REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA 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; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA JR.; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners, - versus G.R. No. __________________ Certiorari & Prohibition [With Application for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction]

HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents. x ------------------------------------------------------ x

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; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA JR.; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON (Petitioners), by counsel, and unto the Honorable Court, respectfully state: PREFATORY Bloggers and netizens citizens who have and who actively use their internet access raise the alarm over a newly-signed and newly-enacted law violating their individual and collective rights, and destroys the idea and reality of the Internet as an open public forum and marketplace of ideas. Inasmuch as they are concerned by the new laws many violations of their fundamental and constitutional rights as

individuals, they toll the bells now over the clear and present dangers Republic Act No. 10175, otherwise known as the

Cybercrime Prevention Act of 2012 (Cybercrime Prevention Act),

pose on the internet as a platform for close to one-third of the population. The internet is where they could discuss issues and concerns, respond during disasters and crises, demand

improvements in various aspects of national life and, most importantly, to speak truth to power. Before, citizens solely depended on newspapers, periodicals, radio, and televisions to exercise their fundamental and

constitutional rights to free expression, to redress of grievances and even to assembly and association. Today, the internet and even mobile phones have become the platform and mediums of citizens themselves from which they exercise their rights. In fact, Filipinos have excelled in internet use and earned for the Philippines the new monicker social media capital of the world. To the complete shock of citizens, the Government adopted a new law that involves spying on citizens, seizure without probable cause, prior restraint, subsequent punishment, and other acts prohibited under the Constitution. Thus, in light of this grave context, conferred upon the Judiciary is the ponderous duty to rein in the Legislative and Executive Branches of Government to their own allocated places under the Constitution. In the landmark case of Marbury v. Madison, 5 U.S. 137 (1803), the United States Supreme Court enunciated the principle of judicial review, thus: "It is emphatically the province and duty of the judicial department to say what the law is."

In the Philippines, the Honorable Court's power of judicial review is conferred on the Judicial Branch of Government as stated in Section 1, Article VIII of the Constitution. Such power of judicial review was early on exhaustively expounded on in the definitive 1936 case of Angara v. Electoral Commission, 63 Phil. 139(1936), in which the Honorable Court discoursed: The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. [Emphasis supplied] As the final arbiter of all legal controversies and the last bulwark of democracy in this jurisdiction, the Supreme Court is tasked with the most noble and awesome duty to uphold the Constitution and protect the liberties of citizens, as held in Bengzon v. Drilon, 208 SCRA 133 (1992): It cannot be overstressed that in a constitutional government such as ours, the rule of law must prevail. The Constitution is the basic and paramount law to which all other laws must conform and to which all person, including the highest official of the land, must defer. From this cardinal postulate, it follows that the three branches of government must discharge their respective functions within the limits of authority conferred by the Constitution. Under the principle of separation of powers,
4

neither Congress, the President, nor the Judiciary may encroach on fields allocated to the other branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies. The constitution expressly confers on the Judiciary the power to maintain inviolate what it decrees. As the guardian of the Constitution, we cannot shirk the duty of seeing to it that the officers in each branch of government do not go beyond their constitutionally allocated boundaries and that the entire government itself or any of its branches does not violate the basic liberties of the people. [Emphasis supplied] Indeed, the Honorable Court is herein called upon to endeavor to vindicate rights safeguarded by the fundamental law, particularly in this instance when both the Legislative and Executive Branches of Government intend to employ against citizens a crude tool to bludgeon their most cherished and jealously guarded fundamental civil rights: [D]espite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate to make the hammer fall heavily, where the acts of these departments, or of any official, betray the peoples will as expressed in the Constitution. [Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Association of Small Landowners of the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343 (1989); emphasis supplied]

Under this regime, the Honorable Court is petitioners only ally in upholding their inalienable civil rights under the Constitution, most especially the following indisputable entitlements under the Bill of Rights: RIGHT TO DUE PROCESS OF LAW RIGHT TO EQUAL PROTECTION OF THE LAWS

