^;- '^' ^,'

REPUBLIC OF THE PHILIPPINES SUPREME COURT

MANILA

R^;^o:1)"^IR-,.
. -.-----

2112 OCT ~4 pH 28 36

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. KRISTINE JOY S. HERMITANIO; REMENTILLA; MARICEL O. GRAY; JUUUS

IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA JR. ; ond PINOY ExpAT/OFW BLOG AWARDS, INC. COORDINATOR FEDRO E. RAHON;
Petitioners,
- versus -

203469
G. R. No.

Certiorori & Prohibition tWith Applicofion for the Is SUGnce

of o Temporory Restroining
Order Grid/or Writ of

Preliminory Injunctionl
HIS EXCELLENCY BENIGNO S. AQUINO

1/1, in his copocify OS President of the

Republic of the Philippines; SENATE OF THE PHIUPPINES, represented by HON. JUAN PONCE ENRILE, in his cqpocify qs
Seriale

President;

HOUSE

OF

REPRESENTATIVES, represenfed by
FELICIANO R. BELMONTE, JR. , in his

copocily OS Spedker of the House of

Representatives: HON. FAQUITO N.

OCHOA, JR. , in his cqpocify OS

Execufive Secrefory; HON. LEILA M. DE

LIMA, in her copocify qs Secretqry of

Justice; HON. LOUIS NAPOLEON C.

CASAMBRE, in his copocify

QS

Executive Director, Informqfion Grid

Communications Technology Office;

HON. NONNATUS CAESAR R. ROJAS, in his copocify OS Director, Notionql Bureou of Investigation; ond PIDGEN.
NICANOR A. BARTOLOME, in his

capocily OS Chief, Philippine National

Police,

Respondents.
x ---X

I, '

PETITION FOR CERTIORARI AND PROHIBITION

WITH APPLICATION FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER

AND/OR WRIT OF PRELIMINARY, INJUNCTION

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; JUUUS IVAN F.
CABIGON: BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT

RUBEN B. LICERA JR. ; grid PINOY ExpAT/OFW BLOG AWARDS, INC.

COORDINATOR FEDRO E. RAHON ("Petitioners"), by counsel, Grid

unto the Honoroble Court, respectfully stole:
PREFATORY

Bloggers Grid netizens - citizens who hove Grid who octively use their internet occess - roise the o10rm over o newly-signed Grid newly-enocfed low violofing their individuol Gild collective rights, Grid destroys the ideo Grid reolify of the Internef OS on open public
forum Gild in orkefploce of ideos.

In Gsmuch OS they ore concerned by the new low's mony violofions of their fundomenfol Grid constitution o1 rights OS individuols, they toll the bells now over the cleor Grid present
dongers Republic Act No. 10/75, otherwise known OS the

Cybercrime Prevention Act of 2012 ("Cybercrime Prevention Act"),

pose on the internet OS o plotform for close to one-third of the poloulofiOn. The internet is where they could discuss issues Grid
concerns,

respond during disosfers Grid

. .

crises, demond

improvements in vonous osloecfs of notion o1 life Grid, most importonfly, to speok truth to power.

Before, citizens solely depended on newspopers, periodicols,

rodio, Grid televisions to
exercise

their fundomenfol Grid

constitution o1 rights to free expression, to redress of griev'onces Grid even to OSsembly Gild OSsociofion. To doy, the internet Grid even mobile phones hove become the plotform Grid mediums of citizens themselves from which they exercise their rights.

In focf, Filipinos hove excelled in internet use Grid eomed for the Philippines the new monicker "SOCiol medio CGIoifol of the
world".

To the complete shock of citizens, the Government odopfed o new low Ihof involves spying on citizens, seizure without proboble

couse, prior restroinf, subsequent punishment, Grid other octs

prohibited under the Constitution.

Thus, in light of this grove context, conferred upon the

Judiciory is the ponderous duty to rein in the Legislofive Grid Executive Bronches of Government to their own o110cofed 1010ces under the Constitution. In the 10ndmork cose of Morbury v. Modison,

5 U. S. 137 (1803), the United Stores Supreme Court on uriciofed the principle of Iudiciol review, thus: "If is emphoficolly the province Grid
duty of the Iudiciol deportment to SOY whof the low is. "

,,,

In the Philippines, the Honoroble Court's power of Iudiciol

review is conferred on the Judiciol Bronch of Government OS stoled

in Section I , Article Vlll of the Constitution. Such power of Iudiciol

.

review wos eorly on exhousfively expounded on in the definitive I936 cose of Angoro v. Ejectorol Commission, 63 Phil. 139(1936), in
which the Honoroble Court discoursed:

"The Constitution is o definition of the powers of government. Who is to determine the noture, scope Grid extent of such powers? The Constitution itself hos provided for the instrument Qiny of the Iudicior/ OS the rotionol woy. And when. the judiciory mediales to
allocate constitutional boundories, if does riot assert ony

superiority over the other deportments; if does nof in redlify nullify or involidofe on oct of the legislofure, but only OSserls the solemn ond SOCred obligation assigned to if by the Constitution to determine conflicting clqims of guthorily under the Constitution ond to esfoblish for the parties in on octuql controversy the rights which Ihof instrument secures ond guoranfees to them. This is in truth o11 Ihof is involved in whof is termed 'Iudiciol SUIoremocy" which properly is the power of Iudiciol review under the Constitution. " tEmphosis suppliedI As the finol orbiter of o11 legol controversies Grid the lost IOUlwork of democrocy in this jurisdiction, the Supreme Court is 10sked with the most noble Grid owesome duty to up hold the Constitution Grid protect the liberties of citizens, OS held in Bengzon v. Drilon, 208 SCRA 133 (I 992) :
"If connof be overstressed Ihof in o constitution o1

government such OS ours, the rule of low must prevoil.

The Constitution is the basic and poromounl law to which o11 other lows must conform grid to which o11 person, including the highest Qinciql of the kind, must defer. From this cordinol postulofe, if follows Ihof the three bronches of government must dischorge their respective functions within the limits of outhorify conferred by the Constitution. Under the principle of seporofion of powers,
4

"

~,

neither Congress, the President, nor the Judiciory inoy

encrooch on fields o110cofed to the other bronches of

government. The legislofure is generolly limited to the

enocf merit of lows, the executive to the enforcement of

lows Grid the Iudiciory 10 their interpretofion Grid OPPlicofion to coses Grid controversies. The constitution expressly confers on the Judiciory the power to momfoin in violofe whof if decrees. As the guordion of Ihe Constitution, we connof shirk the duly of seeing to if that the officers in eoch bronch of government do riot go beyond their constitution o11y qllocofed boundories grid Ihol the entire government itself or ony of its bronches does nof violate the basic liberties of the people. " tEmphosis supplied I
Indeed,
the
Honoroble Court herein colled to

Is

upon

endeovor to vindicofe rights sofeguorded by the fundomenfol low, porticulorly in this instonce when both the Legislofive Grid Executive Bronches of Government intend to employ ogoinsf citizens o crude fool to bludgeon their most cherished Grid Ieolously guorded fundomenfol civil rights:

"[D]espife the inhibitions pressing upon the Court

when confronted with consfifulionol issues, if will riot
hesnore to declqre o 'low or oof invalid when if is

convinced that this must be done. In orriving of this conclusion, its only criterion will be the Constitution ond God OS its conscience gives if in the Iighl to probe its meaning and discover its purpose. Personol motives and politicol considerations ore irrelevoncies Ihof connof
influence its decisions. Blondishmenf is OS meffecfuol OS

in timidofion, for o11 the owesome power of the Congress

Grid Executive, the Court will not he silofe "to in oke the

hornmer foll heovily, " where the octs of these deportments, or of oily officiol, betroy the people 's will OS expressed in the Constitution. " tLuz Forms v. Secrefory of the Deportmenf of Agrorion Reform, 192 SCRA 51

( I 990) ; Associofion of Sinoll Londowners of the

Philippines, Inc. v. . Secretory of Agrorion Reform, I75 SCRA 343 (1989); emphosis suppliedl

ID

Under this regime, the Honoroble Court is petitioners' only o11y

in up holding their in o1ienoble civil rights under the Constitution, most especiolly the following iridispufoble entitlements under the Bill of Rights:
RIGHT To DUE PROCESS OF LAW RIGHT To EQUAL PROTECTION OF THE LAWS

"Section I . No person sholl be deprived of life, liberty, or property without due process of low, nor sholl ony person be denied the equol protection of the lows. "
.

RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES

"Section 2. The right of the people to be secure in their persons, houses, popers, Grid effects ogoinsf
unreosonoble seorches Grid seizures of whofever motore

Grid for ony purpose sholl be in violoble, Grid no seorch worronf or worronf of orresf sholl issue except upon proboble couse to be determined personolly by the judge offer exominofion under oofh or offirmofion of the coinploinonf Grid the witnesses he inoy produce, Grid porticulorly describing the PIOce to be seorched Grid the persons or things to be seized. "
.

RIGHT To PRIVACY OF COMMUNICATION AND CORRESPONDENCE

"Section 3. (I ) The privocy. of coinmunicofior\ Grid correspondence sholl be in violoble except upon lowful order of the court, or when public sofefy or order requires otherwise, OS prescribed 'by low. (2) Any evidence obfoined in violofion of this or the preceding section sholl be in odinissible for ony purpose in ony proceeding. "
.

RIGHT To FREE SPEECH AND EXPRESSION

"Section 4. No low sholl be possed obridging the freedom of speech, of expression, or of the press, or the right of the people peoceobly to OSsemble Grid petition the government for redress of grievonces. "

..

RIGHT AGAINST DOUBLE JEOPARDY

"Section 21. No person sholl be twice put in

Ieopordy of punishment for the some offense. If on oct is punished by o low ' Grid on ordinonce, conviction or ocquiftol under either sholl constitute o bor to on other prosecution for the some oct. "

Now more Ihon ever, therefore, with o11 due respect, the

power of Iudiciol review must not be obrogofed or obondoned by

the Honoroble Court. Otherwise, the other bronches of Government

Will be oble to operofe OS they very well pieose even beyond their
fences, to the delrimenf of citizens,

The sovereign citizens hove entrusted to the Honoroble Court

the immense power Grid outhorify of the judiciol perl to hold SWGy the purse Grid the sword to their own o110cofed PIOces under the Constitution. Beyond dispute, Iudiciol review is not SUIoremocy but
duty.

Veiny, when the Judiciory mediofes to o110cofe constitution o1

boundories or involidofes the octs of o co-equol body, if is

up holding not its own SUIoremocy but the supremocy of the Constitution, porticulorly when the most cherished Grid Ieolously guorded civil rights Ihof ore protected by 110 less Ihon the Constitution hot\g in the bolonce.

SImilorly, fludiciol review is essenfiol for the momfenonce Grid enforcement of the seporofior\ of powers Grid the boloncing of powers Qinong the three greof deportments of government through the definition Grid in Qinfenonce of the boundories of outhorify 'Grid control between them. " As if is, "in udiciol review is the chief, indeed

the only, medium of porticipofion - or instrument of intervention - of the Iudiciory in Ihof boloncing operofion. " tFroncisco v. House of Representatives, 4/5 SCRA 44 (2003)l

If is precisely for this reoson fhof petitioners OSsoil the constitution o1ify Grid legolify of the following Assoiled Provisions of the Cybercrime Prevention Act:

(l )

SECTION 4(c)(4) seporofely criminolizing octs of libel, OS

defined under Article 355 of the Revised Penol Code, OS

omended, Ihof ore committed through o computer system or ony other similor me ons Ihof inoy be devised in the future ( "Cyber Libel") ;

(2)

SECTION 5 criminolizing octs fhof oid or obef the commission of ony offense punish obje under the Cybercrime Prevention Act, OS well OS the onempf to commit the some, including Section 4(c) (4) on Cyber
Lib el;

(3)

SECTION 6 imposing o higher penolfy for the commission of ony offense punishoble under the Cybercrime Prevention Act, i. e. , one (l ) degree higher Ihort fhof provided under the Revised Penol Code, OS omended, Grid SIoeciol lows;

(4)

SECTION 7 providing Ihof o prosecution under the Cybercrime Prevention Act sholl be without prejudice to ony 110bilify for violofion of ony provision of the Revised Penol Code, OS omended, or speciol lows; .
8

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'UO!+F1+!+SUOO eLj+ }O

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eS!Me>I!I eJO SUO!S!AOJd pel!DSSv eAoqo eLj+ LLioJ} Iv\o1} +0Lj+

10V UO!+UeAeJd eru!101eq/\o eLi+ 10 suo!s!AOJd Ieci+o eLjL

(1)

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puo

:IDAOJddo Jo/puo uo!+Duos '+uoJJo/v\ 10!0!pal loud 1.0Ll+!N\

erui+-10eJ un o10p 0!}}o11 suoeLLi o1uoJ+Dele 10 100!uLioe+

Aq PIOoeJ 101puo peli00 o1 'escioo ecip Ll+!N\ 'se!+!10Ll+CIO IUeLLieoio}ue Iv\o1 110 puo Au0 6u!z!Joti+CIO 31 NOILO^S (9)

Moreover, the Cybercrime Prevention Act is confrory to the commitment to Ironsporency Ihof the present dispensofion hos supposedly chompioned.

If is likewise untorfunofe to note Ihof the Legislofive Grid Executive Bronches of Government chose to priorifize the possoge of on over reoching low Ihof curbils citizens ' rights Grid effective Iy shepherds the notion to the Cyber Dork Ages, OS opposed to enocfing lows Ihof promote Ironsporency Grid good governonce,
such OS the Freedom of Informofion Bill.

Further, o greof number of our Overseos Filipino Workers ("OFWs"), who ore herolded OS modem-doy heroes, certoinly look forword to Grid expect the benefits of their constitution o11yguoronfeed right to free speech, which they most probobly do not enjoy OS much, if of o11, in the countries where they ore deployed. They will be much offecfed by the droconion sfofufe. Moreover, Cybercrime Prevention Act is o direct OSsoulf to the time-honored principle of eoch citizen 's right to prtvocy, which is the in o1ienoble right of on individuol to be let o10ne. This much wos emunciofed by Justice Louis Brondeis of the United Stores Supreme Court in his dissent in 01msfeod v. United Stores, 277 U. S. 438 (1928),
VIZ. :

the most "The right to be let o10ne comprehensive of rights, Grid the right most volued by civilized men. To protect fhof right, every unjustifioble intrusion by the Government upon the p'rivocy of the individuol, whorever the me ons employed, must be deemed o violofion of the Fourth Amendment. "

10

"

The Honoroble Court hos likewise occorded due deference to

the right to be let Gione. In City of Moriilo v. Logui0 455 SCRA 308
(2005), the Honoroble Court held Ihof the right to be let o10ne is the beginning of o11 freedom - if is the most comprehensive of rights ond the right most volued by civilized men. BY its very rioture Grid purpose, the concept of liberty compels respect for the individuol whose CIOim to privocy Grid interference demonds respect.

The right to be let o10ne is o fundomenfol right fhof extends to the informofion 10/01forms Grid medio offered by technology. A simple post or shout-out through o Twitter occounf or Focebook poge inoy, to some, be undeserving of legol protection. However,

such seemingly simple Grid in undone octs of shoring opinions Grid perspectives on vonous subject mottors inoy well be considered OS
the noturol consequence of the evolving concept of the right to

prtvocy, the right to be let done. More so, if should be underscored

Ihof o person does not woive, shed or otherwise give up his right to

privocy simply be couse he or she used o different medium of

coinmunicofion, such OS the internet.

If is unforfunofe, even o10rming, to note Ihof o11hough the

Legislofure hod o11 the opportunity to croff o low Ihof is, Grid should be, responsive to the evolving times, if insteod produced o
.

Ponopficon Ihof will not he sitofe to strike down ony Grid o11 online
octs Grid utteronces Ihof
ore

deemed undesiroble Grid

unoccepfoble occording to the fleeting Grid subjective SIGndords

of low enforcement outhorifies, without the benefit of ony Iudiciol

oversight or soncfion. Given these grove circumsfonces, the

11

President hod the corresponding opportunity, even the duty, to veto the o11-embrocing low on beholf of millions of freedom-loving citizens Yet he did not see if fit to protect, preserve Grid odvonce the rights of his constituents in the foce of o mornmofh legislofion.

As o result, o regime of round-the-clock surveillonce - o consfonf oxe honging over heod, reod to strike - effective Iy chills Grid silences legifimofe oction, thought, free discussion, Grid dissent.

Indeed, OS consistently held by the Honoroble Court, in the reolm of

the politicol life of o notion, debofe on public issues should be uninhibited, robust, Grid wide open Grid Ihof if inoy well include vehement, cousfic Grid sometimes unpleosonfly shorp o110cks on government Grid public officiols. tAdjong v. Commission on Elecfions, 207 SCRA 712 (1992); New York Times Co. v. Sunivon, 376 U. S. 254 (I 96411 When, OS in this cose, the Legislofive Grid Executive Bronches of Government oct in complete defionce of the cleor letter Grid spirit of the Constitution, if is the SOCred duty of the Honoroble Court

to up hold the fundomenfol low Grid, consequently, strike down the

Assoiled Provisions in order to offirm the most cherished Grid Ieolously guorded fundomenfol rights of citizens under the oegis of o

democrocy Ihof wos pointully fought for by greof forebeors who

SIGnd to be dishonored Grid disgroced by the implement of ion of

legislofior\ Ihof is unprecedented in the monner by which if seeks to curbil the rights of the very citizens fhof ore the beneficiories of
freedom fought Grid won - until now.

