependent and connected,
as conditions, considerations, inducements, or compensations for each other, as to

warrant a belief that the Legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the Legislature intended the statute to be carried out as

a whole and would not have enacted it if one part is void, in which case if some parts
are uriconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. lintod v. Secretary of Energy, 281 SCRA 330
(1997)l It is time, therefore, to sound the death knell for a law that will not hesitate to

strike down any online conduct and utterance deemed undesirable by the subjective standards of law enforcement authorities, without the benefit of judicial oversight.
PRAYER

WHEREFORE, it is most respectfully prayed, upon due consideration of the

merits, that

(a) The Assailed Provisions of the Cybercrime Prevention Act be DECLARED NULL AND VOID for being uriconstitutional; and (b) Respondents, andlor anybody acting in their behalf
andlor under their direction, be PERMANENTLY ENJOINED from implementing the Assailed Provisions of the Cybercrime Prevention

Act, including any and all actions undertaken under authority of or

pursuant thereto.

Petitioners likewise pray for other reliefs just and .equitable under the
premises.

84

\.

Makati City for the City of Manila, Metro Manila, 1.1 March 201.3.

KRIST
PTR

JAM S . PURISIMA

67669 - 01/08/13 - Taguig City

I - 01/02/13 - PPLM

Roll of Attorneys No. 52576 MCLE Compliance No. 111-00, .3982 - 05/04/10
Counsel for Petitioners

ANTHONY IAN M. CRUZ, MARCELO R. LANDICHO, BENJAMIN NOEL A. ESPINA, MARCK RONALD C. RIMORIN, JULIUS D. RocAs, OLIVER RICHARD v. ROBiLLo, AARON ERICK A. LOZADA, GERARD ADRIAN P. MAGNAYE, JOSE REGINALD A. RAMOS, MA. ROSARIO T. JUAN, BRENDALYN P. RAMIREZ, MAUREEN A. HERMITANIO, KRISTINE JOY S. REMENTILLA, MARICEL O. GRAY, JULIUS IVAN F. CABIGON, BENRALPH S. YU, RUBEN B. LIGERA JR. , and PEDRO E. RAHON

61F LTA Building, 1.18 Perea Street

Legaspi Village, Makati City
1,229 Metro Manila

Telephone No. : (632)503.5272 Email: toby. punsima@ginail. coin

Copy Furnished

IBy Registered Mall

OFFICE OF THE SOLICITOR GENERAL

^0^,^^^^^^^^ ^^*\^A1T'^^ Q'O

\(I^(I^ ^^ * ^0 ^

Counsel for Respondents

134 Amorsolo Street

Legaspi Village, 1,229 Makati City

ATTY. VICTOR C. AVECILLA

Q^,.^' ^11!) ^^, 0 I

Of^--1' \^^ - ^'^ 0'2.

Counsel for Petitioner [G. R. No. 203299] No. 1.15 Manveles Street Sari Jose Village 3 Barangay Binan, City of Binan, Laguna

RENTA PE CAUSING SABARRE CASTR0 8. ASSOCIATES

Counsel for Petitioners IG. R. No. 2033061

Unit I, 2368 JB Roxas Street corner Leon Guinto Street Malate, Manila
DISIN1 8 DISINI LAW OFFICE

01^^^^ ^!. 0 , 12^c)^

Counsel for Petitioners IG. R. No. 2033351 320 Philippine Social Science Center Commonwealth Avenue, Diliman, Quezon City
GANA ATIENZA AVISADO LAW OFFICES

OA ^' ^.o I .:^0'I

O'^^ ^!0 ^?)0^
D^-^^' ^Q - I'^^ O CD

Counsel for Petitioner [G. R. No. 203359] 31F HPL Building 60 Senator Gil Puyat Avenue, Makati City
ROQUE 8 BUTUYAN LAW OFFICES

Counsel for Petitioners IG. R. No. 2033781

Unit 1904 Antei 2000 Corporate Center

1.21 Valero Street, Salcedo Village, Makati City

ATTY. JAMES MARK TERRY L. RIDON

Counsel for Petitioners [G. R. No. 20339L]

89 K-7-Street

17-1^^\^10 12>0.1---

Kamias, Quezon City

NATIONAL UNION OF PEOPLES' LAWYERS

Counsel for Petitioners tG. R. No. 2034071 31F Erythrina Building No. I Maaralin Street corner Malatag Street, Quezon City
ATTYS. MELENCIO STA. MARIA, ET AL.