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. RIGHT TO PRIVACY OF COMMUNICATION AND CORRESPONDENCE

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. RIGHT TO FREE SPEECH AND EXPRESSION

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

RIGHT AGAINST DOUBLE JEOPARDY

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Now more than ever, therefore, with all due respect, the power of judicial review must not be abrogated or abandoned by the Honorable Court. Otherwise, the other branches of Government will be able to operate as they very well please even beyond their fences, to the detriment of citizens. The sovereign citizens have entrusted to the Honorable Court the immense power and authority of the judicial pen to hold sway the purse and the sword to their own allocated places under the Constitution. Beyond dispute, judicial review is not supremacy but duty. Verily, when the Judiciary mediates to allocate constitutional boundaries or invalidates the acts of a co-equal body, it is upholding not its own supremacy but the supremacy of the Constitution, particularly when the most cherished and jealously guarded civil rights that are protected by no less than the Constitution hang in the balance. Similarly, judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them." As it is,"[j]udicial review is the chief, indeed

the only, medium of participation or instrument of intervention of the judiciary in that balancing operation." [Francisco v. House of Representatives, 415 SCRA 44 (2003)] It is precisely for this reason that petitioners assail the constitutionality and legality of the following Assailed Provisions of the Cybercrime Prevention Act: (1) SECTION 4(c)(4) separately criminalizing acts of libel, as defined under Article 355 of the Revised Penal Code, as amended, that are committed through a computer system or any other similar means that may be devised in the future (Cyber Libel); (2) SECTION 5 criminalizing acts that aid or abet the commission of any offense punishable under the Cybercrime Prevention Act, as well as the attempt to commit the same, including Section 4(c)(4) on Cyber Libel; (3) SECTION 6 imposing a higher penalty for the commission of any offense punishable under the Cybercrime Prevention Act, i.e., one (1) degree higher than that provided under the Revised Penal Code, as amended, and special laws; (4) SECTION 7 providing that a prosecution under the Cybercrime Prevention Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws;
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(5)

SECTION 12 authorizing any and all law enforcement authorities, with due cause, to collect and/or record by technical or electronic means traffic data in real-time without prior judicial warrant, sanction and/or approval; and

(6)

SECTION 19 authorizing the Department of Justice (DOJ) to restrict and/or block access to computer data that are prima facie found to be violative of the provisions of the Cybercrime Prevention Act.

(7)

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

In view of the constitutional and legal infirmity of the Assailed Provisions, petitioners hereby invoke the Honorable Courts power of judicial review and comes now before the Honorable Court with an earnest plea to correct a grave and serious injustice and transgression of the Constitution that impinge upon petitioners most cherished and jealously guarded fundamental civil rights, which include, as previously mentioned, Sections 1, 2, 3, 4, and 21, Article III of the Constitution. As it stands, the Cybercrime Prevention Act is a quantum leap backwards that destroys the very fabric of the free exchange of ideas that has allowed democracy to thrive in this country.
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Moreover, the Cybercrime Prevention Act is contrary to the commitment to transparency that the present dispensation has supposedly championed. It is likewise unfortunate to note that the Legislative and Executive Branches of Government chose to prioritize the passage of an over-reaching law that curtails citizens rights and effectively shepherds the nation to the Cyber Dark Ages, as opposed to enacting laws that promote transparency and good governance, such as the Freedom of Information Bill. Further, a great number of our Overseas Filipino Workers (OFWs), who are heralded as modern-day heroes, certainly look forward to and expect the benefits of their constitutionallyguaranteed right to free speech, which they most probably do not enjoy as much, if at all, in the countries where they are deployed. They will be much affected by the draconian statute. Moreover, Cybercrime Prevention Act is a direct assault to the time-honored principle of each citizens right to privacy, which is the inalienable right of an individual to be let alone. This much was enunciated by Justice Louis Brandeis of the United States Supreme Court in his dissent in Olmstead v. United States, 277 U.S. 438 (1928), viz.: The right to be let alone the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