12

Otherwise, feor would be obundonf OS fundomenfol freedoms

foll by the woYside.

NATURE AND TIMELINESS OF THE PETITION

This is o Petition under Rule 65 of the Rules of Court for Certiorori

Grid

Prohibition seeking to nullify Grid

e nl o1n

the

implement of ion of the Assoiled Provisions of the

Cybercrime

Prevention Low, OS well OS the other provisions Ihof flow therefrom.

Significonfly, the Honoroble Court's Iudiciol power,

OS

on chored on Article Vlll, Section I of the Constitution, includes the

duty to determine whether there hos been o grove obuse of

discretion Qinounfing to lock or excess of jurisdiction on the port of ony bronch of the Government, porticulorly with respect to the

possoge of the Cybercrime Prevention Act Grid its Assoiled

Provisions:

"Section I . x x x Judiciol power includes the duty of the courts of justice to settle octuol controversies involving rights which ore legolly demondoble Grid
enforceoble, Grid to determine whether or riot there hqs

been o grove obuse 'of discrefion Qinounfing to lock or excess of jurisdiction on the port of any branch or instrumentdinty of the government. " IEmphosis suppliedl In the instonf cose, the requisites for the Honoroble Court' s

exercise of its power of Iudiciol review ore present, nomely: (I ) there is octuol cose or controversy colling for the exercise of Iudiciol power; (2) petitioners hove legol SIGnding Grid personol Grid
subsfonfiol interests to chollenge the Assoiled Provisions considering

Ihof petitioners will susfoin direct injury OS o result of the

13

implement of ion Grid/or enforcement thereof; (3) the question of constitution Qiny is roised of the eorliesf possible opportunity; Grid (4) the issue of constitution Qiny is the very lis in ofo of the instonf Petition. [Froncisco v. House of Representatives, 4/5 SCRA 44 (2003)]
The Instonf Petition Presents An ACfuol

Controversy Thof Necessifotes The

Exercise Of Judiciol Review

A justicioble controversy hos been defined OS one "where there is on octuol controversy, or the ripening seeds of one exists between the ponies, o11 of whom ore suijuris Grid before the court, Grid Ihot the declorofion sought will help in ending the controversy. A doubt becomes o justicioble controversy when if is Ironsloted info
.

o CIOim of right which is octuolly contested. " tInfernofionol Hordwood Grid Veneer Coinpony of the Philippines v. University of the Philippines Grid Jose C. Coinpos, Jr. , 200 SCRA 554 (1991) I A cose is ripe for odjudicofion when something hod by then been
,

occomplished or performed by either bronch. tTon v. Mocopogol, 43 SCRA 677 (I 972)I In the instonf cose, on octuol controversy exists considering Ihof the Cybercrime Prevention Act, including the Assoiled

Provisions, hove o1reody token effect, OS of 03 October 2012, thus,

bringing obouf on octuol violofion of the Constitution.

Accordingly, where o violofion of the Constitution hos

.

occurred, the issue is o justicioble controversy. The question, therefore, of whether there hos been coinplionce with or violofion of

the most cherished ond Ieolously guorded fundomenfol civil rights

14

under the Constitution is for the Honoroble Court to poss upon.

tDisomongcop v. Datumonong, 444 SCRA 203 (2004), citing Tohodo v. An gor0,272 SCRA I8 ( l 997)l Petitioners Have The Requisite Legol SIGnding To Instifufe And Mornfoin The
Instonf Petition

In Pimentol v. Office of the Executive Secrefory, ef o1. , 462 SCRA 622 (2005), the Honoroble Court discussed the issue of legol SIGnding OS follows:

"The petitioner in every cose must therefore be on o99rieved pony in the sense Ihof he possesses o cleor legol right to be enforced Grid o direct interest in the duty or oct to be performed. tLegospi v. Civil Service Commission, 150 SCRA 530 (l 987)l The Court will exercise its power of Iudiciol review only if the cose is brought before if by o pony who hos the legol SIGnding to roise the constitution o1 or legol question. ' Legol SIGnding ' me Gins o personol Grid subsfonfiol interest in the cose such Ihof the pony hos susfoined or will susfoin direct injury OS o result of the government oct fhof is being chollenged. The term 'interest' is motoriol interest, on interest in issue Grid to be offecfed by the decree, OS distinguished from mere interest in the question involved, or o mere incidentol interest. tJoyo v. Presidentiol Commission on Good Government, 225 SCRA 568 (l 993)l
xxx

The question in SIGnding is whether o porty hos o11eged such o personol SIGke in the outcome of the controversy OS to OSsure Ihof concrete odverseness which shorpens the presentofion of issues upon which the court so 10rgely depends for illuminofion of difficult constitution o1 questions. " tGonzoles v. Norvos0, 337 SCRA 733 (2000)l
I

Petitioners hove legol SIGnding to institute ond momfoin the instonf Petition considering Ihof the in offer of bor involves on issue

15

of utmost Gild for reoching constitution o1 importonce, i. e. , the constitution Qiny of the Assoiled Provisions of the Cybercrime
Prevention Act, which ore in direct coalrovenfion with the most

cherished Grid Ieolously guorded fundomenfol civil rights the enshrined in the Constitution. IKilosboyon Foundofion, ef .o1. v. Execufive Secretory, of o1. , 526 SCRA 353 (2007)l Thus, the instonf Petition is filed to ensure Ihof the questioned officiol octs of the Legislofive Grid Executive Bronches of the Government ore within the limits o110wed by the Constitution.

In ony event, the Honoroble Court hos highlighted its liberol SIGnce with respect to o petitioner's locus SIondi where soid
.

petitioner roises on issue of Ironscendenfol significonce Grid importonce to the people, OS in the cose of the instonf Petition considering the brood effect of the Assoiled Provisions on the most cherished Grid Ieolously guorded fundomenfol civil rights under the Constitution Ihof ore intrinsic Gild in o1ienoble. tTofud v. Secrefory of Energy, 281 SCRA 330 (1997); Goreio v. Executive Secretory, 21 I SCRA 219 (1992); OSmeiio v. Commission on Elections, I99 SCRA (1991) ; BOSco v. Philippine Amusements Grid Goming Corporation, I97 SCRA 52 (1991 ); Dozo v. Singson, 180 SCRA 496 (l 989), Aronefo v. Dingloson, 84 Phil. 368 (1949)l
As will further be discussed below, I he defer minofion of the

constitution o1ify of the Assoiled Provisions, which involves the curioilmenf of the most cherished Grid Ieolously guorded fundomenfol civil rights under the Constitution, is no doubt on issue of Ironscendenfol significonce Gild importonce.

16

The Consfifufionolify Of The Assoiled

Offcml Acts Is Being Rotsed A1 The

Eoniesf Possible Opportunity As previously stored, the jurisdiction of the Honoroble Court is

hereby invoked owing to on octuol cose or o justicioble controversy

Ihof orose when, in grove obuse of discretion Qinounfing to lock or
excess of jurisdiction, the Legislofive Grid Executive Bronches of

Government enocfed the Cybercrime Prevention Act, including the

.

Assoiled Provisions, in spite of its cleor Grid unmisfokoble

coalrovenfion with the Constitution.

Considering Ihof the Cybercrime Prevention Act took effect

on 03 October 2012, petitioners hereby OSsoil the constitution o1ify

Grid legolify thereof of the eorliesf possible opportunity Grid within the reglemenfory period provided for under Sections I Grid 2 of Rule
65 of the Rules of Court.

The Constitution only Of The Assa"ed OffICiol Acts Is The Very Lis Mofo Of The Irisfonf Controversy Petitioners hereby respectfully submit Grid contend Ihof the
Assoiled Provisions violofe the cleor letter

Grid spirit of the

Constitution. Moreover, ' whof is OSsoiled by the instonf Petition is not merely the Assoiled Provisions themselves but GISo the grove obuse of discretion on the port of the Legislofive Grid Executive Bronches of Government in enocfing the Cybercrime Prevention Act, including the Assoiled Provisions thereof, in spite of constitution o1 Grid legol
infirmities.

17

Therefore, there is no other course Ihor\ to rule on the

constitution o1 issue OS if is unovoidobly necessory to the decision of the instonf Petition. tSofto v. Commission on Elections, 76 Phil. 516 (l 946); Luz Forms v. Secrefory of Agrorion Reform, I92 SCRA 51 (1990) I Indeed, the Assoiled Provisions connof be implemented without first determining their conformity with the fundomenfol low
of the 10nd.

Other Procedurol Consideroffons

Considering Ihof the issues roised ore of 100romounf importonce Grid offecf the most cherished Grid fundomenfol rights of citizens, if is respectfully submitted Ihof the Honoroble Court should toke cognizonce of the instonf Petition jinmediofely.

Further, the writs of certiorori Grid prohibition ore invoked by petitioners on the ground fhof there is no other PIOin, speedy, Grid odequofe remedy to them in the ordinory course of low Grid procedure other fhor\ to institute the instonf Petition to nullify the
Assoiled Provisions. Petitioners, thus, ovoil of the instonf Petition

pursuonf to Sections I Grid 2 of Rule 65 of the Revised Rules of Court.

Through the writs of certiorori Grid prohibition, if is humbly sought Ihof judgment be rendered Grinulling the Assoiled Provisions Grid prohibiting their subsequent implemenfofion Grid/or enforcement in ony monner whoisoever.

The Cybercrime Prevention Act wos published in two (2)

.

newspopers of generol circulofion in the Philippines on 18 September 2012 Grid, IOUrsuonf to Section 31 thereof, took effect on
18

03 October 2012. Under Section 4 of Rule 65 of the Rules of Court,

the instonf Petition inoy be filed not loter Ihon sixty (60) doys from notice of the oct sought to be enjoined. Thus, the instonf Petition is timely Grid seosonobly filed Grid the issue ripe for Iudiciol review.
THE PARTIES

I . Petitioners, who ore directly Grid odversely offecfed by the implement of ion of the Assoiled Provisions, ore suing in their copocities OS citizens Grid foxpoyers of the Republic of the Philippines, o11 of whom ore of leg01 o9e, Filipinos, Grid inoy be served with orders Grid legol processes of the Honoroble Court, OS well OS with 101eodings, popers Grid other documents, through the undersigned counsel:
I .I . PETITIONER ANTHONY IAN M. CRUZ is on

octive SOCiol medio user, owner of the tech Grid politicol blog tonyocruz. coin Grid the Twitter occounf @10nyocruz, president of consumer Grid netizen group TXTPower. org, Inc. , Grid o SOCiol medio sirofegisf by profession. He is o previous winner in the Philippine Blog
Awords.

1.2. PETITIONER MARCELO R. LANDICHO is on

octive SOCiol medio user Grid owner of the politicol

humor site The Professionol Heckler Grid the Twitter

occounf @HecklerForever. His blog hos won repeofedly in the Philippine Blog Awords.

19

"

1.3. PETITIONER BENJAMIN NOEL A. ESPINA is on

octive SOCiol medio user, owner of Atheist Grief Grid the

Twitter occounf @0theisfo, Grid o SOCiol medio on o1yfics director by profession. He is o previous 'winner in the Philippine Blog Awords.
I. 4. PETITIONER MARCK RONALD C. RIMORIN is on

octive SOCiol medio user, owner of the blog Morochorim Experiment Grid the Twitter occounf @in orochorim, Grid o SOCiol medio intelligence director by profession. He is o previous winner in the Philippine Blog Awords.
1.5. PETITIONER JULIUS D. RocAS is on octive

SOCiol medio user, owner of blog The Four Eyed Journol Grid the Twitter occounf @Ihoyrocos, Grid on online publisher by profession.
1.6. PETITIONER OLIVER RICHARD V. ROBILLO is on

octive SOCiol medio user, owner of severo1 blogs Grid the

Twitter occourIf @blogie, Grid o SOCiol medio consultonf by profession. He is one of the founders of the Mindonoo
Bloggers Community.
1.7. PETITIONER AARON ERICK A. LOZADA is on octive SOCiol medio user,
owner

of the blog
occounf

RhoyGossipboy. 10h

Grid

Twitter

@pinoygossipboy, Grid o student of the College of Low of the University of the Philippines.

20

I. 8. PETITIONER GERARD ADRIAN P. MAGNAYE is

on octive SOCiol medio user, owner of the blog Noisy Noisy Mori Grid the Twitter occounf @odemognoye, Grid o SOCiol medio officer by profession.
1.9. PETITIONER JOSE REGINALD A. RAMOS is on

octive SOCiol medio user,

owner

of the blog

dronfhego. net Grid the Twitter occounf @dronthego, contributor to the tech 10/09 Technoodling Grid o freelonce internet coalrocfor by profession.
I. IO. PETITIONER MA. ROSARIO T. JUAN is on octive SOCiol medio user,
convenor

of Twitter meetup

orgonizing group TweefUPMNL, owner of Twitter occounf @IUonxi Grid on entrepreneur Grid o SOCiol medio sirofegisf by profession.
.

I .I I . PETITIONER BRENDALYN P. RAMIREZ Is on

octive SOCiol medio user, owner of the blog Brendomo Gild the Twitter occounf @BryRomirez ond o digitol occounfs monoger by profession.
1.12. PETITIONER MAUREEN A. HERMITANIO is on

octive SOCiol medio user, owner of the Twitter occounf

@mobilemoui, o contributor to the Philippine Online Chronicles Grid BlogWofch. 10h, Grid o government employee.
1.13. PETITIONER KRISTINE JOY S. REMENTILLA is on
octive SOCiol medio
user,
owner

of the

21

blog WWW. flaremenfillo. coin Grid

@11n_reinenfillo, Grid o SOCiol

the Twitter occounf

medio monoger by

profession.
I. I4. PETITIONER MARICEL O. GRAY is on octive

SOCiol medo user, o developer belonging to the Google Developers Community, owner of the Twitter occounf @cellofoodiegeek Grid on IT business development executive by profession.
I. I5. PETITIONER JULIUS IVAN F. CABIGON is on

oword-winning odverfising professionol, digital in orkefing proofifioner, Grid Gallve SOCiol medio user
relionf on the internet for his croff.

heovily

I. 16. PETITIONER BENRALPH S. YU is on octive SOCiol

medio

user,

owner

of the Twitter occounf

@wherehoveyouben, Grid o multi-oworded student, Ieoder ond scholor of the University of the Philippines,
Monilo.

I. I7. PETITIONER RUBEN B. LICERA JR. is president of CEBU BLOGGERS SOCIETY INC. ("CBSl"), the country's first bloggers OSsociofior\ registered with the Securities Grid Exchonge Commission, on octive SOCiol medio user, owner of severo1 blogs Grid of the Twitter occounf @rubenlicero Grid on online in orkefing SIoeciolisf by profession.

22

I. I8. PETITIONER FEDRO E. RAHON is the Monto~

Luzon coordinofor of the PINOY ExpAT/OFW BLOG

AWARDS INC. ("FEBA"), on octive SOCiol medio user, owner of the blog "Pinoy Chocophile", Grid o in19ronf worker odvocofe by profession.
2. RESPONDENT HON. BENIGNO S. AQUIN0 1/1, President of

the Republic of the Philippines, signed the Cybercrime Prevention Act into low on 12 September 2012, inoy be served with orders Grid legol processes of the Honoroble Court, OS well OS with 101eodings, popers Grid other documents, of the Office of the President, Molocofiong PGIdce, City of Monilo. 3. RESPONDENT SENATE OF THE PHILIPPINES, represented by Senofe President JUGr\ Ponce Enrile, possed the consolidofed version of Senofe Bill No. 2796 Grid House Bill No. 5808 on 05 June 2012, inoy be served with orders Grid legol. processes of the Honoroble Court, OS well OS with PIeodings, popers Grid other documents, of the Senofe of the Philippines, GSIS Building, Finonciol Center, Roxos Boulevord, POSoy City.
.

4. RESPONDENT HOUSE OF REPRESENTATIVES, represented by Speoker Feliciono R. Belmonfe, Jr. , possed the consolidofed version
of Senofe Bill No. 2796 Grid House Bill No. 5808 on 04 June 2012, inoy

be served with orders Grid legol processes of the Honoroble Court, OS well OS with PIeodings, popers Grid other documents, of the House of Representofives, Bobsong Pornbonso Complex, Bobson Rood, Quezon City.

23

5. RESPONDENT FAQUITO N. OCHOA, JR. , the Executive

Secretory, inoy be served with orders Grid legol processes of the Honoroble Court, OS well OS with 101eodings, popers Grid other documents, of the Office of the Executive Secretory, Molocofiong Poloce, City of Monilo. 6. RESPONDENT LEILA M. DE LIMA, the Secretory of Justice, one of the government officiols whose o9ency is specificolly designofed to implement the Cybercrime Prevention Act, including the Assoiled Provisions, inoy be served with orders Grid legol processes of the Honoroble Court, OS well OS with PIeodings, popers Grid other documents, of the DoJ Mom Building, Podre Fouro, City
of Monilo.

