2008-78270

1.a. From a policy perspective, passing a law that would require all services that enable communications to be wiretap-ready is not a good idea, especially when applied in the Philippine context. The discussion will necessarily revolve around the balancing of two state interests: one is the protection of the right to privacy of private individuals; the other is national security. It is submitted that in this instance, the former outweighs the latter. The right to privacy has been referred to as the right to be let alonethe most comprehensive of rights, and the right most valued by civilized men. Of course, there are exceptions, among which are public safety and national security. However, building wiretapping capabilities into communications infrastructure creates serious risk that the communications system will be subverted either by trusted insiders or skilled outsiders, including foreign governments, hackers, identity thieves and perpetrators of economic espionage. This risk is much higher in the Philippines because we do not have adequate security framework to defend against these attacks. Given the large amount of data involved, the countrys Internet security must be foolproof. Needless to say, this is not the case; recent attacks on various Philippine government websites serve as ominous reminders of our vulnerability. Thus, it may even be argued that it is actually in the interest of national security that such wiretap technology not be in place, lest the above mentioned risks materialize. Another important consideration is the cost involved in making the current technology wiretap-ready. If such law is passed, there are two plausible scenarios: either (1) the cost of making the communication networks technically compliant is shouldered by the service providers; or (2) the government subsidizes whole or part of the capital overlay. Neither, however, makes sense for a developing country like the Philippines. In the first scenario, service providers will merely pass on the cost to the consumers in the form of higher service charges, which leads to an industry-wide increase in prices. Effectively,
Page 1 of 4

2008-78270

this would deny lower income households access to basic communication and information services, as well as deprive them of low-cost business opportunities unique to the Internet. Under the second scenario (which is less likely), the cost will still be borne by the consumersthis time in the form of taxes. The problem here is not the jacking up of service prices but rather the opportunity cost of spending public funds to upgrade technology. In a developing economy, there are other more pressing needs than wiretapping, e.g. education, healthcare, etc. There are also bound to be enforcement issues, particularly with regard to service providers not based in the Philippines, such as Facebook and Skype. It is preposterous to merely assume that they would follow court orders from the Philippines.

1.b. The main argument for this wiretap-enabling legislation is that law enforcement and national security are compelling state interests that outweigh an individuals right to privacy. The Human Security Act of 2007 authorizes the Court of Appeals to order law enforcement officials to wiretap. However, the judicial authorization will be a mere scrap of paper if the law enforces do not have the means to tap into the network. The reality is that criminals are exploiting the advances in communications technology to avoid detection, rendering traditional law enforcement methods ineffective. As the gap between authority and capability widens, the government is increasingly unable to collect valuable evidence in cases ranging from drug trafficking to terrorismwhich is why there is an overarching need for this kind of legislation. It is well-entrenched in our jurisdiction that it is within the States police power to adopt such measures as would ensure the overall safety of its citizenry.

2.a. The combination of outdated IP laws and the technological boom associated with the Internet age is the primary reason why it has become very difficult to protect IPR nowadays.
Page 2 of 4

2008-78270

The basic framework of the prevailing IP laws is embodied in the Berne Convention, which was first accepted in 1886 and last amended in 1979 (the 1995 TRIPS Agreement still relied upon the basic standards set in the Berne Convention). To put things into perspective, personal computers were just starting to make their way to households in 1979, and the Internet was a totally foreign concept. Evidently, the regime of copyright was built on a radically different technological age. Meanwhile, the emergence of digital technology and the Internet exponentially increased availability and access to digital versions of copyright-protected materials such as music, books, and movies. After Napster showcased the file-sharing capabilities of the Net, it was all spontaneous combustion from there. And with the number of internet users rising to over 2 billion at the end of 2011, it was simply impossible to keep tabs on all protected works moving around the Net. In sum, the failure of IP laws to keep up with advances in technology makes for an enforcement nightmare. We have simply reached a point where it is counterproductive to make technology bend to fit IP laws; it should be the other way around. The lawmakers stubbornness to accept this reality is, as Thomas Jefferson puts it, like fitting a man with a boys coat.

2.b. From the point of view of a developing country, it is better to de-prioritize the protection of IPR. My argument is that, in a country where majority of the population belongs to economic class D, the social and economic benefits of piracy far outweigh the need for IPR protection. In this day and age, computer literacy has become a primary consideration for many employers. The availability of pirated copies of essential software, such as Microsoft Office, bridges the digital divide between low- and high-income households; to a certain degree, piracy places ordinary Filipinos who otherwise cannot afford original copies on equal footing with their

Page 3 of 4

2008-78270

more affluent counterparts. Furthermore, it benefits the overall economy because a more computer literate labor force would attract foreign companies to come in and set shop here. Software piracy also provides a fertile breeding ground for individual innovators and small businesses alike. In the case of the former, access to cheap copies of the Java Development Kit and Adobe ExtendScript allows ordinary Juans to be creative and develop their own programs from which they can derive income from. As regards small businesses, piracy significantly reduces the overhead costs for startups, thereby lowering barriers to entry. The net result would be a more competitive and robust market economywhich is desirable for developing countries.

2.c. From a policy perspective, the primary objective of IPR is to advance the progress of science and useful arts. It creates the incentives for individuals to produce great new works that otherwise would not be produced. If the State does not do enough to enforce IPR, then it creates a disincentive for people to create and innovate. Furthermore, this could lead to brain drain since it is logical for individuals to move to jurisdictions where their IP rights will be protected. From an economic standpoint, the Philippines would be taking unnecessary risks by being lenient in enforcing IPR. In a globalized economy, sanctions imposed by trade partners could have profound effects, especially for developing countries. Since our industries are not self-reliant, the adverse economic effects are readily palpable. Even without economic sanctions, the inability to protect IPR could drive out foreign investors and discourage new ones from coming in. Again, it is the countrys economy that would suffer. Lastly, the fact is that IPR is protected by the laws of the Republicwe have adopted our own IP Code and have ratified the TRIPS Agreement. If we are to be respected as a sovereign by the international community, then the Philippines have no choice but to enforce the law.

Page 4 of 4