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The Honorable Court has likewise accorded due deference to the right to be let alone. In City of Manila v. Laguio 455 SCRA 308 (2005), the Honorable Court held that the right to be let alone is the beginning of all freedom it is the most comprehensive of rights and the right most valued by civilized men. By its very nature and purpose, the concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. The right to be let alone is a fundamental right that extends to the information platforms and media offered by technology. A simple post or shout-out through a Twitter account or Facebook page may, to some, be undeserving of legal protection. However, such seemingly simple and mundane acts of sharing opinions and perspectives on various subject matters may well be considered as the natural consequence of the evolving concept of the right to privacy, the right to be let alone. More so, it should be underscored that a person does not waive, shed or otherwise give up his right to privacy simply because he or she used a different medium of communication, such as the internet. It is unfortunate, even alarming, to note that although the Legislature had all the opportunity to craft a law that is, and should be, responsive to the evolving times, it instead produced a Panopticon that will not hesitate to strike down any and all online acts and utterances that are deemed undesirable and

unacceptable according to the fleeting and subjective standards of law enforcement authorities, without the benefit of any judicial oversight or sanction. Given these grave circumstances, the

11

President had the corresponding opportunity, even the duty, to veto the all-embracing law on behalf of millions of freedom-loving citizens yet he did not see it fit to protect, preserve and advance the rights of his constituents in the face of a mammoth legislation. As a result, a regime of round-the-clock surveillance a constant axe hanging overhead, read to strike effectively chills and silences legitimate action, thought, free discussion, and dissent. Indeed, as consistently held by the Honorable Court, in the realm of the political life of a nation, debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. [Adiong v. Commission on Elections, 207 SCRA 712 (1992); New York Times Co. v. Sullivan, 376 U.S. 254 (1964]] When, as in this case, the Legislative and Executive Branches of Government act in complete defiance of the clear letter and spirit of the Constitution, it is the sacred duty of the Honorable Court to uphold the fundamental law and, consequently, strike down the Assailed Provisions in order to affirm the most cherished and jealously guarded fundamental rights of citizens under the aegis of a democracy that was painfully fought for by great forebears who stand to be dishonored and disgraced by the implementation of legislation that is unprecedented in the manner by which it seeks to curtail the rights of the very citizens that are the beneficiaries of freedom fought and won until now.

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Otherwise, fear would be abundant as fundamental freedoms fall by the wayside. NATURE AND TIMELINESS OF THE PETITION This is a Petition under Rule 65 of the Rules of Court for Certiorari and Prohibition seeking to nullify and enjoin the implementation of the Assailed Provisions of the Cybercrime Prevention Law, as well as the other provisions that flow therefrom. Significantly, the Honorable Courts judicial power, as

anchored on Article VIII, Section 1 of the Constitution, includes the duty to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch of the Government, particularly with respect to the passage of the Cybercrime Prevention Act and its Assailed Provisions: Section 1. x x x Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. [Emphasis supplied] In the instant case, the requisites for the Honorable Courts exercise of its power of judicial review are present, namely: (1) there is actual case or controversy calling for the exercise of judicial power; (2) petitioners have legal standing and personal and substantial interests to challenge the Assailed Provisions considering that petitioners will sustain direct injury as a result of the