7. RESPONDENT LOUIS NAPOLEON C. CASAMBRE, Executive

Director of the Informofion Grid Coinmunicofions Technology Office

( "ICTO") under the Deportment of Science Grid Technology

("DOST"), one of the government officiols whose o9ency Is

specificolly designofed to implement the Cybercrime Prevention Act, including the Assoiled Provisions, inoy be served with orders Grid legol processes of the Honoroble Court, OS well OS with PIeodings, loopers Grid other documents, of the NCC Building, CP Goreio
Avenue, Dilimon, Quezon City.
8. RESPONDENT NONNATUS CAESAR R. ROJAS, Director of

the Notion o1. Bureou of Investigofion ("NBl"), one of the government officiols whose o9ency is specificolly designofed to implement the Cybercrime Prevention Act, including the Assoiled Provisions, inoy be served with orders Grid legol processes of the Honoroble Court,
24

OS well OS with 101eodings, popers Grid other documents, of the NBl Heodquorfers, Toff Avenue, City of Moriilo.
9. RESPONDENT NICANOR A. BARTOLOME, Chief of the

Philippine Notion o1 Police ("PNP"), one of the government officiols whose o9ency is specificolly designofed to implement the Cybercrime Prevention Act, including the Assoiled Provisions, inoy be served with orders Grid legol processes of the Honoroble Court, OS well OS with PIeodings, popers Grid other documents, of the PNP Heodquorfers, Coinp Crome, Quezon City.
10. Pursuonf to Section 22, Rule 3 of the Rules of Court, o

COPY of the instonf Petition is likewise served upon the OFFICE OF THE SOLICITOR GENERAL, through its office of 134 Amorsolo Street, Legospi Villoge, Mokofi City.
STATEMENT OF FACTS

I . On 04 June 2012, respondent House of Representofives possed the Cybercrime Prevention Act, which is o consolidofion of
Senofe Bill No. 2796 Grid House Bill No. 5808.

2. On 05 June 2012, respondent Senofe of the Philippines possed the Cybercrime Prevention Act, which is, OS previously
stored, o consolidofior\ of Seriale Bill No. 2796 Grid House Bill No.
5808.

3. On 12 September 2012, respondent Aquino signed the Cybercrime Prevention Act into low, o certified true COPY of which is o110ched to the instonf Petition OS Annex "A", while photocopies of

25

the soid certified true COPY ore offoched to the other copies of the
instonf Petition.

4. On I8 September 2012, the Cybercrime Prevention Act wos published in two (2) newspopers of generol circulofion in the Philippines.

4. I . Section 31 of the Cybercrime Prevention Act provides Ihof soid low "sholl toke effect fifteen (15) doys offer the completion of its publicofioit in the Officiol Gozeffe or in of Ieosf two (2) newspopers of generol
circulofion. "

4.2. Therefore, the Cybercrime Prevention Act

took effect on 03 October 2012.

5. Considering Ihof the foregoing focfs ore mottors of public knowledge, OS well OS officiol Gals, petitioners respectfully submit Ihof the some should be given Iudiciol notice by the Honoroble Court, pursuonf to Sections I Grid 2, Rule 129 of the Rules
of Court.

26

GROUNDS

SECTION I2 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:

A.

AN INDIVIDUAL HAS A REASONABLE EXPECTATION

OF PRIVACY OF PERSONAL ELECTRONIC DATA, As

WELL

As

COMMUNICATION

AND

CORRESPONDENCE.

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.

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.

11 SECTION 12 OF THE CYBERCRIME PREVENTION ACT Is

PATENTLY UNCONSTITUTIONAL CONSIDERING THAT IT VIOLATES AN INDIVIDUAL'S RIGHT To UNREASONABLE SEARCHES AND SEIZURES.

27

1/1 SECTION 19 OF THE CYBERCRIME PREVENTION ACT Is NULL

AND VOID FOR BEING UNCONSTITUTIONAL CONSIDERING

THAT:

A.

SECTION 19 OF THE CYBERCRIME PREVENTION ACT 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 AND/OR

ENFORCEMENT.

B.

SECTION 19 OF THE CYBERCRIME PREVENTION ACT Is VIOLATIVE OF THE RIGHT OF CITIZENS AGAINST

UNREASONABLE SEARCHES AND SEIZURES, As PROVIDED UNDER SECTION 2, ARTICLE 111 OF THE
CONSTITUTION.

C.

SECTION 19 OF THE CYBERCRIME PREVENTION ACT Is VIOLATivE OF THE RIGHT OF THE PEOPLE To

FREEDOM OF SPEECH, As PROVIDED UNDER SECTION 4, ARTICLE in OF THE CONSTITUTION.

IV

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

PREVENTION ACT ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL 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 1/1
OF THE CONSTITUTION.

28

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 111 OF THE CONSTITUTION.

DISCUSSION

I.

Section 12 Of The Cybercrime

Prevention ACf

Is Potently

Uriconsfifufionol Considering That If Violofes An Individuol's Right To Privocy And The Privocy Of Communication
And Corres on dence

Section I2 of the Cybercrime Prevention Act o110ws low enforcement outhorifies unbridled outhorify to collect or record dojo with respect to o coinmunicofion 's origin, desfinofion, route, time, dote, size, durofion, or type of underlying service in reol time without prior Iudiciol worronf:
"Section I2. Reol-Time Collection of Trothc Doto. -

Low enforcement outhorifies, with due couse, shall be

outhorized to collect or record by technicol or electronic means fromc dojo in redl-time OSsociofed with specified coinmunicqlions Ironsmifled by medns of o computer
systein .

Traffic doto refer only to the coinmunicolion's origin, deslinofion, route, lime, dote, size, durolion, or type of underlying service, but riot content, nor identifies.
All other dojo to be collected or seized or

disclosed will require o court worronf.

I

Service providers ore required to cooperofe Grid

OSsisf low enforcement outhorifies in the collection or

recording of the obove-sloted informofion.

29

The court worronf required under this section sholl only be issued or gronfed upon written OPPlicofion Grid
the exominofior\ under oofh or Qinrmofion of the

OPPliconf Grid the witnesses he inoy produce Grid the showing: (I ) fhof there ore reosonoble grounds to believe Ihof ony of the crimes emumerofed hereinobove hos been committed, or is being committed, or is obouf to be committed: (2) Ihof there ore reosonoble grounds
to believe fhof evidence fhof will be objoined is essenfiol

to the conviction of ony person for, or to the solution of,

or to the prevention of, ony such crimes; Grid (3) Ihof

there ore no other me ons reodily ovoiloble for obfoining such evidence. " [Emphosis Grid underscoring supplied]

This is, for o11 intents Grid purposes, seorch ond seizure before o

deferminofior\ of proboble couse occurs, violofing Sections 2 Grid 3,

Article 1/1 of the Constitution:

"Section 2. The right of the people to be secure in their persons, houses, popers, Grid effects ogoinsf
unreosonoble seorches Grid seizures of whorever noture

Grid for ony purpose sholl be in violoble, Grid no seorch worronf or worronf of orresf sholl issue except upon proboble couse to be determined personollY by the

judge offer exominofion under oofh or offirmofioi\ of the

coinploinont Grid the witnesses he inoy produce, Grid

porticulorly describing the PIOce to be seorched Grid the

persons or things to be seized.

Section 3. (l ) The privocy of coinmunicofion Grid

correspondence sholl be in violoble except upon lowful order of the court, or when public sofefy or order requires otherwise, OS prescribed by low. (2) Any evidence objoined in violofion of this or the preceding section sholl be in odinissible for ony purpose in ony proceeding. " With o11 due respect, Section I2 is o blobnf violofion of on

individuol's right to privocy Grid of the privocy of coinmunicofion Grid correspondence, OS guoronfeed by the Constitution. In foal,
the existence of constitution o11y, Grid sfofuforily protected zones of

30

prtvocy hos been consistently recognized by the Honoroble Court. In Ople v. Torres, 293 SCRA I 41 (1998), the Honoroble Court exploined
thus:

"Assuming, orguendo, Ihof A. 0. No. 308 need not be the subject of o low, still if connof poss constitution o1 muster OS on odininisfrofive legislofion be couse fociolly if violofes the right to prtvocy. The essence of prtvocY is the 'right to be let Gione. ' In the 1965 cose of Griswold v. Connecticut, the United Stores Supreme Court gove more subsfonce to the right of prtvocy when if ruled Ihof
the ri hf hos o constitution o1 foundation. If held fhof

there is o right of 10nvocy which con be found within the penumbros of the First, Third, Fourth, Fifth Grid Ninth
Amendments, x x x

In the 1968 cose of NIOrfe v. Mufuc, we odopfed

the Griswold ruling that there is o constitution o1 right to privacy. Speoking fhru Mr. Justice, loter Chief Justice, Earique Feinondo, we held:
XXX XXX XXX

cose involidofed o The Griswold Connecticut slotufe which mode the use of

coalrocepfives o criminol offense o11 the On ground of its Qinounfing to uriconsfifufionol invosion of the right of 10nvocy of momed persons; rightful Iy if stressed ' o relofionship lying within the zone of prtvocy creoled by severo1 fundomenfol constitution o1 guoronfees. ' If hos wider implicofions though. The constitution o1 right to privocy hos come into its own. So if is likewise in our jurisdiction. The
Is qccorded such reco rimon inde endenfl of its identification

ri hf

10

rivoc

OS

:,^!tx; in itself, if is fully deserving of constitution o1 protection. The longuoge of Prof. Einerson is porticulorly GPf: The concept of limited government hos o1woYs included the ideo fhof government o1 powers stop short of certoin intrusions info the personol life
of the citizen. This is indeed one of the bosic distinctions between obsolufe Grid limited

government. Urnmofe Grid pervosive control of the individuol, in o11 OSpecfs of his life, is the
hollmork of the obsolufe stole. In coalrosf, o

31

"

system of limited government sofeguords o prtvofe sector, which belongs to the individuol, firmly distinguishing if from the public sector, which the stole con control. Protection of this privofe sector - 12^
in other words of the of nil
the individuol jin orlonf OS modern SOCief ond info in of hos become increosin I

has develo ed All the forces of o technolo icol oe-

in dustriolizolion
.

urbanizofion and or onizofion - o ergfe to ridrrow the oreq of

rivac

Grid focilifofe intrusion into if

In

modem terms, the copocify to in Qinfoin Grid support this enclove of prtvofe life in orks the
difference between o democrofic Grid o

10/01iforion society. ' Indeed, if we exfend our judiciol goze we will find Ihof the right of privocy is recognized grid enshrined in severo1 provisions of our Constitution. If is ^z^I^L^!), reco nized in Section 3(I) of the Bill of Rights:
of The pnvocy (I ) coinmunicofion Grid correspondence sholl be in violoble except upon kiwiul order of the court, or when public sofefy or order requires otherwise OS prescribed by low. ' 'Sec. 3.

Other focefs of the right to privocy ore protected in vonous provisions of the Bill of Rights, viz: 'Sec. I . No person shoji be deprived of life, liberty, or property without due process of low, nor sholl ony person be denied the equol protection of the lows. Sec. 2. The right of the people to be secure in their persons, houses, popers, Grid effects ogoinsf unreosonoble seorches Grid
seizures of wholever noture Grid for ony

purpose sholl be in violoble, Grid no seorch

worronf or worronf of orresf sholl issue except

upon proboble couse to be determined personolly by the judge offer exominofion

under oofh or offirmofion of the coinploinonf Grid the witnesses he inoy produce, Grid

porticulorly describing the PIOce to be

seorched Grid the persons or things to be
seized.
XXX XXX XXX

32

Sec. 6. The liberty of obode Grid of chonging the some within the limits prescribed by low sholl not be impoired except upon lowful order of the court. Neither sholl the right to troveI be impolred except in the interest of notion o1 security, public sofefy, or public he o11h, OS inoy be provided by low.
xxx xxx xxx.

Sec. 8. The right of the people, including those employed in the public Grid privofe sectors, to form unions, OSsociofions, or societies for purposes not confrory to low shoji not be obridged.
sholl be Sec. 17. No person compelled to be o witness ogoinsf himself. ' " [Emphosis Grid underscoring supplied]

The discussion on the right to privocy wos reiferofed in Miguel v. Gordon, 504 SCRA 704 (2006), wherein the Honoroble Court held fhof in evoluofing o CIOim for violofion of prtvocy, if must be determined whether o person hos o reosonoble expectofion of
.

privocy,

Grid whether Government intrusion hos violofed such

exception:
"Zones of
.

rivoc

ore reco nized ond

rolecfed in

our lows. Within these zones, ony form of intrusion is impermissible unless excused by low Grid in occordonce with customory legol process. The meticulous regord we occord to these zones onses not only from our conviction Ihof the right to privocy is o 'constitution o1 right' Grid 'the right most volued by civilized men, ' but GISo from our odherence to the Universol Declorofion of Humor\ Rights which mondofes Ihof, 'no one sholl be subjected to orbitrory interference with his privoCy' Grid 'everyone hos

the right to the protection of the low ogoinsf such

interference or o110cks. ' Our Bill of Ri his enshrined in Article in of the uaronfees that rovides of ledsf two Constitution If hi hli hfs o erson s ex Iiciil creole zones of rivac 'ri hf to be let o10ne' or the 'ri hf to determine whqf how
.

33

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AUP ui asod, rid AUP 101 ajq!ss!Lupou! aq 110Ljs uo!pas
.

6u!peae, d aLj+ 10 s!Ljj 10 u0!1010!A u! peu!o1qo eauep!Ae AUP, IOU+ suo!In Do ,aLi+. Ing pub ,eauepuodse, ,o9 pub uo!+Do!unLLiLLi00 10 AaoA!, d, aLj+ 91qojo!Au! s, apue, g uo!pas ,'asod, rid AUP ,o1 pub a, ripu 19AeioLiAA 10 se, nz!as puo seLja, Des ajqDuosDe, un Isu!o60 spelle puo s, adod 'sesnoLi 'suos, ad I!aLij u! 91naes aq o191doed aLjj 10 ILj6!, aLjj, sealuo, on6 a uo!pas , 'pesojOS!p aq
110Ljs '10sLLi!Lj InoqD UO!+DLLi, 01u! ueLjm. pub LLioLjm o1 LionLLi

exploined Ihof the use of the telephone in on enclosed booth constitutes o reosonoble expectofion of prtvocy:
"In the 1967 cose of KOIz v. United Stores, the Us

Supreme Court held Ihof the oct of FBI o9enfs- in electronicolly recording o conversotion mode by petitioner in on enclosed public telephone booth violofed his right to privoc\) Grid constituted o "seorch
Grid seizure". Be couse the
ex ecfqfion of in oke o Fourth
. .

elmoner hod o redsonoble

.

rivoc

In us In

the enclosed booth to rolecfion of the

oreo.

ersonol tele hone coll the extends 10 such

Amendment

In

the

concurring opinion of Mr. Justice Horlon, if wos further noted Ihof the existence of prtvocy right under prior decisions involved o two-fold requirement: first, Ihof o person hos exhibited on octuol (subjective) expe. clotion of privocy; Grid second, fhof the expectofion be one IhOf Society is prepOred to recognize OS reOSOnOble (objective) ." In United States v. Andrus, 483 F. 3d 711 (10th Cir. 2007), the United Stoles Court of Appeols for the Tenth Circuit held Ihof

computers confoin o repository of privofe informofion over which

owners hove o reosonoble expectofion of privocy: "Courts considering the issue hove onempfed to on o109ize computers to other items more commonly
seen in Fourth Amendment 'uns rudence. Individuols' ex ecfofions of rivoc In Coin ufers hove been likened
. . . .

to their ex ecfofions

of

rivoc

In

suitcose

or

briefcase. ' United Stoles v. Aoron, 33 Fed;Appx. 180, 184

(6th Cir. 2006) (unpublished). Possword-protected files hove been coinpored to o 'locked footlocker inside the
bedroom. ' Trulock v. Freeh, 275 F. 3d 391, 403 (4th Cir. 200 I ) . Given the pervosiveness of computers in Amencon
homes, this court must reoch some, of Ieosf tentofive,

conclusion obouf the cotsgory into which personol

computers foil. A personol computer is often o repository for privofe informofion the computer's owner does not
intend to shore with others.