DAj" ^ ' 11^0 ^^"'~

mm' mm" """ am"' am""" '""""'""""" ^"f" 0 . ^'50^

20 Rockwell Drive, Rockwell Center, Makati City

Counsel for Petitioners [G. R. No. 203440]

FREE LEGAL ASSISTANCE GROUP tFLAGl

Counsel for Petitioners IG. R. No. 2034531

Unit 408 ACL Suites

721.3th Avenue, Cubao, Quezon City

11^^^I' ^0 , ^,,^^o
D^^^^I' ^^> ^^^^
I>A' ,I, .0 ^ '^ "'

ATTYS. PAUL CORNELIUS T. CASTILLO a RYAN D. ANDRES

Petitioners [G. R. No. 203454] 61F Tuscan Building 1.14 V. A. Rufino Street, Makati City
ATTY. RODEL A. CRUZ

Counsel for Petitioner IG. R. No. 2035011

Philippine Bar Association, Suite 347 Valero Plaza 1.24 Valero Street, Salcedo Village, 1,200 Makati City Counsel for Petitioner IG. R. No. 2035011

SOLIS MEDINA LIMPINGCO AND FAJARDO LAW OFFICES

Unit 11.06Road, Ortigas Center,piPasig City EXchange Centre IQ^,^^j? ^(:) I-':" I';^' East Tower, Philip ne Stock EXchange
D'7"',^' I, ^O , ,,, ,. 11
O, ^* ^" ^, 0 . I 31 I^

ATTY. EDSEL F. TUPAZ

Counsel for Petitioner [G. R. No. 203509]

41 N. Romualdez Street

BF Homes Subdivision, 11.20 Quezon City Counsel for Petitioners IG. R. No. 2035/51 Unit 1,106 Prestige Tower F. Ortigas Jr. Road, Ortigas Center, Pasig City Counsel for Petitioners tG. R. No. 2035/81
Suite 602 Richmonde Plaza Hotel

SANTILLAN-FELIX MAGBANUA AND MELIA LAW OFFICE

GUEVARRA MENDOZA AND ESPIRITU LAW OFFICES

21 Sari Miguel Avenue, Ortigas Center, Pasig City

01^^f' ^10 - I*^^ V:-I

SAN JUAN TAYAG LEE AND VERGARA LAW OFFICE

Counsel for Petitioners tG. R. No. 2035/81

Unit 805 Xavierville Square Xavierville Avenue, Quezon City
DEAN JOHN PAOLO ROBERTO L. A. VILLASOR

015^I' ^. 0 ^^^7

Counsel for Petitioner IG. R. No. 2035/81

School of Law, UnivLizaresofAvenue, 61.00 BaOolodRecoletos ^>4^',^" \!^:) - ^3 grt St. Augustine Hall, 51 ersity Negros Occidental- City
ATTY. SHERYL L. OLAl^O

Counsel for Mr. Rovelio V. Quevedo and Mr. William H. Torres

Unit 1,409 East Tower, Philippine Stock EXchange Center EXchange Road, Ortigas Center, Pasig City

I""' '^!, 0 - I 3 I '

EXPLANATION FOR SERVICE BY REGISTERED MAIL

THE HONORABLE CLERK OF COURT

Supreme Court Padre Faura, Manila

Madam:

Please be informed that the undersigned counsel was unable to personally serve copies of the foregoing Memorandum and was constrained to serve said Memorandum by registered mail to the above-named parties, as evidenced by the attached Affidavit o1 Service by Registered Moil, due to lack of material time and available manpower to effect service by personal delivery.
KRIS URISIMA

JAME