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implementation and/or enforcement thereof; (3) the question of constitutionality is raised at the earliest possible opportunity; and (4) the issue of constitutionality is the very lis mota of the instant Petition. [Francisco v. House of Representatives, 415 SCRA 44 (2003)] The Instant Petition Presents An Actual Controversy That Necessitates The Exercise Of Judicial Review A justiciable controversy has been defined as one where there is an actual controversy, or the ripening seeds of one exists between the parties, all of whom are sui juris and before the court, and that the declaration sought will help in ending the controversy. A doubt becomes a justiciable controversy when it is translated into a claim of right which is actually contested. [International Hardwood and Veneer Company of the Philippines v. University of the Philippines and Jose C. Campos, Jr., 200 SCRA 554 (1991)] A case is ripe for adjudication when something had by then been accomplished or performed by either branch. [Tan v. Macapagal, 43 SCRA 677 (1972)] In the instant case, an actual controversy exists considering that the Cybercrime Prevention Act, including the Assailed Provisions, have already taken effect, as of 03 October 2012, thus, bringing about an actual violation of the Constitution. Accordingly, where a violation of the Constitution has occurred, the issue is a justiciable controversy. The question, therefore, of whether there has been compliance with or violation of the most cherished and jealously guarded fundamental civil rights

14

under the Constitution is for the Honorable Court to pass upon. [Disomangcop v. Datumanong, 444 SCRA 203 (2004), citing Taada v. Angara, 272 SCRA 18 (1997)] Petitioners Have The Requisite Legal Standing To Institute And Maintain The Instant Petition In Pimentel v. Office of the Executive Secretary, et al., 462 SCRA 622 (2005), the Honorable Court discussed the issue of legal standing as follows: The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed. [Legaspi v. Civil Service Commission, 150 SCRA 530 (1987)] The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. Legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term interest is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. [Joya v. Presidential Commission on Good Government, 225 SCRA 568 (1993)] xxx The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. [Gonzales v. Narvasa, 337 SCRA 733 (2000)] Petitioners have legal standing to institute and maintain the instant Petition considering that the matter at bar involves an issue of

15

utmost

and

far-reaching

constitutional

importance,

i.e.,

the

constitutionality of the Assailed Provisions of the Cybercrime Prevention Act, which are in direct contravention with the most cherished and jealously guarded fundamental civil rights the enshrined in the Constitution. [Kilosbayan Foundation, et al. v. Executive Secretary, et al., 526 SCRA 353 (2007)] Thus, the instant Petition is filed to ensure that the questioned official acts of the Legislative and Executive Branches of the Government are within the limits allowed by the Constitution. In any event, the Honorable Court has highlighted its liberal stance with respect to a petitioners locus standi where said petitioner raises an issue of transcendental significance and importance to the people, as in the case of the instant Petition considering the broad effect of the Assailed Provisions on the most cherished and jealously guarded fundamental civil rights under the Constitution that are intrinsic and inalienable. [Tatad v. Secretary of Energy, 281 SCRA 330 (1997); Garcia v. Executive Secretary, 211 SCRA 219 (1992); Osmea v. Commission on Elections, 199 SCRA (1991); Basco v. Philippine Amusements and Gaming Corporation, 197 SCRA 52 (1991); Daza v. Singson, 180 SCRA 496 (1989), Araneta v. Dinglasan, 84 Phil. 368 (1949)] As will further be discussed below, the determination of the constitutionality of the Assailed Provisions, which involves the curtailment of the most cherished and jealously guarded

fundamental civil rights under the Constitution, is no doubt an issue of transcendental significance and importance.

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The Constitutionality Of The Assailed Official Acts Is Being Raised At The Earliest Possible Opportunity As previously stated, the jurisdiction of the Honorable Court is hereby invoked owing to an actual case or a justiciable controversy that arose when, in grave abuse of discretion amounting to lack or excess of jurisdiction, the Legislative and Executive Branches of Government enacted the Cybercrime Prevention Act, including the Assailed Provisions, in spite of its clear and unmistakable

contravention with the Constitution. Considering that the Cybercrime Prevention Act took effect on 03 October 2012, petitioners hereby assail the constitutionality and legality thereof at the earliest possible opportunity and within the reglementary period provided for under Sections 1 and 2 of Rule 65 of the Rules of Court. The Constitutionality Of The Assailed Official Acts Is The Very Lis Mota Of The Instant Controversy Petitioners hereby respectfully submit and contend that the Assailed Provisions violate the clear letter and spirit of the Constitution. Moreover, what is assailed by the instant Petition is not merely the Assailed Provisions themselves but also the grave abuse of discretion on the part of the Legislative and Executive Branches of Government in enacting the Cybercrime Prevention Act, including the Assailed Provisions thereof, in spite of constitutional and legal infirmities.