IFlor most people, their computers ore their most private spoces. People commonly
35

folk qbouf the bedroom OS o very private spoce, yet when they have ponies, o11 the guests - including perfect strongers - ore
invited to toss their cools on the bed. Buf if

one of those guests is coughf exploring the host's computer, that will be his lost in vitalion. United Stores v. Gourde, 440 F. 3d 1065, 1077 (9th Cir. 2006) (en bone) (Kleinfeld, J. , dissenting). See generolly Onn S. Kerr, Seorches Grid Seizures in o Digitol World, I I9 Horv. L. Rev. 531,569 (2005) ( 'IClompufers ore ploying on ever greofer role in doily life Grid ore recording o growing proportion of if. . . . [T] hey ore postol services, ploygrounds, Iukeboxes, doting services, movie the ofers, doily PIOnners, shopping in o11s, personol
secretories, virfuol diories, Grid more. EQch new

softwore OPPlicofion me ons on other OSpecf of our lives monitored Grid recorded by our computers. '). Becouse
innmofe information is commonl cote or OS suitcoses stored on coin ufers if or other ersonal seems rioturql Ihof coin ufers should foll into the some foollockers
rivoc o hi h de ree of Solinos-Con0, 959 F. 2d of 864. " tEmphosis Grid

items that 'commond

underscoring suppliedI Further, in KGfz v. ' United Sidles, supro, the United Sfofes

Supreme Court held Ihof o person hos o reosonoble expectofior\ of

.

privocy over prtvofe coinmunicofions except whof o person Is;^^ exposes to the public: "For the Fourth Amendment protects people, not

1010ces. Whqf o person knowing Iy exposes to the public,

even in his own home or office, is riot o subject of Fourth

Amendment projection. See Lewis v. United Stores, 385 U.

S. 206,210; United Stores v. Lee, 274 U. S. 559,563. But
whof he seeks 10 qccessible to the
reserve OS

rivofe
inO

even In on Oreo

ublic

be

constitution o11

12:9t^^ See Rios v. United Stores, 364 U. S. 253; Ex porte Jockson, 96 U. S. 727,733. "
The

Cybercrime Prevention

Act o110ws

low enforcement

outhorifies to monitor Grid record froffic doto OSsociofed with

specified coinmunicofions Ironsmiffed by

me ons

of o computer

36

system. "Troffic Doto" is defined under Section 12 of the Cybercrime

Prevention informofion: Act
OS

supposedly limiting itself to non-content

"Troffic dojo refer only to the coinmunicofion 's origin, desfinofion, route, time, dote, size, durofion, or type of underlying service, but not content, nor
identifies. "

Notobly, Section 3(10) of the Cybercrime Prevention Act cotegoricolly defines Troffic Doto OS non-content dojo, Yet if does
not limit the some to the enumerofion conjoined therein:

" (p) Troffic doto or non-content dojo refers to ony computer dojo other Ihor\ the content of the
coinmunicofion includin but riot limited to, the

coinmunicofion's origin, desfinofion, route, time, dote, size, durofion, or type of underlying service.

The dichotomy of the foregoing provisions notwifhsfonding, Section I2 of the Cybercrime Prevention Act violofes the constitution o1 right to prtvocy Grid of prtvocy of coinmunicofion Grid correspondence. 'To reiferofe, on individuol loses his right to privocy over electronic doto only when one intends the some to be mode public. Likewise, in Guest v. Lets, 225 F. 3d 325,333 (6th Cir. 2001 ), the United Stores Court of APIoeols for the Sixth Circuit held Ihof informofion volunforily conveyed to o systems operofor is outside the scope of the reosonoble expectofion of prtvocy: "Courts hove OPPlied this principle to computer seorches Grid seizures to conclude fhof computer users do not hove o legifimofe expectofion of 10nvocy in their

subscriber informalion be couse they hove conveyed if

37

to on other person-the system o10erofor. See MOXwell, 45 M. J. of 4/8; United Stores v. Kennedy, 81 F. SUIop. 2d I I 03, I I I 0 (D. Kon. 2000) (rejecting o prtvocy interest in
subscriber informofion coinmunicofed to on internet

service provider) "

Cleorly, from the foregoing, o11 individuol loses his reosonoble expectofion of prtvocy only when there is o volunfory oct of disclosing the some.

In the cose of hond, even in the event Ihof rTo such volunfory oct exists, low enforcement oathorifies ore gronfed unbridled

discretion to monitor Grid record froffic doto despite the lock of relinquishment of on individuol's reosonoble expectofion of prtvocy
over the some.

An individuol's froffic dojo is vosfly different from subscriber

dojo, or even emoil oddresses, which on individuol volunforily

discloses in the course of utilizing electronic medio. Most individuols reosonobly expect Ihof their electronic Ironsocfions or
.

coinmunicofions sent from the soncfify of their own homes Grid

personol electronic coinmunicofion devices to vet which there is o

recognized reosonoble expectofior\ of privocy) sholl reinoin 10nvofe
Grid in violoble.

Pertinently, in United Stores v. Worshok, 631 F. 3d 266 (6th Cir.

2010), if wos ruled Ihof even emoil Ihof posses through o third pony Internet Service Provider ( "ISP") is still covered joy the protection of
the right to privocy:

"In confronting this question, we toke note of two bedrock principles. First the ver foci that information is

38

bein

OSsed fhrou h o communications network is o

oromounf Fourth Amendment considerchion. See ibid. ;

United Stoles v. U. S. Disf. Court, 407 U. S. 297,313 (1972)

( 'in he brood Grid unsuspected government o1 incursions into conversofionol prtvocy which electronic surveillonce enjoils necessifofe the OPPlicofion of Fourth Amendment sofeguords. '). Second, the Fourth Amendment must kee
oce

wifh

the

ro ress

or its

in exoroble march of technolo icol uoronfees will wither Grid erish. See

Kyllo v. United Stores, 533 U. S. 27,34 (2001 ) tooling Ihof

evolving technology must not be permitted to 'erode the privocy guoronfeed by the Fourth Amendment' ); see GISO Onn S. Kerr, Applying the Fourth Amendment to the Internet: A Generol Approoch, 62 SIGn. L. Rev. I 005, I 007 (2010) (orguing Ihof 'the differences between the focis of physicol spoce Grid the focis of the Internet require courts to identify new Fourth Amendment distinctions to
mornfoin the function of Fourth Amendment rules in on

online environment' ).
XXX

If we occepf Ihof on emoil is origlogous to o letter or q phone coll, if is indriifesf Ihof o9enls of the government connof compel o coinmerciol ISP to turn over the contents of on emoil withouf triggering the
Fourth Amendment. Art ISP is the informediory Ihof in okes

emoil coinmunicofion possible. Ernoils must poss through on ISP's servers to reoch their intended recipient. Thus, the ISP is the function o1 equivolenf of o post office or o telephone company. As we hove discussed obove, the police inoy riot storm the post office ond intercept a letter, Grid they ore likewise forbidden from using the phone system to ingke o CIOndesfine recording of o telephone coll - unless they get o worronf, fhof is. See Jocobsen, 466 U. S. of I I4; Koiz, 389 U. S. of 353. If only SIGnds to reoson Ihof, if government o9enfs compel on
ISP to surrender the contents of o subscriber's emoils,

those o9enfs hove thereby conducted o Fourth Amendment seorch, which necessifofes coinplionce with the worronf requirement obsenf some exception. " [Emphosis Grid underscoring supplied] Although, through the dichotomy, the Cybercrime Prevention Act in okes o feeble onempf to ovoid uriconsfifufionolify, the some is
still violofive of the Constitution. Section 12 stoles Ihof the content

39

Gild identify of the porticiponfs to the intercepted froffic doto shoji

neither be monitored nor recorded. Nevertheless, froffic doto

encomposses the origin, desfinofion, route, time, dote, size, durofion,

or type of doto. Once such doto is ocquired, if becomes eosy for low enforcement outhorifies to verify identifies through other methods. The ocquisifion of such doto is the criticol jump-off point for violofions of on individuol's right to privocy.
Worse, Section 12 of the Cybercrime Prevention Act o110ws the collection or recording of froffic dojo connected to "specified coinmunicofions". No definition is provided with respect to the scope of "specified coinmunicofions". If this were token to me on Ihof low enforcement outhorifies possess o suspicion OS to the noture of the coinmunicofions, or the identify of the porties which they connof subsfonfiofe, then the 90thering of dojo relofing to the origin, desfinofion, route, time, dote, size, durofion, or type of such doto would be in the noture of o fishing expedition which connof be countsnonced by the Honoroble Court. tRoxos v. MocopogolArroyo, 630 SCRA 21 I (2010)l
Moreover, the distinction mode fhof doto other fhon froffic

doto to be seized or disclosed sholl require o court worronf is nothing more thorn o poper distinction Ihof connof serve to protect on individuol's reosonoble expectofion to prtvocy. To reiferofe, once low enforcement outhorifies ocquire the origin, desfinofion, route, time, dote, size, durofion, or type of doto, the content or identifies of the ponies ore eosily ventioble through other me ons. Consequently,

40

the requirement of o court worronf to determine "non-fromc" doto hos been rendered rTugofory.

Finolly, if ' is orguoble Ihof in Gionfy of the users of electronic

medio, such OS the internet, ore unowore Ihof their messoges or

Ironsocfions coaloin froffic dojo, which under the Section I2 of the

Cybercrime Prevention Act, inoY be monitored by low enforcement outhorifies under the convenient justificofion of "due couse".

The Constitution protects not only content Grid identity but o11 incidents/OSpecfs of coinmunicofion Grid correspondence, including who o person chooses to folk to, how long fhof chooses to correspond with them, the monmer by which they converse or correspond, Qinong others, Thus, the whole process of coinmunicofion Grid correspondence is zeolously protected by the Constitution Grid con only be curioiled by lowful worronf upon proboble couse. Thof ' s precisely the sofeguord provided for by the Iudiciol process, which the Assoiled Provisions 1010/1y disregord. There being no relinquishment of the reosonoble expectofion of privocy over the some, froffic doto connof be subjected to seizure by low enforcement outhorifies under the flimsy excuse of "due couse" OS on individuol hos o reosonoble expectofion of 10nvocy over the some. Everyone hos o right to prtvocy, coinmunicofion Grid correspondence Ihof should be respected.

41

B.

Sealion 12 Of The Cybercrime

Prevention Act Constitutes An Unreosonoble Government

Intrusion As If Locks Sofeguqrds Against Possible Abuses By

Possessors Of AC uired Dojo

With o11 due respect, if is submitted Ihof Section 12 of the Cybercrime Prevention Act constitutes unreosonoble Government intrusion info on individuol's right to prtvocy Grid of prtvocy of coinmunicofior\ Grid correspondence OS if locks ony sofeguords whoisoever ogoinsf possible obuse of the dojo ocquired. In Ople v. Torres, supro, the Honoroble Court held Ihof the obsence of sofeguords for the potentiol misuse of dot0 90thered through government regulofior\ is o potentiol fhreof to the Bill of Rights. Likewise, indefinite ness OS to the purpose of the doto to be
.

90thered will give rise to potentiol obuses by outhorifies. In sold cose, Adminisfrofive Order No. 308 required the use of biomefric SCOnners to record o11 government Ironsocfions of on individuol. The Honoroble Court held Ihof the obsence of guidelines Grid sofeguords constitutes o violofior\ of the right to prtvocy: "x x x Considering the bonquef of options ovoiloble to the implementors of A. 0. No. 308, the fedr Ihof if
fhreofens the ri hf to
.

rivoc

of

our

eo re is riot

gr^.
x x x This is on odinission Ihof the PRN will not be

used solely for idenfificofion but for the generofior\ of other doto with remote relofion to the ovowed purposes
the indefinite ness of A. 0. No overninenf the rovin outhorif to 308 con ive Ih e store Grid retrieve information for o or OSe other Ihon the idenfificofion of the individuol Ihrou h his PRN. of A. 0. No. 308. Cleorl

42

The potentiol for misuse of the dojo to be 90thered under A. 0. No. 308 connof be underployed OS the
dissenters do. Pursuonf to soid odininisfrofive order, on

individuol must present his PRN everytime he deols with o government o9ency to ovoil of bosic services Grid

security. His Ironsocfions with the government o9ency

whether if be in the will necessorily be recorded computer or in the document ory file of the o9ency. The individuol's file inoy include his IronsocfiorIs for loon

ovoilmenfs, income fox returns, stolemenf of OSsefs Grid

Iiobilifies, reimbursements for medicalion, hospifolizofion, etc. The more frequent the use of the PRN, the better the chonce of building o huge Grid formidoble informofion bose through the electronic linkoge of the files. The dojo inoy be gothered for goinful ond useful government
purposes; buf the existence of this vosf reservoir of

personal informalion conchfufes q covert invitation to misuse, o tempfofion that inoy be too greol for some of
our guthorifies 10 resist.

In the instonf cose, even o cursory perusol of Section 12

reveols o deorfh of informofior\ OS to whof purpose the dojo

90thered sholl be used for. Nowhere in Section 12 con be seen the limits of the use of the dojo 90thered by low enforcement outhorifies. Simply put, under Section 12, low enforcement outhorifies ore given the unrestroined power to secure dojo for wholever purpose they inoy deem fit. This is potently confrory to the Honoroble Court's pronouncement in Ople v. Torres, supro. Notobly in Ople v. Torres, supro, the offending low likewise onempfed to in oke o distinction between certoin forms of dojo without specifying how such doto sholl be segregofed. To this, the
Honoroble Court ruled thus:

ronf qr uendo Ihof the coin ufer doto file will be limited to the nome oddress and other bosic ersonol informalion obouf the individuol Even Ihof hos ifoble OSsum lion will riot sove A. 0. No. 308 from constitution o1 infirmii for o Qin soid order does nof
We con even

43

fell

us

In

cleor and

cafe on col

Ierms

how these
.

othered sholl be hondled If does nof rovide who sholl control ond occess the dojo under whof circumsfonces ond for whol or OSe. These fociors qre essenfiol to sofe uord the rivoc Grid uorqnl the
informofion
.

infe in

of the informalion. Well to note, the computer linkoge gives other government o9encies occess to the informofion. Yet, there ore no controls to guard ogoinsf ledkoge of information. When the occess code of the control progroms of the porticulor computer system is broken, on intruder, without feor of soncfion or perlolfy,
con in oke use of the doto for whofever purpose, or

worse, monipulofe the dojo stored within the system. " [Emphosis Grid underscoring supplied]

Applying the foregoing to the instonf cose, Section I 21ikewise onempfs to distinguish between froffic Grid non-froffic doto without providing the procedure of segregofing the some. Moreover, the Cybercrime Prevention Act is bereft of
;

sofeguords to control the occess Grid hondling of such doto. Neither does the Cybercrime Prevention Act guoronfee the integrity of such doto, nor does if provide me OSures ogoinsf possible Ieokoge of
informofion.

From the foregoing, if is cleor the Ihreof of potentiol obuse emunciofed in Ople v. Torres, supro, is likewise extortf in the Cybercrime Prevention Act. Section 12 thereof, if left. unobofed, would invite potentiol misuse of dot0 90thered ond soncfion violofions of the right to 10nvocy. Thus, Section 12 is on unworronfed Government intrusion into on individuol's reosonoble expectofion of prtvocy Grid should, therefore, be struck down Grid declored
uriconsfifufionol.

44

C.

Section 12 Of The Cybercrime

Prevention Act Constitutes An Unreosonoble Government

Intrusion As If Renders Existing Sofeguqrds Agqinsf Invosion Of As Well As Privocy,

Communications
Corres on dence Nu of or And

The Honoroble Court hos conclusive Iy ruled Ihof the right to prtvocy is protected not only by the Constitution, but by sfofufory low OS well. In Morquez' v. Desierf0, 359 SCRA 772 (2001 ), the
Honoroble Court held thus:

"Zones of

rivoc

ore reco nized ond

rolecfed in

our laws. The Civil Code provides that "telvery person shoji respect the dignify, personolify, privocy Grid peoce of mind of his neighbors grid other persons" ond punishes OS octionoble torts severo1 octs for meddling Grid prying into the privocy of qnofher. If also holds o public officer or employee or ony privofe individuol lidble for do mages for ony violation of the rights ond liberties of another person, grid recognizes the privocy of lefters ond other private communications. The Revised Fengl Code in okes o crime of the violation of secrets by on officer, the revelation of Irqde Grid in dustriol secrets, Grid Iresposs to dwelling. Invosion of privocy is on offense in special lows like the Anti-Wirefopping Low, the Secrecy of Bonk Deposits Act, ond the Intellectuol Properly Code. " IEmphosis ond underscoring suppliedI

Moreover, the provisions on the Rules of Court regording the 10nvocy or confidentiolify of certoin informofion ore o form of protection of on individuol' s right to privocy. [Ople v. Torres, supro] In light of the importonce 1010ced on on individuol's right to 10nvocy, the Honoroble Court hos promulgofed A. M. No. 08-l -16-SC,
or the Rule on the Writ of Hobeos Doto. Section I of the some stores

45

Ihof the writ of hobeos doto is o remedy ovoiloble to persons whose right to prix^y in life, liberty or security is Ihreofened:
"Section I . Hobeos Dojo. - The writ of hobeos doto

is o remedy ovoiloble to ony person whose !jg!!t_t9 I^riy:^, in life, liberty or security is violofed or threatened by on unlowful oct or omission of o public Qinciol or employee, or of o private individuol or entity engoged in the gathering, collecting or storing of do to or information regording the person, fomily, home grid correspondence of the o99rieved pony. " tEmphosis Grid underscoring suppliedl

In Rodriguez v. Mocopogol-Arroyo, 660 SCRA 84 (201 I ), the Honoroble Court exploined Ihof the writ of hobeos dojo is o remedy to protect o person 's right to control informofion regording oneself. If is o remedy to protect informofionol prtvocy:

"Me on while, the writ of hobeos doto provides o judiciol remedy to protect o person's right to ' control information regording oneself, pqrticularly in instonces
where such information is bein collected Ihrou h unlawful means in order to ochieve unlowful ends. As on

independent grid summory remedy to profecl the righf to privocy - especiolly the right to information o1 rivoc the proceedings for the is SUGnce of the writ of hobeos doto does not entoil ony finding of criminol, civil or odininisfrofive CUIpobilify. If the o11egofions in the petition ore proven through subsfonfiol evidence, then the Court
.

inoy (0) gronf occess to the dotobose or informofion; (b)

enjoin the oct coinploined of; or (c) in cose the
dotobose or informofior\ confoins erroneous dojo or

informofion, order its deletion, destruction

recfificofion. "

or

Section 12 of the Cybercrime Protection Act renders the

remedy of the Writ of Hobeos Doto nugotory Grid irrelevonf. To

reiferofe, the Writ of Hobeos Dojo seeks to prevent the unworronfed intrusion of public officiols, such OS low enforcement outhorifies, info one ' s privofe informofion, Yet Section 12 of the Cybercrime
46

Protection Act o110ws low enforcement outhorifies to collect Grid

monitor froffic dojo on the flimsy justificofion of "due couse".

