CYBERCRIME (Miriam) In our Constitution, freedom of speech occupies a preferred position.

In his immortal argument for a "marketplace of ideas," the great Justice Holmes wrote: "They may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." In fact, the constitutional provision, on the surface, sounds absolute: "No law shall be passed abridging the freedom of speech." I humbly submit that while the general rule is that a law is presumed to be constitutional, there is an exception when the law limits free speech. In that case, the law is presumed to be either neutral, or presumed to be unconstitutional. Because it limits free speech, the Cybercrime Act begins with a presumption of unconstitutionality. The Cybercrime Act is a law that dangerously limits the growth of the marketplace of ideas. Therefore, it is presumed to be unconstitutional. But in addition, the law is unconstitutional, because it uses language that is overbroad, and language that is too vague. In other words, it violates the overbreadth doctrine and the void for vagueness doctrine in constitutional law. The overbreadth doctrine holds that if a law is so broadly written that it deters free expression, then the Supreme Court will strike it down in its face, because of its chilling effect. The vagueness doctrine refers to a law that provides a punishment without specifying what conduct is punishable, and therefore the law is void because it violates due process. Among the provisions of the Cybercrime Act that are too broad or too vague are: Sec. 4 para 4. It makes libel a cybercrime, if committed online; Sec. 5. It punishes any person who aids or abets the commission of any cybercrime, even if it is only through Facebook or Twitter; Sec. 6. It adopts the entire Penal Code, if the crime is committed by the use of information technology, but the penalty shall be one degree higher; Sec. 7. It makes the same crime punishable, both under the Penal Code and the Cybercrime Act; Sec. 19. It authorizes the Department of Justice to issue an order to restrict access to computer data which is found to be prima facie in violation of the new law. Sec. 19 is called "the takedown clause." THIRD PETITION Petitioners specifically asked the high court to nullify Sections 4[c]4, 6, 7, 12, 19 of the law. [T]hese provisions are constitutionally infirm. Taken together, they restrict the fundamental rights to free speech and the freedom of the press with respect to online content in the same way a totalitarian state would do so through unrestricted and unregulated censorship, the petition stated.

Sec. 4 (c) [4] of the law criminalizes libel, not only on the internet, but also on any other similar means which may be devised in the future. Sec. 6 raises by one degree higher the penalties provided for by the Revised Penal Code for all crimes committed through and with the use of information and communications. Sec. 7 provides that apart from prosecution under the assailed law, any person charged [with] violation of the said law the offender can still be prosecuted for violations of the Revised Penal Code and other special laws. Sec. 12 authorizes law enforcement authorities to collect or record by technical or electronic means communications transmitted through a computer system sans warrant. Sec. 19 authorizes the DOJ to block access to computer data when such data is prima facie found to be in violation of the provisions of this Act. It is undeniable that the Cybercrime Act in this context is a content-based regulation, that is, one that seeks to restrict speech at first blush appears to violate the Cybercrime Act, petitioners stated. Aside violation of free speech, the law also violates the double jeopardy and equal protection clause of the Constitution because it allows simultaneous prosecution for violation of the Cybercrime Act and the Revised Penal Code. Violation of the Cybercrime Prevention Act will impose a penalty higher than that of the Revised Penal Code but it does not preclude the prosecution for the same offense for violation of the Penal Code. Also, petitioners said the real time data collection of traffic data violates the right to privacy and the right against unreasonable searches and seizure. Real time collection of traffic data under the Cybercrime Act authorizes the PNP and the NBI to install devices at the networks of telecommunications, mobile and Internet service providers to capture data about communications, the petitioners said. It is conceivable that the PNP or NBI can monitor all traffic since the law does not establish standards for the exercise of the authority to collect data, it added. No limits are imposed upon either the PNP or the NBI since they can lawfully collect traffic data at all times without interruption. It is conceivable that the PNP and the NBI can at all times possess all traffic data on all internet, mobile, fixed line and related communications. On the other hand, Section 19 allows the DoJ to compel the take down of any internet or on-line content without any need for a judicial determination.