17

Therefore, there is no other course than to rule on the constitutional issue as it is unavoidably necessary to the decision of the instant Petition. [Sotto v. Commission on Elections, 76 Phil. 516 (1946); Luz Farms v. Secretary of Agrarian Reform, 192 SCRA 51 (1990)] Indeed, the Assailed Provisions cannot be implemented without first determining their conformity with the fundamental law of the land. Other Procedural Considerations Considering that the issues raised are of paramount

importance and affect the most cherished and fundamental rights of citizens, it is respectfully submitted that the Honorable Court should take cognizance of the instant Petition immediately. Further, the writs of certiorari and prohibition are invoked by petitioners on the ground that there is no other plain, speedy, and adequate remedy to them in the ordinary course of law and procedure other than to institute the instant Petition to nullify the Assailed Provisions. Petitioners, thus, avail of the instant Petition pursuant to Sections 1 and 2 of Rule 65 of the Revised Rules of Court. Through the writs of certiorari and prohibition, it is humbly sought that judgment be rendered annulling the Assailed Provisions and prohibiting their subsequent implementation and/or

enforcement in any manner whatsoever. The Cybercrime Prevention Act was published in two (2) newspapers of general circulation in the Philippines on 18 September 2012 and, pursuant to Section 31 thereof, took effect on
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03 October 2012. Under Section 4 of Rule 65 of the Rules of Court, the instant Petition may be filed not later than sixty (60) days from notice of the act sought to be enjoined. Thus, the instant Petition is timely and seasonably filed and the issue ripe for judicial review. THE PARTIES 1. Petitioners, who are directly and adversely affected by

the implementation of the Assailed Provisions, are suing in their capacities as citizens and taxpayers of the Republic of the Philippines, all of whom are of legal age, Filipinos, and may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, through the undersigned counsel: 1.1. PETITIONER ANTHONY IAN M. CRUZ is an

active social media user, owner of the tech and political blog tonyocruz.com and the Twitter account

@tonyocruz, president of consumer and netizen group TXTPower.org, Inc., and a social media strategist by profession. He is a previous winner in the Philippine Blog Awards. 1.2. PETITIONER MARCELO R. LANDICHO is an

active social media user and owner of the political humor site The Professional Heckler and the Twitter account @HecklerForever. His blog has won repeatedly in the Philippine Blog Awards.

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1.3.

PETITIONER BENJAMIN NOEL A. ESPINA is an

active social media user, owner of Atheista.net and the Twitter account @atheista, and a social media analytics director by profession. He is a previous winner in the Philippine Blog Awards. 1.4. PETITIONER MARCK RONALD C. RIMORIN is an

active social media user, owner of the blog Marocharim Experiment and the Twitter account @marocharim, and a social media intelligence director by profession. He is a previous winner in the Philippine Blog Awards. 1.5. PETITIONER JULIUS D. ROCAS is an active

social media user, owner of blog The Four Eyed Journal and the Twitter account @jhayrocas, and an online publisher by profession. 1.6. PETITIONER OLIVER RICHARD V. ROBILLO is an

active social media user, owner of several blogs and the Twitter account @blogie, and a social media consultant by profession. He is one of the founders of the Mindanao Bloggers Community. 1.7. active PETITIONER AARON ERICK A. LOZADA is an media user, and owner Twitter of the blog

social

PinoyGossipboy.ph

account

@pinoygossipboy, and a student of the College of Law of the University of the Philippines.

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1.8.