Cleorly, the Cybercrime Protection Act soncfions the evils which the
Writ of Hobeos Dojo seeks to prevent. Moreover, OS discussed, there is no limitofior\ present under Section 12 of the Cybercrime Prevention Act with regord to the

purpose of the collection Grid monitoring of froffic doto, OS well OS

the o110woble ends within which low enforcement outhorifies inoy utilize such seized doto. If does not require o stretch of logic to conclude Ihof nothing in Section 12 of the Cybercrime Prevention Act hinders low enforcement outhorifies from potentiolly using 90thered doto to pepefuofe violofions ogoinsf on individuol' s right to privocy with respect to life, liberty, Grid security.
I

Finolly, the Writ of Hobeos Doto seeks to protect individuols from Ihreofs to the right to privocy in life, liberty or security from unlowful Gals of public officiols. Section I2 of the Cybercrime Prevention Act is wholly coalrory to the foregoing since if provides government soncfion to octions of low enforcement outhorifies,
which would otherwise be on unlowful intrusion into on individuol' s

right to privocy. From the foregoing, if is cleor fhof Section 12 of the Cybercrime Prevention Act seeks to render the Honoroble Court's loudoble octions to sofeguord on individuol's right to 10nvocy mugofory. This connof be counterTonced Grid thus Section 12 of the Cybercrime Prevention Act must be struck down.

47

11.

Section I2 Of The Cybercrime Prevention Act Is Patently Uriconsfifufionol Considering That If Violates An Individuol's Right To
Unreosonoble Seorches And Seizures.

Section 2, Article 111 of the Constitution, which is recognized OS o form of protection of on individuol's right to privocy, provides the sfondord of proboble couse before seorches Grid seizures inoy be
conducted:

Sec. 2. The right of the people to be secure in their persons, houses, popers, Grid effects ogoinsf
unreosonoble seorches Grid seizures of whofever noture

Grid for ony purpose sholl be in violoble, Grid no seotch worronf or worronf of orrest sholl issue except upon proboble couse to be determined personolly by the judge offer exominofion under oofh or offirmofion of the coinploinonf Grid the witnesses he inoy produce, Grid porticulorly describing the PIOce to be seorched Grid the persons or things to be seized. Proboble couse hos been defined OS "o reosonoble ground of suspicion supported by circumstonces sufficiently strong in themselves to induce o coufious mon to believe Ihof the person occused is guilty of the offense chorged. " tPeople of the Philippines v. Ton, 634 SCRA 773 (2010)l Pertinently, Section 12 of the Cybercrime Prevention Act o110ws
low enforcement- outhorifies to collect or record on individuol' s

froffic doto upon the existence of "due couse". However, the terms "collect" Grid "record" ore, in reality, euphemisms for "seizure without due process of low". Thus, the foregoing is potently confrory to the constitution o1 protection o901nsf unworronfed seorches Grid
.

seizures.

48

First of o11, neither the Cybercrime Prevention Act, nor other

pertinent lows, define "due couse". Thus the obsence of o sfondord
of "due couse" allows low enforcement outhorifies to determine for

themselves whether or not the recording or collectin'g of doto is

necessory or lowful. Moreover, the possibility exists Ihof low

enforcement outhorifies inoy set o sfondord for below the SIGndord of proboble couse for the seizure of doto under Section 12.

Further, OS initiolly discussed, the seizure of dojo espoused under Section 12 is not on chored on o specific purpose for the collection of the some. Section I2 does not stole the purpose for the seizure or use of such doto, e. g. for criminol prosecutions, etc. The consequence of the foregoing is Ihof low enforcement oathorifies ore gronfed nigh unlimited justificofion to intrude upon o person 's

right to prtvocy. This unbridled discretion gronfed to low

enforcement outhorifies effectiveIy deprives on individuol of his constitution oily OSsured protection ogoinsf unworronfed seorches Grid seizures, OS well OS his constitution o1 right to prtvocy Grid the privocy of coinmunicofion Grid correspondence. Moreover, Section 12 of the Cybercrime Prevention Act o110ws

the redl-lime monitoring Grid seizure of froffic dojo. In light of the unchecked discretion gronfed to low enforcement outhorifies to
determine for themselves whether there exists o justificofion for resort

to Section 12 of the Cybercrime Prevention Act, if opens the possibility ' to 2417 surveillonce by low enforcement outhorifies
I
\

without proboble couse OS justificofion for the some. This cleorly

49

constitutes on untoword intrusion info on individuol's right to privocy Grid the privocy of coinmunicofion Grid correspondence.

From the foregoing, the vogue SIGndord of "due couse" connof in ony woy whofsoever substitute for the recognized SIGndord of proboble couse found in the Constitution without violofing on individuol's right ogoinsf unreosonoble seorches Grid
.

seizures, OS well OS his right to prtvocy Grid the coinmunicofion Grid correspondence.

10rivoCy

of

The other provisions of the Cybercrime Prevention Act Ihof

flow from the Assoiled Provision likewise suffer the some fofol flow,

including the provisions Ihof outhorize the disbursement of public funds for the implement of ion of the low.
1/1 .

Section 19 Of The Cybercrime

Prevention ACf Is Null And Void For

Being Uriconsfifulionol Considering That: A. Section 19 Of The Cybercrime

Prevention Act Is Violafive Of The Due Process CIOuse Under Section

I, Article 111 Of The Constitution,

For Foiling To Provide Any Procedurol Sofeguqrds In Its And/Or Implementchion

Enforcement.

At the outset, Section 19 of the Cybercrime Prevention Act

must be struck down for being uriconsfifufionol. Among others, if violofes the due process CIOuse found under Section I , Article 1/1 of
the Constitution, which provides:

50

"Section I . No person sholl be deprived of life, liberty or property without due process of low, nor shoji oily person be denied the equol protection of the lows. " In relofior\ to the instonf Petition, Section I9 of the Cybercrime Prevention Act porticulorly violofes procedurol due process. Procedurol due process simply me Gins procedurol foirness. In the eorly cose of Lopez v. Director of Londs, 47 Phil. 23,32 (1924), procedurol due process hos been fitting Iy oniculofed to me on o
"low which he ors before if condemns".

Although odiniffedly the requirements of procedurol due

.

process inoy differ depending on the kind of proceeding, i. e. Iudiciol or quosi-Iudiciol, no one con deny the he on of due process

is to provide o person o reol Grid genuine (OS opposed to illusory)

opportunity to be he ord Grid present his or her side.

Even o cursory 910nce of the Cybercrime Prevention Act reodily reveols Ihof if does not provide oily procedurol rules Grid
SIGndords on how Section 19 sholl be enforced, much less ony

procedure OS to how persons offecfed or o99rieved by the implement chion Grid/or enforcement inoY be he ord in their defense. This will simply Ieove the DoJ with unbridled discretion to issue orders restricting Grid/or blocking occess to computer doto Ihof alleged Iy ore in primo focie violofion of the Cybercrime Prevention Act, without, however, giving the owners of soid forgeted computer dojo even on job of opportunity to exploin why soid computer
dojo should not be restricted Gild/or blocked.

51

,.

Interesting Iy, the quonfum of evidence required under Section 19 of the Cybercrime Prevention Act to set into motion the outhorify given to the DoJ to issue restricting Grid/or blocking occess to computer dojo is only the very low sfondord of primo focie evidence. If is of no secret Ihof primo focie evidence is the lowest Qinong the hierorchy of quonfum of evidence needed to susfoin volid o decision or oction on the port of the government. In fine, this Honoroble Court hos defined primo focie evidence OS "evidence which, if unexploined or uriconfrodicfed, is sufficient to susfoin o judgment in fovor of the issue if supports, but which inoy be confrodicfed by other evidence". IWo-ocon v. People of the Philippines, 510 SCRA 429 (2006) I Although primo focie evidence inoy be coalrodicfed by other evidence, if inoy very well be relferofed with the risk of being redundonf Ihof- there ore octuolly r10

procedurol sofeguords in the Cybercrime Prevention Act through which the offecfed or o99rieved persons inoy present such
confrodicfing evidence. Hence, with such low degree of evidence required, coupled

with the obvious deorfh of procedures in the Cybercrime Prevention

Act
On

how the persons offecfed or o99rieved by its

implement of ion could contest or confrodicf such primo focie evidence, there is cleorly no doubt fhof the DoJ hos now been given omnipotent power in issuing orders restricting Grid/or blocking . occess to computer doto. In this regord, the DoJ con virfuolly bring
down ony

website if deems unoccepfoble under the o11-

encompossing pretense of "primo focie evidence , without regord

OS to whether the o99rieved porty hos been oble, much less given o

52

reol opportunity, to present his side Grid defend himself. There con never be o justificofion for the menoce to Gild the Ihreof of obridging the most cherished Grid Ieolously guorded fundomenfol
J

civil rights, porticulorly in this instonce the right of the people to due
process,

which Section 19 of the Cybercrime Prevention Act

mevifobly creoles. Thus, in view of the foregoing Gione, Section 19 of the Cybercrime Prevention Act should be struck down for violofing the
Due Process CIOuse of the Constitution.

The other provisions of the Cybercrime Prevention Act Ihof

flow from the Assoiled Provision likewise suffer the some fobl flow,

including the provisions Ihof oathorize the disbursement of public

funds for the implement oilon of the low.
B.

Section 19 Of The Cybercrime

Prevention Act Is Violafive Of The Of Citizens Agoinsf Right Unreosonoble Seorches And

Seizures, As Provided Under Section 2, Article in Of The

Constitution.

Section 19 of the Cybercrime Prevention Act should likewise

be deciored null Grid void for being violofive of Section 2, Article 1/1
of the Constitution, which provides: "Section 2. The right of the people to be secure in

their persons, houses, popers, Grid effects ogoinsf

unreosonoble seorches Grid seizures of wholever motore

Grid for oily purpose sholl be in violoble, Grid no seorch worronf or worronf of orresf sholl issue except upon

proboble couse to be determined personolly by the judge offer exominofion under oofh or offirmofion of the

53

coinploinonf Grid the witnesses he inoy produce, Grid porticulorly describing the PIOce to be seorched Grid the persons or things to be seized. "

If is cleor from the foregoing provision fhof seorch Grid seizure worronfs inoy only be issued ^.){_9.1\^^. offer pers(>in o11y determining
the existence of

roboble couse by exomining the coinploinonf

Grid the witnesses he inoy produce. Section 19 of the Cybercrime Prevention Act cleorly violofes this constitution o1 provision. As if SIGnds, Section 19 of the Cybercrime Prevention Act
outhorizes the DoJ to issue on order to restrict Grid/or block occess

to computer doto Ihof ore primo focie in violofior\ of the some low. If must be pointed out Ihof restricting Grid/or blocking occess to computer doto hos o very similor, if not the some, effect of seizing the forget doto. In essence, by restricting Gild/or blocking occess to computer doto, the outhor thereof is deprived of his ownership over his intellectuol creofion or his 'copyright over the dojo, while the owner or proprietor of the medio where if wos disployed, i. e. owner of o website, is deprived of his right to operofe such site - both in the some monner fhof on owner of o physicol/tongible thing or object seized is deprived of his rights over soid object. Thus, before restricting or blocking occess to computer doto must be outhorized, the requirements for volid seizures OS mondofed under Section 2, Article 111 of the Constitution must be present Grid complied with.

In this regord, Section I9 of the Cybercrime Prevention Act is cleorly violofive of Section 2, Article 111 of the Constitution, since if outhorizes the is SUGnce of o seizure worronf under the following circumsfonces: (I ) is SUGnce by o person, other Ihor\ g_. 112. ^. g. ^.; (2)
54

is SUGnce on the bosis of only o

rimo focie showing, insteod of o

finding of proboble couse, of ony violofion of the provisions of the

Cybercrime Prevention Act; Grid (3) is SUGnce without the required

exominofion under oofh of o coinploinonf Grid the witnesses Ihof inoy be produced. Obviously, the strict sofeguords ogoinsf unreosonoble seizures protected under the Constitution hove been completely disregorded, or worse, entirely eliminofed. Thus, on this score, Section 19 of the Cybercrime Prevention Act should be odjudged uriconsfifufionol Grid of ino legol effect whoisoever.
C.

Section 19 Of The Cybercrime

Prevention Act Is Violoiive Of The

Right Of The People To Freedom

Of Speech, As Provided Under Sealion 4, Article in Of The
Constitution.

Likewise, Section 19, in relofior\ to Section 4(c) (4), of the Cybercrime Prevention Act, runs ofoul with the constitution o11y protected freedom of speech, porticulorly OS if constitutes prior
restroinf. Prior restroinf hos been defined Grid understood OS "official

government o1 restrictions on the press or other forms of expressions in odvonce of octuol publicofion or disseminofion. x x x The mere prohibition of governmenf interference before words ore spoken or published would be on in odequofe protection of the freedom of expression if the government could punish without restroinf offer publicofion. x x x Hence, the guoronfee of freedom of expression
.

GISo me Gins o limitofior\ on the power of the stole to Impose

55

subsequent punishment. " tJOGquin 'G. Be in OS, SJ, The I 987

Constitution of the Philippines: A Comment ory (2009 ed. ), of p. 2531 Section 19 of the Cybercrime Prevention Act is undeniobly prior restroinf, in the form of subsequent punishment, i. e. , the DoJ 's is SUGnce of orders restricting or blocking occess to computer dojo. This would definitely hove o chilling effect on petitioners Gild citizens, thereby effective curioiling Grid rendering nugofory the constitution o11y sofeguorded right to freedom of speech Grid of
.

expression.

In reolify, no moner how innocent the wording of the low inoy

be, Section 19 stifles o person's voice Grid covers his eors. If is o Cyber Gog Rule Ihof cuts off individuols from one on other. If silences the originofor of coinmunicofion Grid prevents the intended recipients from he Gring the
messoge,

without regord for its

legifimocy Grid protected noture under the Constitution. As such, Section 19 is o euphemism; the Government is octuolly felling its citizens to shut-up. If looks benign but, in reolify, if me Glis curioilmenf of the most cherished Grid Ieolously guorded civil rights under the
Constitution.

In Chavez v. Gonzoles, 545 SCRA 441 (2008), the Honoroble Court CIOrified Ihof o low which hos on effect of prior restroin is
I

presumed to be uriconsfifufionol Grid the government the government be ors o heovy burden of proving its constitutionality. Needless to stole, courts should only susfoin the constitution o1ify of low constituting prior restroinf only if there is o showing fhof o compelling stole interest necessifofing such prior restroinf, viz. :

56

"Only unprotected expression inoy be subject to

prior restroinf. However, ony such prior restroinf on unprotected expression must hurdle o high borner. First,
such prior restroinf is
the

resumed uriconsfifulionol. Second,

rovin

overrimenf bedrs q heov burden of constitution Qin of the nor restroinl.

the

Courts will subject to strict scrutiny oily government octior\ imposing prior restroinf On unprotected expression. The government oction will be sustoined if there is q compelling Stole interest, ond prior restroinf is necessory to project such Stole interest. In such o cose, the prior restroinf sholl be norrowly drown - only to the

extent necessory to protect or o110in the compelling

Sfofe interest. " tEmphosis Grid underscoring suppliedI

In OPPlying the foregoing doctrines to the instonf Petition,

there is cleorlY r10 showing of ony stole interest sufficient to compel

Grid worronf up holding of the prior restroinf, which Section I9 of the Cybercrime Prevention Act operofionolizes. Me OSured even by this SIGndord o10ne, the Assoiled Provisions of the Cybercrime Prevention Act foils to poss constitution o1 scrutiny.
IV.

Sections 4(c)(4), 5, 6, And 7 Of The Cybercrime Prevention Act Are Null And Void For Being Uriconsfifufionol Considering Thof Soid Provisions Are
Violafive Of The Due Process CIOuse

Under Section I, Article 111 Of The

Consfifufion And Of The Free Speech

CIOuse Under Section 4, Article 1/1 Of The
Consfifufion.

Section 4(c) (4) of the Cybercrime Prevention Act broodens the definition of libel provided in Article 355 of the Revised Penol Code, OS omended. Notobly, soid provision odds the use of computer system or ony other similor me oils Ihof inoy be devised in the future OS me ons of committing the crime of libel. Axiomoficolly,

57

the complexity of the cyber world connof be disregorded Grid be

put on the some footing OS the convention o1 me ons of committing

libel under the Revised Penol Code. Otherwise sloted, the elements

of libel connof find OPPlicofion in the computer reolm in the obsence of specific definitions to govern the some. Section 4, Article 1/1 of the Constitution provides: "Section. 4. No low sholl be possed obridging the freedom of speech, of expression, or of the press, or the right of the people peoceobly to OSsemble Grid petition
the government for redress of grievonces. "
In Chovez the Honoroble

V.

Gonzoles,

s upro ,

Court

emphosized the importonce of this constitution o1 guoronfee:

"Freedom of expression o110ws citizens to expose

Gild check obuses of public officiols. Freedom of expression o110ws citizens to in oke informed choices of condidofes for public office. Freedom of expression crysfollizes importonf public policy issues, Grid o110ws citizens to porticipofe in the discussion Grid resolution of
such
Issues.

Freedom of

expression

allows Ihe

competition of ideos, the CIOsh of CIOims Grid counterCIOims, from which the truth will likely emerge. Freedom of expression o110ws the Girlng of SOCiol grievonces, mmgofing sudden eruptions of violence from in orginolized groups who otherwise would not be he ord by government. Freedom of expression provides o civilized woy of engogemenf Qinong politicol, ideologicol, religious or ethnic opponents for if one connof use his tongue to orgue, he might use his fist
.

insteod. "

Veiny, the Free Speech CIOuse prohibits 100th prior restroinf Grid subsequent punishment Ihof hove the effect of unduly curioiling expression. This includes the "chilling effect" on protected speech Ihof comes from slotufes violofing free speech. Truly, o person who

58

does not know whether his speech constitutes o crime or whether he will be prosecuted by the Government under on overbrood or vogue low inoy simply refuse to speok to ovoid being chorged of o

crime. The chilling effect results in deofening silence. This is exocfly

whof Sections 4(c) (4), 5 Grid 6 of the Cybercrime Prevention Act ' perloefuofe to the delrimenf of petitioners' most cherished Grid jeolously guorded civil rights under the Constitution.
Petitioners do not doubt the intention of the low-in okers in

possing the Cybercrime Prevention Act. Petitioners ore fully owore of the obuses Grid crimes which they intent to curioil such OS child pornogrophy Grid computerrelofed froud, which they SLIPporf completely. But the Government should not get oheod of itself Grid declore "mothol low" within the cyber reolm. Petitioners connof emphosize enough Ihof in this technologic01 o9e, o1mosf everyone is connected through computer systems, be it through the internet . or OPPlicofions in mobile phones. Sodly, the provisions of the low tend to defer the technologicolly odvonced populofior\ from moving forword.
Article 353 of the Revised Penol Code, OS omended, defines

libel, to wit:

"Art. 353. Definition of libel. - A libel is o public Grid in o1icious impufofion of o crime, or of o vice or defect, reol or jinoginory, or ony oct, omission, condition, slotus, or circumsfonce tending to couse the dishonor, discredit, or contempt of o noturol or luridicol person, or to blocken the memory of one who is deod. " To be Iioble for the crime of libel, the following elements must be shown to exist: (0) the o11egofior\ of o discreditoble oct or
59

condition concerning o1/01her; (b) publicofion of the chorge; (c)

identity of the person defomed; Gild (d) existence of in o1ice.

[Brillonfe v. Court of Appeols, 440 SCRA 541 (2004)] Further, Article 355 of the Revised Penol Code provides Ihof libel is committed by
me ons

of writing, printing, lithogrophy, engroving, rodio,

phonogroph, pointing, the Qincol exhibition, cinemofogrophic

exhibition or onY similor me Gins. After the possoge of the Cybercrime Prevention Act, odded to the list is the use of computer systems Grid SImilor me ons OS inoy be devised in the future:

" (4) Libel. - The unlowful or prohibited octs of libel

OS defined in Article 355 of the Revised Penol Code, OS omended, committed Ihrou h o coin ufer s sfem or
on

other similor medns which ino

be devised in the

future. " tEmphosis Grid underscoring suppliedI

Computer system on the other hond is defined in Section 3 of the Cybercrime Prevention Act OS "ony device or group of inferconnected or relofed devices, one or more of which, IOUrsuonf to o progrom, performs outomofed processing doto. If covers ony type of device with dojo processing copobilifies including, but not limited to, computers Grid mobile phones my. " Prooficolly, computer system covers blogs, Focebook, Twitter Grid other plotforms for SOCiol medio interQcfion. However, how ore the elements of libel OPPlied in the use of computer systems;^ For instonce, whof constitutes publicofion? Is posting o slotus or comment on Focebook, considering fhof only Your friends will see them, considered publicofion? Does liking, refweefing or shoring someone's blog or post constitute publicofion?

60

To in oke mottors

worse,

section

of

the

Cybercrime

Prevention Act provides:

"Section 5. Other Offenses.
sholl GISo constitute on offense:

The following octs

(0). Aiding or Abetting in the Commission of Cybercrime. - Any person who willfully obefs
or oids in the commission of ony of the offenses enumerofed in this Act sholl be held Iio ble .

(b). Attempt in the Commission of Cybercrime. Any person who willfully offemF>Is to commit
ony of the offenses enumerofed in this Act

sholl be held Iioble. "

How is oiding Grid obeffing committed? Is shoring or reposting on o11eged libelous blog o violofion of the foregoing ;^ Is lending Your computer to o blogger who posted on o11eged libelous onicle obeffing? Cleorly, the questions to the obove connof be onswered with certoinfy, or of the very Ieosf, by merely reoding the provisions thereof. Even o person who is skilled Grid well versed in computer technology will find if difficult to be OPPrised of whof constitutes o violofiort of the foregoing provisions. Indeed, vogueness of the Assoiled Provisions of the Cybercrime Prevention Act renders the
some void.

A slotufe or oct suffers from the defect of vogueness when if locks coinprehensible sfondords fhof men of common intelligence must rIecessorily guess of its me oning Grid differ OS to its OPPlicofion. If is relougnonf to the Constitution in two respects: (l ) if violo+es due process for foilure to occord persons, especiolly the porties forgeted by if, foir notice of the conduct to ovoid; Grid (2) if Ieoves low

61

enforcers unbridled discretion in corrying out its provisions Grid

becomes
on

orbitrory flexing of the Government muscle.

tRomuoldez v. Sondigonboyon, 435 SCRA 371 (2004); People of the Philippines v. Norori0, 165 SCRA I86 (1988) I This wos reiferofed by the Honoroble Court in People of the Philippines v. Silon, 600 SCRA 476 (2009) : "xxx in exercising its power to declore whof octs
constitute o crime, the Ie islotore must inform the citizen
with redsonoble

recision whof ocfs if intends fo

rohibif

so fhof he inoy hove o certoin underSIGndoble rule of conduct Grid know whof octs if is his duty to ovoid. This requirement hos come to be known OS the void-for vogueness doctrine which slotes Ihof b slotule which either forbids or requires the doing of on act in forms so vogue that men of common intelligence must necessarily guess of its medning Grid differ OS to its OPPlicofion, violates the first essential of due process of law". [Emphosis Gild underscoring supplied] A perusol reoding of . Section 4(c) (4) of the Cybercrime Prevention Act cleorly shows its vogueness Grid deficiencies in defining the crime of Cyber Libel. Worse, the low foils to mention how the person committing Cyber Libel con be identified. Article 360 of the Revised Penol Code provides who ore the persons responsible for libel:

"Art. 360. Persons responsible. - Any person who shall publish, exhibit, or couse the publicofior\ or exhibition of ony defomofion in writing or by similor me ons, sholl be responsible for the some. The outhor or editor of o book or pomphlef, or the editor or business monoger of o doily newspoper, in ogozine or senol publicofion, sholl be responsible for
the defomofions confoined therein to the some extent OS if he were the outhor thereof. xxx"

62

Nevertheless, the some definition connof be simply odopfed Grid OPPlied to the cyber world for the obvious reosor\ Ihof people con simply use foke nomes or occess computers in common librories or computer shops. Simply frocing the IP oddress Grid imputing the
,

crime to the owner of the computer system used will not suffice. If is element ory Ihof criminol slotufes ore to be strictly consfrued. No person should be brought within their terms who is not cleorly within them, nor should ony oct be pronounced criminol which is not cleorly mode so. [U. S. v. Abod Sonfos, 36 Phil. 243 (1917).] Moreover, with respect to Section 7 of the Cybercrime Prevention Act, the rule ogoinst double Ieopordy is provided in
Article 1/1, Section 21 of the 1987 Constitution, thus:

"Section 21. No person sholl be twice put in Ieopordy of punishment for the some offense. If on oct is punished by o low Grid on ordinonce, conviction or ocquiffol under either sholl constitute o bor to on other prosecution for the some oct. " For double Ieopordy to exist, the following elements must

concur: (l ) o first Ieopordy must hove offoched prior to the second; (2) the first Ieo;>ordy must hove terminofed; Grid (3) the second Ieopordy must be for the some offense OS the first. Porenfheficolly, legol Ieopordy o110ches only (0) upon o volid indictment, (b) before o competent court, (c) offer orroignmenf, (d) o volid PIeo hoving been entered; Grid (e) the cose wos dismissed or otherwise
terminofed without the express consent of the occused. tCutson v. Court of Appeols, 289 SCRA 159 (1998) ; Guerrero v. Court of Appeols, 257 SCRA 703 (1996) ; People of Ihe Philippines v. Ylogan, 58 Phil. 851 (1933)l
63

In this light, Sections 6 Grid 7 of the Cybercrime Prevention Act provides: "Section. 6. All crimes defined Grid penolized by the Revised Penol Code, OS omended, Grid SIoeciol lows, if committed by, through Grid with the use of informofion Gild coinmunicofions technologies sholl be covered by the relevonf provisions of this Act: Provided, Thof the penolfy to be imposed sholl be one (l ) degree higher fhon Ihof provided for by the Revised Penol Code, OS omended, Grid speciol lows, OS the cose inoy be. " IEmphosis Grid underscoring suppliedl Section 7. Liobilify under Other Lows. - A prosecution under this Act shoji be without prejudice to ony Iiobilify for violofion of ony provision of the Revised Penol Code, OS omended, or other speciol lows. " Under this regime, o crime OS defined by the Revised Penol Code con be prosecuted seporofely under Section 6 of the Cybercrime Prevention Act. Moreover, o prosecution under the Cybercrime Prevention Act is without prejudice to ony Iiobilify for violofior\ of ony provision of the Revised Pertol Code. Thus, whof is being punished under Section 7, in relofior\ to Section 6, of the Cybercrime Prevention Act is the exocf oct punish obje under the Revised Penol Code. In foci, the Cybercrime Prevention Act merely odopfs Grid incorporofes o11 elements of the felonies under the Revised Penol Code Grid other speciol lows Grid soncfions, encouroges even, o seporofe Grid distinct prosecution under the Cybercrime Prevention Act for the some offense. This is most certoinly violofive of the Constitution Grid should be struck
down without hesitofion.

64

Lostly, if should be pointed out fhof deficiencies in the Cybercrime Prevention Act connof be cured in its Implementing Rules Grid Regulofions. As eorly OS 1970, in Teoxon v. Members of the Boord of Administrators, 33 SCRA 585 (1970), the Honoroble Court held Ihof the power to promulgofe rules in the implement of ion of o slotufe is necessorily limited to whof is provided for in the legislofive enocfmenf. Its terms must be followed for on odininisfrofive o9ency connof omend on Act of Congress. tUnited BF Homeowners v. BF Homes, 310 SCRA 304 (1999)l Cleorly, the vogueness of the obovementioned provisions connof be cured by its implementing rules Grid regulofions without duly exponding the low. Thus, the Assoiled Provisions ore fobl beyond resuscifofion.

The other provisions of the Cybercrime Prevention Act fhof

flow from the Assoiled Provisions likewise suffer the some fobl flow,

including the provisions Ihof outhorize the disbursement of public funds for the implement of ion of the low.
V.

Secfion 6 Of The Cybercrime Prevention ACf Is Null And Void For Being Uriconsfifufional Considering Thof If Is Violofive Of The Equol Protestion CIOuse
Under Section I, Article in Of The
Constitution.

Section 6 of the Cybercrime Prevention Act provides: "Section. 6. All crimes defined Grid penolized by the Revised Penol Code, OS omende<^, Grid SIoeciol lows, if committed by, through Grid with the use of informofion Grid coinmunicofions technologies sholl be covered by the relevonf provisions of this Act: Provided, Thof the

penolfy to be imposed sholl be one (I ) degree higher

fhon Ihof provided for by the Revised Penol Code, OS omended, Grid speciol lows, OS the cose inoy be. "
65

The import of the foregoing provision is Ihof o11 the crimes punishoble under provisions of the Revised Penol Code, such OS libel, if committed through the use of o computer system or other SImilor me oils, the penolfy to be imposed sholl be one ( I ) degree higher.

Otherwise stoled, by committing the some crime, but using o

different me ons specificolly, computer systems, the penolfy is
horsher.

At the onset, the foregoing provision is ogoin susceptible to

vorious

interpretofions. For instonce, if informofion Grid

coinmunicofions technology ( "ICT") is used in committing only one element of the crime, will the foregoing provision find OPPlicofion? Does the mere use of ICT outomoficolly increose the penolfy regordless of intent or reosonoble connection to the consummofion of the o11eged crime? Further, the provision pertoins to the use of "informofion Grid coinmunicofions technologies". However, nowhere in the Cybercrime Prevention Act is ICT specifically defined. The vogueness of the provision cleorly violofes the subsfonfive due process of the person to be chorged. If should be emphosized in this regord Ihof Section I , Article 1/1 of the Constitution guoronfees the equol protection of the lows: "Section I . No person sholl be deprived of life,
,

liberty, or property without due process of low, nor sholl ony person be denied the equol protection of the lows. "

66

In Philippine Amusements Grid Goming Corporofion v. Bureou of Infernol Revenue, 645 SCRA 338 (201 I ), the Honoroble Court exploitled:

"EQuol protection requires fhof o11 persons or things similorly situo. fed should be Ireofed o1ike, both OS to rights conferred Grid responsibilities imposed. SImilor subjects, in other words, should not be Ireoted differently, so OS to give undue fovor to some Gild unjustly discriminofe ogoinsf others, The guoronfee me oils fhof no person or CIOss of persons sholl be denied the some protection of lows which is enjoyed by other persons or other CIOsses in like circumsfonces. The "equal protection of the lows is o pledge of the protection of equol lows. " If limits governmento1 discriminofion. The equol protection CIOuse extends to onificiol persons but only msofor OS their property is concerned. "

Nevertheless, the fQregoing is without exception. In City of Mori"a v. Loguio, supro, the Honoroble Court held: "Legislofive bodies ore o110wed to CIOssify the subjects of legislofion. If the CIOssificofion is reosonoble, the low in. oy operofe only on some Grid not o11 of the people without violofing the equol protection CIOuse. The CIOssificofion must, OS on iridispensoble requisite, not be orbitrory. To be volid, if must conform to the following requirements: I ) If must be bosed on subsfonfiol distinctions. 2) If must be germone to the purposes of the low. 3) If must not be limited to existing conditions only. 4) If must OPPly equolly to o11 members of the CIOss.

Cleorly, there con be o volid CIOssificofion provided fhof the following requisites ore present: (I ) If must be bosed on subsfonfiol distinctions; (2) If must be germone to the purposes of the 'low; (3) If must not be limited to existing conditions only; Gild (4) If must OPPly equolly to o11 members of the CIOss.

67

"

However, the cose of bor could not even poss the first requisite of hoving o subsfonfiol distinction. The slotIdord is sofisfied if
the CIOssificofion or distinction is loosed on o reosonoble foundofion

or rotionol bosis Grid is not polioobly orbitrory. Icenfrol Bonk Employees' Associofion v. Bongko Serifrol rig Pinpinos, 446 SCRA 299

(2004)l Crimes committed by the use of ICT connof be reosonobly Ireofed OS more grove or heinous OS to sweeping Iy increose the
penalty by one degree higher Ihon if committed without if. Indeed, the provision orbitrorily discriminofes between two crimes Ihof hove exocfly the some elements. At ony rote, subsfonflve due process requires Ihof the low itself, not merely the procedures by which the low would be enforced, is foir, reosonoble, Grid just. IASsociofed
Coinmunicofions ' Grid Wireless Services, Ltd. v. Dumb0, 392 SCRA

269 (2002)l Thus, unreosonobleness of the provision violofes subsfonfive due process Grid should be rendered void. Truly, this oppressive low will toke us bockwords OS for OS free
\

online discourse is concerned. Expressing thoughts Grid ideos through SOCiol medio is on odvoncemenf mode possible joy modem technology. Veiny, informofion shored on cyberSIooce must not be censored, suppressed or token down bosed on the foregoing vogue provisions of the Cybercrime Preventive Act.
ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER

AND/OR WRIT OF PRELIMINARY INJUNCTION

I . Petitioners reloleod the foregoing o11egofions in the instonf Petition by reference.