PETITIONER GERARD ADRIAN P. MAGNAYE is

an active social media user, owner of the blog Noisy Noisy Man and the Twitter account @ademagnaye, and a social media officer by profession. 1.9. active PETITIONER JOSE REGINALD A. RAMOS is an media user, owner of the blog

social

dronthego.net and the Twitter account @dronthego, contributor to the tech blog Technoodling and a freelance internet contractor by profession. 1.10. PETITIONER MA. ROSARIO T. JUAN is an active social media user, convenor of Twitter meetup

organizing group TweetUpMNL, owner of Twitter account @juanxi and an entrepreneur and a social media strategist by profession. 1.11. PETITIONER BRENDALYN P. RAMIREZ is an active social media user, owner of the blog Brendarna and the Twitter account @BryRamirez and a digital accounts manager by profession. 1.12. PETITIONER MAUREEN A. HERMITANIO is an active social media user, owner of the Twitter account @mobilemaui, a contributor to the Philippine Online Chronicles and BlogWatch.ph, and a government employee. 1.13. PETITIONER KRISTINE JOY S. REMENTILLA is an active social media user, owner of the
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blog www.tinrementilla.com and the Twitter account @tin_rementilla, and a social media manager by profession. 1.14. PETITIONER MARICEL O. GRAY is an active social media user, a developer belonging to the Google Developers Community, owner of the Twitter account @cellofoodiegeek and an IT business development executive by profession. 1.15. PETITIONER JULIUS IVAN F. CABIGON is an award-winning advertising professional, digital marketing practitioner, and active social media user heavily reliant on the internet for his craft. 1.16. PETITIONER BENRALPH S. YU is an active social media user, owner of the Twitter account

@wherehaveyouben, and a multi-awarded student, leader and scholar at the University of the Philippines, Manila. 1.17. PETITIONER RUBEN B. LICERA JR. is president of CEBU BLOGGERS SOCIETY INC. (CBSI), the country's first bloggers association registered with the Securities and Exchange Commission, an active social media user, owner of several blogs and of the Twitter account @rubenlicera and an online marketing specialist by profession.

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1.18. PETITIONER PEDRO E. RAHON is the ManilaLuzon coordinator of the PINOY EXPAT/OFW BLOG AWARDS INC. (PEBA), an active social media user, owner of the blog "Pinoy Chocophile", and a migrant worker advocate by profession. 2. RESPONDENT HON. BENIGNO S. AQUINO III, President of

the Republic of the Philippines, signed the Cybercrime Prevention Act into law on 12 September 2012, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the Office of the President, Malacaang Palace, City of Manila. 3. RESPONDENT SENATE OF THE PHILIPPINES, represented by

Senate President Juan Ponce Enrile, passed the consolidated version of Senate Bill No. 2796 and House Bill No. 5808 on 05 June 2012, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the Senate of the Philippines, GSIS Building, Financial Center, Roxas Boulevard, Pasay City. 4. RESPONDENT HOUSE OF REPRESENTATIVES, represented by

Speaker Feliciano R. Belmonte, Jr., passed the consolidated version of Senate Bill No. 2796 and House Bill No. 5808 on 04 June 2012, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the House of Representatives, Batasang Pambansa Complex, Batasan Road, Quezon City.

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5.

RESPONDENT PAQUITO N. OCHOA, JR., the Executive

Secretary, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the Office of the Executive Secretary, Malacaang Palace, City of Manila. 6. RESPONDENT LEILA M. DE LIMA, the Secretary of Justice,

one of the government officials whose agency is specifically designated to implement the Cybercrime Prevention Act, including the Assailed Provisions, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the DOJ Main Building, Padre Faura, City of Manila. 7. RESPONDENT LOUIS NAPOLEON C. CASAMBRE, Executive

Director of the Information and Communications Technology Office (ICTO) under the Department of Science and Technology (DOST), one of the government officials whose agency is specifically designated to implement the Cybercrime Prevention Act, including the Assailed Provisions, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the NCC Building, CP Garcia Avenue, Diliman, Quezon City. 8. RESPONDENT NONNATUS CAESAR R. ROJAS, Director of

the National Bureau of Investigation (NBI), one of the government officials whose agency is specifically designated to implement the Cybercrime Prevention Act, including the Assailed Provisions, may be served with orders and legal processes of the Honorable Court,
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as well as with pleadings, papers and other documents, at the NBI Headquarters, Taft Avenue, City of Manila. 9. RESPONDENT NICANOR A. BARTOLOME, Chief of the

Philippine National Police (PNP), one of the government officials whose agency is specifically designated to implement the

Cybercrime Prevention Act, including the Assailed Provisions, may be served with orders and legal processes of the Honorable Court, as well as with pleadings, papers and other documents, at the PNP Headquarters, Camp Crame, Quezon City. 10. Pursuant to Section 22, Rule 3 of the Rules of Court, a

copy of the instant Petition is likewise served upon the OFFICE OF THE SOLICITOR GENERAL, through its office at 134 Amorsolo Street, Legaspi Village, Makati City. STATEMENT OF FACTS 1. On 04 June 2012, respondent House of Representatives

passed the Cybercrime Prevention Act, which is a consolidation of Senate Bill No. 2796 and House Bill No. 5808. 2. On 05 June 2012, respondent Senate of the Philippines

passed the Cybercrime Prevention Act, which is, as previously stated, a consolidation of Senate Bill No. 2796 and House Bill No. 5808. 3. On 12 September 2012, respondent Aquino signed the

Cybercrime Prevention Act into law, a certified true copy of which is attached to the instant Petition as Annex A, while photocopies of

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the said certified true copy are attached to the other copies of the instant Petition. 4. On 18 September 2012, the Cybercrime Prevention Act

was published in two (2) newspapers of general circulation in the Philippines. 4.1. Section 31 of the Cybercrime Prevention Act

provides that said law shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation. 4.2. Therefore, the Cybercrime Prevention Act

took effect on 03 October 2012. 5. Considering that the foregoing facts are matters of

public knowledge, as well as official acts, petitioners respectfully submit that the same should be given judicial notice by the Honorable Court, pursuant to Sections 1 and 2, Rule 129 of the Rules of Court.

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GROUNDS I SECTION 12 OF THE CYBERCRIME PREVENTION ACT IS PATENTLY UNCONSTITUTIONAL CONSIDERING THAT IT VIOLATES AN INDIVIDUALS 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 NUGATORY. II SECTION 12 OF THE CYBERCRIME PREVENTION ACT IS PATENTLY UNCONSTITUTIONAL CONSIDERING THAT IT VIOLATES AN INDIVIDUALS RIGHT TO UNREASONABLE SEARCHES AND SEIZURES. AND CORRESPONDENCE,

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III 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 1, ARTICLE III OF THE CONSTITUTION, FOR FAILING TO IN PROVIDE ITS ANY PROCEDURAL AND/OR SAFEGUARDS IMPLEMENTATION

ENFORCEMENT. B. SECTION 19 OF THE CYBERCRIME PREVENTION ACT IS VIOLATIVE OF THE RIGHT OF CITIZENS AGAINST UNREASONABLE 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 III 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 1, ARTICLE III OF THE CONSTITUTION AND OF THE FREE SPEECH CLAUSE UNDER SECTION 4, ARTICLE III OF THE CONSTITUTION. SEARCHES AND SEIZURES, AS PROVIDED UNDER SECTION 2, ARTICLE III OF THE

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V 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 1, ARTICLE III OF THE CONSTITUTION.