68

2.

The

enocfmenf

of

the

Assoiled

Provisions

of

the

Cybercrime Prevention Act by the

Bronches of the Government
WOS

Legislofive Grid cleorly mode

Executive
In

direct

confrovenfion of the explicit provisions of the Constitution. Respondents, therefore, Grid/or onybody octing in their beholf Grid/or under their direction, should not be permitted to implement Grid/or enforce such void Grid uriconsfifufionol provisions to the grove Grid Irreporoble do in o9e Grid prejudice not just of petitioners but the Filipino people, more importonfly, OS well.
3. The constitution o1 issues roised in the instonf Petition ore

of ironscendenfol significonce Grid importonce. 4. Thus, there is on urgent necessity for the Honoroble Court to restroin Grid/or enjoin respondents, Grid/or onybody octing in their beholf Grid/or under their direction, from implementing Grid/or enforcing the Assoiled Provisions of the Cybercrime Prevention Act i. e. , Sections 4(c) (4), 5,6,7,12 Grid I9, OS well OS o11 other provisions Ihof flow therefrom, including the provisions Ihof outhorize the disbursement of public funds for the implement of ion of the low including ony Grid o11 octions undertoken under outhorify of or pursuonf therefo.
5. Petitioners ore, therefore, entitled to on jinmediofe relief

Grid the whole or port of soid relief consists of restroining Grid/or enjoining the respondents, Grid/or onybody octing in their beholf Grid/or under their direction, from implementing Grid/or enforcing the Assoiled Provisions, including ony Grid o11 octions undertoken

69

>

under outhorify of or pursuonf therefo, for being mode in violofioi\ of

the Philippine Constitution.

6. The commission Grid/or confinuonce of the octs sought to be restroined Grid/or enjoined during the pendency of the instonf Petition would work injustice Grid couse grove Grid Irreporoble injury not only to petitioners but GISo, Grid more importonfly, to the Filipino
people, which urnmofelY Ieods to the unprecedented curioilmenf of

their most cherished Grid Ieolously guorded civil rights confrory to

the express mondofe of the Constitution.

7. In view thereof, there is on extremely urgent necessity for the Honoroble Court to restroin Grid/or enjoin respondents, Grid/or
onybody octing in their beholf Grid/or under their direction, from

cousing grove Grid irreporoble injury to petitioners Grid the Filipino

people through the implement o110n Grid/or enforcement of the
Assoiled Provisions.

P RAY E R

WHEREFORE, if is most respectfully proyed Ihof:

I.

The instonf Petition be GIVEN DUE COURSE.

2. Upon the filing of the instonf Petition, o temporory restroining order Grid/or writ of preliminory injunction be ISSUED restroining/enjoining respondents, Grid/or onybody octing in their beholf Grid/or under their direction, from implementing Grid/or enforcing the Assoiled Provisions of the Cybercrime Prevention Act i. e. , Sections 4(c) (4), 5,6,7, 12 Grid 19, OS well OS o11 other provisions

70

,.

Ihof flow therefrom, including the provisions Ihof outhorize the disbursement of public funds for the implement of ion of the low including ony Grid o11 octions undertoken under outhOrify of or
pursuonf therefo.
3. The instonf Petition be SET FOR ORAL ARGUMENTS OS the

Honoroble Court inoy deem proper.

4.

Upon due considerof ion on the merits, Ihof:

(0) The Assoiled Provisions of the Cybercrime Prevention Act be DECLARED NULL AND VOID for being
uriconsfifufionol; Grid

(b) The respondents, Grid/or onybody octing in

their beholf Grid/or under their direction, be

PERMANENTLY ENJOINED from implementing the Assoiled Provisions of the Cybercrime Prevention Act, including ony Grid o11 octions undertoken under outhorify of or pursuorIf thereto.

Petitioners likewise proy for other reliefs just Grid equifoble under the premises.

71

Mokofi City for the City of Moriilo, Metro Moni10, 03 October

2012.

I
\^

KRIST PTR No. I IBP N . 8

AMES . URISIMA

674 01 1021/2 - Toguig City

- 01 10211 2 - PRLM

Roll of Attorneys No. 52576 MCLE Coinplionce No. 1/1-001 3982 - 05/04/I
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. LICERA JR. , ond FEDRO E. RAHON

61F LTA Building, I 18 Pereo Street Legospi Villoge, Mokofi City

1229 Metro Momo

Telephone No. : (632) 503.5272 Ernoil: foby. punsimo@ginoil. coin

72

COPY Furnished (BY Registered Moil)

H. E. BENIGNO S. AQUIN0 1/1 President Office of the President

Molocofiong Poloce, City of Montlo

HON. JUAN PONCE ENRILE Seriale President
SENATE OF THE PHILIPPINES

GSIS Building, Finonciol Center

I^oxos Boulevord, POSoy City

HON. FELICIANO R. BELMONTE, JR.

SIoeoker
HOUSE OF REPRESENTATIVES

Bobsong P'Ginioonso Complex Bobson Rood, Quezon City

HON. FAQUITO N. OCHOA, JR.

Executive Secretory Office of the Executive Secretory Molocofiong Poloce, City of Moriilo
HON. LEILA M. DE LIMA

Secretory
DEPARTMENT OF JUSTICE

Podre Fouro, City of Moriilo

HON. LOUIS NAPOLEON C. CASAMBRE Executive Director INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE

NCC Building, C. P. Goreio Avenue, Dilimon, Quezon City

HON. NONNATUS CAESAR R. ROJAS

Director
NATIONAL BUREAU OF INVESTIGATION

Toff Avenue, City of Monilo

PIDGEN. NICANOR A. BARTOLOME
Chief PHILIPPINE NATIONAL POLICE

Coinp Crome, Quezon City

HON. FRANCIS H. JARDELEZA

Solicitor Generol
OFFICE OF THE SOLICITOR GENERAL

I34 Amorsolo Street, Legospi Villoge, Mokofi City

73

EXPLANATION FOR SERVICE BY REGISTERED MAIL

PIeose be informed fhof the undersigned wos unoble to personolly serve copies of the foregoing Petition Grid wos consfroined to serve the soid Petition by registered moil to the obove-nomed porties, OS evidenced by the offoched Amdovif of Service by Registered Moil, due to the urgency of filing the instonf Petition, the lock of motoriol time for personol service Grid the lock of ovoiloble moripower to effect service by pers. . = . elivery.

KRIST. ^Q'. AMES .

RISIMA

74

.
.. .

r , ,

S. No. 2796

AN^I^X
IK^^,^hit^, ft\^^I^tiny""

66

H. No. 5808

99

^1101/1gt:e^I^ Diff^:e ^^}^frilli11/12^

^nitrn ^tunita ^litftE:2111\ elmn^ICESs ;^IECntrb !REg^hat;^;23:3inrt

Begun and held in Metro Manila, on Monday, the twenty-fifth

day of July, two thousand eleven.

^-E^

I REPUBLIC A. CT No. I0 1.7 :; I

AN ACT DEFINING CYBERCRllvlE, PROVIDING- FOR THE PREVENTION, 11.1\7ESTIGATIO}.!, SUPPRESSION AND THE 11\^OSITIOT*I OF PENALTIES THEREFOR AND
FOR OTHER PURPOSES

Be it enacted by, Ihe Senate grid Hot, se qf Representatives of the Philippines in Cong"ess assembled
GETAPTER I PRELlnnNARY PRO\71ST ONS

SECTION I. . Title. - This Act shall be known as the

"Cybercrime Prevention Act of 2012".

SEC. 2. Decioroti07i of Policy. - The State recogiLizes the vital role of information and communications mailstries

such as content production, telecomm. witcations, broadcasting,

,

-.

-.--

-.

~-

-..

--

---.

--------

--

.-

-..-

------

--

.-.

!...: ., I I "" I. 11 '

I^ -' I I. ., I'~..;--;;1:1

,^..

..

I ^ ,i^- I

3 2

electronic commerce, and data processing, in the nation s overall social and economic development. The State also

(e) Coinpi, tor cloto refers to an^ repi. esentaLioiT o1' facts,
litoiimation, or concepts in a form SLiitable fin. processing in a CODlputer system meltiding a program stilt. able to cause a computer. system to perform a fitnctioi} and in dudes electronic
documents and/or electronic data niessages \\, het}Ier stored ill

recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and cornrowxications technology OCT) to attall' free, easy, and intentgib}e access to eXchange analor delivery of itformation; and the need to protect and safeguard the integrity of computer, computer and comintinications systems, networks, and databases, and the confidentialit^, tritegL, ity, and availability of information and data stored theretri, from all forms of misuse, abuse, and illegal access by making punish able under the law such conduct or conducts. In this light, the State shall adopt SLi:IECient powers

local computer systems or online ^ Compute, ' PI'oginni refers to a set; of instructions executed by the computer to aclTieve IDL, ended I. esults (g) Contpi, tel' systent refers to any de\rLce or gioLIT, o1'
inter connected or related devices, one or more of \\, hicl},

L_. .--

PLUSuant to a progi'am, performs automated processing of da to

It covers any t5, pe of device with data PIOcessing capabilities including, but not limited to, conT. pLiters ancl mobile phones.

E, +-++

to effectiveIy prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing

The device consisting of hardware and software may include

input, output and storage components which may SLancl alone
or be connected in a network or otlier similar cle\rices. It also

I-- .---- - I

arrangements for fast and reliable international cooperation. SEC. 3. Definition of Ternts. - For purposes of this Act, the following terms are hereby defined as follows:
(a) Access refers to the instruction, coinmuincation

includes computer data storage de\rices or media. (11) Init}1.01, t Itgirt refers to eitlier: (i) conduct, tindei. t. a!:en witliout or in excess of authority; or (ii) conduct, }}or cover. ed by established legal defenses, excuses, court o1. d ei s, justifications, or relevant, principles under the law. the electronic mediunT in whicli online coinnTtintcatio}\ takes

I=-.
, .

with, storing data in, retrieving data from, or otherwise

making use of any resources of a computer system or
commitixication network.

I~'~ ~

(i) Cybei' refers to a coniputer. or a computer lienwoi. 1<,

t. =
,

fomi or substance, of an existing computer data or program.

(b) Alte?nttoit. refers to the modification or change, in

place.

(c) Cont. in untoottoiL refers to the transmission of infoi. n)ation through ICT media, including voice, video and
other forms of data.

systems, and/or networks, whether physical or virt, 11al, and/or tlTe computer progi. ams, computer data andlm, t, I. af^ic
data so vital to tl, .is country that the 11, capacity o1. clestiuction of or interference with sricli systeni and assets would nave a debititating impact on sectuiity, national or econoiiTic sectii. }t. J, , national public health and safety, or any coinbinatioii of tliose
matters.

co 01'itictJl trill"OSti'uctiLie refers to I;he COIL\pureJ'

electrochen, .foal, or other data processing or communications

(d) Coniputei' refers to an electronic, magnetic, optical,

logical, arithmetic, rotiting, or storage functions and which

device, or grouping of such devices, capable of performing includes - any storage fact^ty or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of coinpttter device including de\tices with data processing capabilities like mobile phones, smart phones, computer networks and other
devices connected to the internet.

0<) Cybei. secii. Itty refers to tile collection of tools, policies, risk management approaches, act, ions, training, best. lilactices, assurance and technologies that can be LISecl to pro^Ct. the cyber environni. ent and organization and LISei"s assets.

. .

.>

O) Databo. se .refers to a representation of information, knowledge, facts, concepts, or instructions which are being

destination, route, time, date,

Lindenying service.

SI ZG,

diiration, oT type I~if

prepared, processed or stored, or have been prepared, processed

or stored in a formalized manner and which are intended for
a

CHAPTER H PUNISHABT, E AC'Is

use In a computer System.

(In) litterceptio?I refers to listening to, recording, monitoring or surveillance of the content of communications,

in duding procttring of the content of data, either, directly, through access and use of a computer system or indirectly,

SEC. 4. 03, bel. elfi?te One'Ises. - The following tici. s constitLite the offense of cyberCTin'Ie nunishable LUTder this I\ct
IT^
,

tm, ough tlie use of electronic eavesdropping or tapping devices,

at the same time that the communication is DCctirring

(a) Offenses against the confident. iani;y, nitegi. it^ and availability of computer data and systems: (1) Illegal Access. - The access to the whole ()I. any liart of a computer system wrt, bout light. .
(2) Illegal Interception The interception made by

E=-=*.^~=

! --

,^^.

(r\) Sei. vice provider. refers to:

(1) ATiy public or private entity that provides to users of its service the ability to communicate by means of a
computer system; and (2) Any other entity that processes or stores computer data on behalf of such communication service or users of such
service.

technical means without right of any non-public transmission of computer data to, from, 01' withLit a con, .I^Titer systein including electronJagi, .etic emissions from a con}13 Lit. a, system
carrying such computer data.

I~~
.

t. ,---.

contaliTed in the form of conLputer data or any other form that services other than traffic or content data and by which identity can be established:

(0) 814bsci'ibei'!s; iiLfoi'n?. atto7L refers to any inforn'Iation

is held by a service provider, relating to SLibscribers of its

(3) Data Interfei. ence. - Tile intentional or Teclc}ess alteration, damagii, .g, deletion or deterioration of con, PITter data, electronic document, or elect^01tic dai;a message, writ}}out light, including the introduction or transmission o1 \, 11"uses. (4) System Interference. - The inI:entional alteration or reckless hindering or interference with the fLinctionLng of a compute}, or computer network by Inputting, transmitting, damaging, deleting, deter10ratTng, altering or suppressing
.

F=---.t

(1) The type of coinn:IUTiication service used, the technical

pro\, ISIons taken thereto and the period of service; telephone and other access numbers, any assigned network
(2) The subscriber's identity, postal or geograpliic address,

computer data or program, electionic docunient, or electionic data message, witliout right or' antiiority, including t116
(5) Misuse of Devices

introduction or transmission of \Jimses.

addi. ess, billing and payment information, available on tl)e basis of the service agreement or arrangement; and
installation'of coinrnui}ication equipment, available on the basis
of the service agreement or arrangement

(3) Any other available information on the site of the

distribtttion, or otherwise niaking available, without riglit, fir

(aa) A device, including a COIL\ptit. er' Frograni, designed o1' adapted primarily for the pulpose of cominttting any of LITe
offenses LIDder this Act; or
.

(1) TITe use, production, sale, Iii'octirement, importation,

(p) Ti'onto ddto or non-content dotq refers to any computer data other. than the content of the communication including, but not limited to, the communication's origin,
b

. ~

(bb) A computer password, , access code, or similar data

damage has yet been caused, tlie penalty imposable SIIall be

one (1) degL. ee lower.

. by which the whole or any part of a computer system re

(11) The possession of an item referred to in paragL. aphs

' capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.

(3) Computer-related Identity Tl}eft. - The nit, entional

acqtitsition, use, nitsuse, transfer, possession, all;elation o1' deletion of identifying tiffornlation belongii'Ig to anot'Iler, \\, betliei,
.

purpose of committing any of the offenses under this section.

name over the internet in bad faith to profit, mislead, destroy
sricli a domain name is:

5(I)(aa) or (bb) above with it, .tent to use said devices for the
(6) Cyber-squatting. - The acquisition of a domain

natural or juridical, without right: PIOuided, TITat il' Do

damage -has yet been caused, the lienalty imposable shall be
one (1) degi. ee lower. I. ~--~ ~ --

(c) Content-related Offenses: (1) Cyber sex. - The willfill engagement, , ITiaint, enance, control, or operation, directly or 11Tdirectly, of any lascivious exl)Ibition of sexual organs or sexual activity, with the aicl of a coinpttter system, for. favor or consider at;ion.

reputation, and deprive others from registering the same, if

(1) Similar, identical, or confusingIy similar. to an existing in. 'ademarlE registered with the appropriate government agency at the time of the domain name registration;

ILL.

(11) Identical or in any way similar with tlie name of a person other than the registrant, in case of a personal name;
and

(2) Child PornograplIy. - The LIDlaw^11 or 131,011ihit, ed acts defined and punish able by Republic Act No. 9775 o1. tile
anti-Child' Pornogi. aphy Act of 2009, committed throngli a

.1.4-;.-

computer system: PI'outded, That the penalty to be Imposed shall be (1) one degree higher t}\an tliat provided for in
Republic Act No. 9775

(111) Acquired without right or with~ititeUectual property

Interests I, D It.

it. ansinission of commercial electronic coinn}untoatioiT with

(3) Unsolicited Commercial Con}I^Tunications. - '11/6

I^;;.
.

;.=^.
F--.--

(b) Computer-related Offenses:

the use of computer system w}tic}T seek to advertise, sell, 0} offer for sale products and Ber\rices are prohibited unless: (1) TITere is prtoi, ajifii. mati\, e consent fro111 tile I. ecipient;
Or

(1) Computer-related Forgery. .

I"- ~ ' '~

.
.

it be considered or acted upon for legal purposes as if it were

readable and interngible; or

without right resulting in inauthentic data with the intent that

(1) The input, alteration, or deletion of any computer. data

authentic, regardless whether or not the data is directly

the roduct of computer-related forgery as deftiTed beretn, for

service analor admitxisti, atIve all. Jar^uriceinents front the send e, .

to its existing LISers, subscribers Or CTiSt. OmerS; Or (111) TITe following conditions are present:

(11) The primary intent of the communication is 101.

.

(11). The act of 1010wingly using computer data w}}ich is

the purpose of perpetuattrig a fraudtilent or dishonest design.

alteration, or deletion of computer data or program or

(2) Computer-related Fraud. - The unauthorized input,

I. eceipt of further commercial electionic messages (opt-out) h. rim

the same source;

(aa) The coinnTercial electronic coinnTtinication contains a simple, valid, and reliable \va3, foi. the recipient. t, o reject

interference in the fLinctionitig of a coinptiter system, causing

damage thereby with fraudulent intent: PI. outded, That if Do

pullposelj, disguise the source of the electronic message; aria

(bb) The commercial electionic coiniLtunicatioii does ITt~It

. .

n}essage in order to induce the recipients to read -the message.

(cc) The qommercial electronic communication does not UTPOsely include misleading information in any part of the (4) Libel. - The LUTlawftrl or prohibited acts of libel

Section 4(a)(5) shall be porns}Ted with imprisonnTent of PI'ision

pusos (PhP500,000.00) or both.

Any person found guilty of the puntsl}able act under.

may o1. or a fine of not more thaiT Five hundred thousand

critical 11/11, astructure, the penalty of I. eclt, sioii, tentp0, .o1 or a fine of at least Five hundred thousand pesos (PI}P500,000.00)
u to maximum amount coinnTenstirate to the damage
incurred or both, shall be imposed.

as defined in Artide 355 of the Revised Penal Code, as

If punish able acts in Section 4(a) are coinn}ittea against

amended, committed through a computer system or any other

similar nTeans which may be devised in the fitture.
constitute an offense:

I_ I~ ~ ~'~'~~

SEC. 5. 0thei. Offe7tses. - The following acts shall also

it+:.
h ~~~'~~~~
, .

,*-=.*^*-

(a) Aiding or Abetting in the Commission of Cybercrime.

Any person found guilty of any of the litinishable acts enumerated in Section 4(c)(I) of this Act shall be punished hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

-Any person w}o wi y h 11 b h Id

liable.

with imprisonment of PItsio, t 17toyoi. o11 a fine of at least Two

I-- -------

enumerated in this Act shall be held liable.

rerson who willfully attempts to commit any of the offenses SEC. 6. All CTin}es defined and penalized by the Re\, ised

(b) Attempt in the Commission of Cybercrime. - Any

ATiy person found guilty of any of the punish able acts enumerated in Section 4(c)(2) of this Act shall be punished

with the pena ties as enIL ,,. ' I I Tl 'the penalty to be imposed shall be one (1) aegi. ee litghe, . than
that Toviaed for in Republic Act No. 9775, if commitl;ed
tl}rough a computer system.

,--

I-.-,.- -. - -

Penal Code, as amended, and special laws, if committed by,

tlTJiou h and with the use of information and communications

I'~ ' ' ~

technologigS S ' b d shall be one (1) aegL. ee bigiier than that provided for by the Revised Penal
Code, as amended, and special laws, as the case in a3, be.
under this Act shall be without prejudice to any liability or ,101atioi} of any provision of the Revised Penal Code, as
amended, or special laws.
CHAPTER 1/1
PENALTIES

AJI erson found guilty of any of the punish able acts

I=-==

enumerate in e f f t least Fifty

fifty thousand pesos (PhP250,000.00) or both.
J

I ' d OS (PITP50,000.00) but not exceedtrig Two hundred

I~~~~"~

SEC. 7. Lio. billtj, under. Other Louis. - A prosecution

in erson found guilty of any of the p\nitshable acts

one (1) degree lower One hundred thousand re,for one (1) eg"' f I t than that of the prescribed penalty .,
CPIlPIO0,000.00) but not exceeding Five litu}dred tliousand 13esos
(PhP500,000.00) or both.

SEC. ^. PermitieS- ~ 3 ' s t- 4(a) and 4(b)

of this C SI' ' I d attotisand esos
the damage incurred or both.
I. .

SEC. 9. Corporate Liobility. - When any of the

(PhF200,000.00) LIP to a maximum amount COULDJensurate to

,unts I. a e aC S .-aj I , b a natural personac'gel}e - ,-I ,b edOl}: (a) a power of representation of the juridical IJersoi} provided

11

10
.

the act committed falls within the scope of such authority;

person: PI. outded, That the act committed falls within the

(b) an authority to take decisions on behalf of the itIndical

SEC. 1.2. 11801-Tinte Collecttoit of 71.0ffi:c Dotc!.. - I"aw elforcement authorities, with due cause, shall be autliorized to collect or record by tec}tincal or electronic n}eans traffic data
in real-time associated with specified communications ti. an sinitted by means of a computeI. system.

within the iru, Idical person, the inndical person shall be held liable for a fine equivalent to at least double. the fines imposable in Section 7 LIP to a maximum of Ten million pesos
(PI}PIO, 000,000.00)

scope of such aut^onty; or (c) an authority to exercise control

Traffic data refer only to the communication's origin,

destination, route, time, date, size, duration, o1. type of

underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will
reqttire a court warrant.

If the commission of any of the punishable acts Ilerein defined was made possible due to the lack of stipervision or

his^

control by a natural person referred to and described in the preceding paragraph, for the benefit of that juridical person

by a natural person acting ttnder its authority, the juridical person shall be Ileld liable for a fine eqttivalent to at least
Five million pesos (PITP5,000,000.00).

enforcement, authorities in the conection or recording of tl}e

I

Service providers are reqtiired to cooperate and assist- law

double the fines imposable in Section 7 up to a maximum of The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person
who has committed tile offense.
CHAPTER TV

above-stated tifformation.

The court warrant required LUTder tliis section shaft only be issued or granted ttpon. written applicatioiT and tlie
examination under oath or anti, ., matioii. of the applicar!t and enumerated I}ereinabove has been coinn, .ittea, or is beLITg

the witnesses he may prodttce and the showing: (1) that tliei. e are reasonable grounds to believe that any of the crimes committed, or is abottt to be committed; (2) that there are

Fir I+,~.

~ ENFORCEMENT AND IMPLEMENTATION

reasonable grotn}ds to believe that e\, i. dence that will be obtained

is essential to the conviction of any person for, or to tl}e

that there are Do other means readily available for obtaining
such evidence.

SEC. 10. Lotu Bit/o7'centent Authorities. - The National BUTeati of Investigation (NBl) and the Philippine National

solution of, or to the prevention of, any such CTinies; and (3)

Police (PNP) shall be responsible for the efficient and effective

law enforcement of the provisions of this Act. The NET and the PNP shall organize a cybercrime LITiit or center manned

SEC. 13. Presei. uutiort of ComputeI' DC1to. . - The

I

by special investigators to exclusively handle cases involving

violations of this Act.

integrity of traffic data and subscriber tifformatioi} relating to

communication services Iirovided by a service provider shaU
the date of the transaction. Content data shall be sillJilar}3, order froni law enforcement authorities requiring its IJaw enforcement authorities may order a one-time extension for another six (6) months: PI'Quided, That once

be preserved for a minimum period of six (6) months from

SEC. 11. Duties of Low EiLforceiiteitt ALLtho, tti:es. - To ensure that the technical nature of cyber CTin}e and its

preserved for six (6) months from t, Ile date of receipt of the
preservation.

prevention is given focus and considering the procedures

involved foi. international cooperation, law enforcement authorities specifically the computer or technology crime divisions or ttnits responsible for the investigation of

cyberCTiii. \es an, e reqtul. ed to submit timely and regtilar reports inertialILg pre-operation, post-Operation and investigation results
.

and such other documents as may be reqTILTed to the

provider is used as evidence in a case, the merel furnishing

to such service provider of the transmittal docuiiJent to the
.

computer data preserved, transmitted or stored by a service

DepartnTent of Justice (DoJ) for'review and moultpring.

,.,
a.

13

12

Office of tlie Prosecutor shall be deemed a notification to

necessar3, tifformation, to enable the \tildertaldrig of tl\e seal'ch,

seizure and examination.

preserve tlTe coni. puter data until the termination of the case
The service provider ordered to preserve computer data shall keep confideiTtial the order and its compliance.
SEC. 1.4. Disclosi4i'e of ComputeI' Data. - Law

Law enforcement aut}10nties may I. equest 161' an extension

of time to complete tl}e examination of the coinptiter data storage nTediurn and to make a Tetui'n theI'eon but in Do case for a period longer than tlTirty (30) days from date of approval
by the cottrt

enforcement authorities, LIPon secui'ing a COLD^t war'rant, shall issue an order reqttiring any person or service provider to
disclose o1. submit subscriber's information, traffic data or

SEC. 16. OILStody o1 00/11pii, tel' Data

All compute I.

relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to
the purpose of investigation.

^. valid conTplaint officially docketed and assigned for investigation and the disclostire is necessary and relevant for
SEC. 15. Seal'clL, SetzL, i'e grid Excziittitotion of CoinpiLtei' Doto. - Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the
following I>owers and duties.

data, including content and traffic clata, examinecl tinder a proper warrant shall, within forty-eight (48) hours after t}Ie expiration of the period fixed therein, . be deposited witli t}Ie coin. t in a sealed package, and shall be accompanied by, an

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affidavit of the law enforcement authorit;37 exectiting it stating

the dates and times covered b3, the exanT. matio!I, and the law enforcement antliority who may access the deposit, among other relevant data. TITe law enforcement authority shall also

I-

certify that Do dtiphcates or copies of the whole or any 13'art

thereof have been n}ade, or if n, .ade, that all sucl} duplicates

--

Within the time period specified in the warrant,

to

or copies are included in the package depositecl with the COLIrt. W}e IJaCkage so deposited shall not be opened, or the recordings

conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data
storage DiediLLD};
,.

upon order of the court, which shall }lot be granted except LIPon motion, witlT due notice and opportunity to be neard to the person Or 13ersons whose conversation Or Communications
have been recorded.

replayed, or LISed in evidence, or their contents revealed, except

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(b)
secui. ed;

To make and retain a copy of those computer data To maintaiiT the integrity of the relevant stored

SEC. 17. Desti'uctioit. of 00/11pt, tel' Doto. - Upon

(c)

computer data;

expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement antlTonties, as the case may be, shall immediately and completely destroy the computer
data subject of a preservation and exam. Tination. SEC. 18. E:*:dustoitoi'31 Rule. - Any evidence procured without a valid warrant or beyond the authorit. y of the same
shall be triadmissible for any I, roceeding before any cotn. t or
tribunal.

(d) To conduct forensic analysis or examination of the

computer data storage medium; and

data in the accessed computer or computer' and

communications network.

(e) To render inaccessible or remove those computer

SEC. 19. Resti'jetiiLg o7' BlocktiLg Access to 00/11pL, tel'

order any 13erson who I}as knowledge about the fluictio}}ing of

a

PUTSuant thereof, the law enforcement authorities may

Doto. . - When a computer data is pitiiici focie found to lie in violation of the provisions of this Act, the DoJ shall issue

the computer system and the measures to protect and preserve

an order to restrict or block access to such computer data.

the coinputer data therein to provide, as is reasonable, the

.

,,

15 14

SEC. 20. Noncoi7tpltoii, ce. - FailiLL. e to comply with the

GIIAPTER \/11 COMPETENT AUTHORITIES

provisions of Chapter TV hereof specifically the orders fron} law

Presidential Decree No. 1829 with imprisonment of PI', sion

enforcement authorities shall be punished as a violation of coi I'eccioitol in its maximum nettod or a foe of One hundred thousand pesos (PITp100,000.00) or both, for, each and every noncoinpliance \\, ith an order issued by law enforcement
authorities.

SEC. 23. Depoi. ti?lent of Ju, stire (1)0J). - Tilere is hereby created an Office of Cybercrime within the DoJ designatecl as
the central authority in all matteT. s related to international
rutitual assistance and extradition
I---,- ---

CHAPTER V
JURISDICTION
,

Center.

SEC. 24. Cybei'crime In Destigotioit grid Cool. dinoilltg There is hereby created, witlTin thirty (30) days

I. is*-'=**-

from the effectivity of this Act, an inter-agency body to be

known as the Cybercrime In\restigation' and Coordinating

SEC. 21. Jultsdtctio}t. - The Regional Trial Court shall

have itrrisdiction over any violation of the provisions of this Act including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of -the elements was committed within the Philippines
at, .tlie time the offense was committed, was in the PI, illppii}es.

Center. (CIOC), Tinder the admiT}1stI. atIve stiper\dBion of tlie Office of the President, for policy COOTdii}ation among concerned
and for the fom, .ulation and eiTf'orcement of t, he national cyber security plan.
agencies

!-I ---. .

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I - -------

or' con}mittecl with the LISe of any computer system wholly or

SEC. 25. Coniposition. - Tlie 01CC shall be Ileaded by

the Executive Director of the TiffornJation and Coinn^LUTications

,. - - - - - --- .

partly situated in the COLLritry, or when by such commission any damage is caused to a natural or ittrialcal person who,
There shaU be designated special cybercrime courts

Technology Office ttnder the DepartnTerLt of Science and Technology OCTO-DOST) as Chair. person with the Director o1 the rel as Vice Chairperson; the Chief of tl, e PNP; Head of the DoJ Office of Cybercrime; and one (1) representati\, e horn

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,^ . - - .--~-. ^^-^

maru}ed by specially tramTed judges to handle cybercrime cases.

CuspTER in

the private sector and academe, as members. The 0100 shall be manned by a secretaL. tat of selected existing personnel and representatives from the different participating agencies.
SEC. 26. POWei's und FIJItctioits.

INTERNATIONAL COOPERATION

The 0100 shall

have the foUowing powers and functions: extend immediate assistance for. tlie suppression of real-time emergency response team (CERT);

SEC. 22. Gen'ei'o. 1 Pitncjples Relating to 17ttei'ILOtiortol international cooperation In criminal matters, arrangements

Coopei. 0. trioit. - All relevant international instruments on

(a) To formulate a national cyber security plan and

agreed on the basis of tnnform or reciprocal legislation, and

evidence in electronic form of a criminal offense shall be given

commission of cybercrime offenses through a computer

domestic laws, to the widest extent possible for the 1111rposes

of' investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collectioi} of
frill force and effect.

effecti\, e me astires to prevent and SLi}, press cyberCT}ILLe activities

as provided .for in this Act, ;

(b) To coordinate the preparation of appropriate and

participating law enforcement and prosecLit. ion agencies;

,

(c) To monitor cybercrime cases being handled

by

, "

16
17

(c{) To facilitate international cooperation on intelligence, investigations, training and capacity building related to
cybei'cmiLe prevention, suppression and prosecution; (e) To coordinate the' support and participation of the business sector, local government units and nongovernment organizations in cybercrii, .}e prevention prograi, Js and other I'elated projects;

SEC. 31. Effectiuit. I'.

This Act shaU take effect fifteen

.

(15) days after the completion of its publication ill the Official
Gozette or in at least two (2) newspapers of general ctr. CUIati n Approved,
.

I
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.

co To. recommend the enactment of appropriate laws,

issuances, measures and policies;

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(g) To call LIPon any government agency to render assistance in the accomplishment of the 0100's DJandated
tasks and ftinctions; and

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This Act which is a consolidation of Senate Bill No. 2796 and

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(11) To perform all other matters related to cybercrime prevention and suppression, including capacity building and
sricli other ftinctions and duties as may be necessary for the

House Bill No. 5808 was finaUy passed by tlie Senate and the House of Representatives on June 5,2012 and .June 4,2012 respectively.
,

proper implementation of this Act.

OILAPT18:R WIT
FINAL PROVISIONS

.
,. -.-.

SEC. 27. Appi'opitotioits. - The annotuit of Fifty Inithon pesos (Flip50,000,000.00) shall be appropriated annually for, the
implementation of th}s Act
The SEC. 28.117ipleiiieittt7i. g Rules and Begt, lottoits. ICTO-DOST, tl}e DoJ and the Department of the Interior and Local Goveri}merit corLG) shall jointly formulate the necessary

4441:' ,,^^{fixi^
Secietczi3? Gene, .o1 Hot!se of Representatives

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API^ro^^d^ SI;P 12 tilt ..**,*",,."*,,

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rules and regulations within ninety (90) days from approval

of this Act, for its effective implementation.
SEC. 29.

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Sepoiubilttj, Gionse. '- If any provision of this

P7. esideizi o Ihe Philij?pines

Act is held invalid, the other provisions not affected shall

remain in f\IU force and effect.

SEC. 30. Repealing 0101Lse. - All laws, decrees or rules

inconsistent with this Act are hereby repealed or modified

"Electronic Commerce Act' is hereb}, modified accordingly.

,
,

accordingly. Section 33(a) of Republic Act No. 8792 or the

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c^-ElmFl^CGI, Y^
MARIAlllTU 11.01 ,DAL DIRECTOR IV I MALACA^G RECURus ^FILE

I!. I
.

wilful1111/11/11^11/11/1111im^il
PNOY006250
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