DISCUSSION I. Section 12 Of The Cybercrime Prevention Act Is Patently Unconstitutional Considering That It Violates An Individuals Right To Privacy And The Privacy Of Communication And Correspondence. Section 12 of the Cybercrime Prevention Act allows law enforcement authorities unbridled authority to collect or record data with respect to a communications origin, destination, route, time, date, size, duration, or type of underlying service in real time without prior judicial warrant: Section 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities. All other data to be collected or seized or disclosed will require a court warrant. Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

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The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. [Emphasis and underscoring supplied] This is, for all intents and purposes, search and seizure before a determination of probable cause occurs, violating Sections 2 and 3, Article III of the Constitution: Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. With all due respect, Section 12 is a blatant violation of an individuals right to privacy and of the privacy of communication and correspondence, as guaranteed by the Constitution. In fact, the existence of constitutionally, and statutorily protected zones of

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privacy has been consistently recognized by the Honorable Court. In Ople v. Torres, 293 SCRA 141 (1998), the Honorable Court explained thus: Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. The essence of privacy is the right to be let alone. In the 1965 case of Griswold v. Connecticut, the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, x x x In the 1968 case of Morfe v. Mutuc, we adopted the Griswold ruling that there is a constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held: xxx xxx xxx The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. It has wider implications though. The constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: 'The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a

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system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights: Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz: Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx xxx xxx

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Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. xxx xxx xxx. Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 17. No person shall be compelled to be a witness against himself. [Emphasis and underscoring supplied] The discussion on the right to privacy was reiterated in Miguel v. Gordon, 504 SCRA 704 (2006), wherein the Honorable Court held that in evaluating a claim for violation of privacy, it must be determined whether a person has a reasonable expectation of privacy, and whether Government intrusion has violated such exception: Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a constitutional right and the right most valued by civilized men, but also from our adherence to the Universal Declaration of Human Rights which mandates that, no one shall be subjected to arbitrary interference with his privacy and everyone has the right to the protection of the law against such interference or attacks. Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person's right to be let alone or the right to determine what, how

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much, to whom and when information about himself shall be disclosed. Section 2 guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. Section 3 renders inviolable the privacy of communication and correspondence and further cautions that any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. [Emphasis and underscoring supplied] With all due respect, it is submitted that Section 12 of the Cybercrime Prevention Act is patently unconstitutional as it violates an individuals right to privacy and of privacy of communication and correspondence. The other provisions of the Cybercrime Prevention Act that flow from the Assailed Provision likewise suffer the same fatal flaw, including the provisions that authorize the disbursement of public funds for the implementation of the law. A. An Individual Has A Reasonable Expectation Of Privacy Of Personal Electronic Data, As Well As Communications And Correspondence.

In Pollo v. Constantino-David, 659 SCRA 189 (2011), the Honorable Court, adopted the ruling of the United States Supreme Court in Katz v. United States, 389 U.S. 437 (1967), wherein it was

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explained that the use of the telephone in an enclosed booth constitutes a reasonable expectation of privacy: In the 1967 case of Katz v. United States, the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a search and seizure. Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective). In United States v. Andrus, 483 F.3d 711 (10th Cir. 2007), the United States Court of Appeals for the Tenth Circuit held that computers contain a repository of private information over which owners have a reasonable expectation of privacy: Courts considering the issue have attempted to analogize computers to other items more commonly seen in Fourth Amendment jurisprudence. Individuals' expectations of privacy in computers have been likened to their expectations of privacy in a suitcase or briefcase. United States v. Aaron, 33 Fed.Appx. 180, 184 (6th Cir.2006) (unpublished). Password-protected files have been compared to a locked footlocker inside the bedroom. Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir.2001). Given the pervasiveness of computers in American homes, this court must reach some, at least tentative, conclusion about the category into which personal computers fall. A personal computer is often a repository for private information the computer's owner does not intend to share with others. [F]or most people, their computers are their most private spaces. People commonly
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talk about the bedroom as a very private space, yet when they have parties, all the guests including perfect strangers are invited to toss their coats on the bed. But if one of those guests is caught exploring the host's computer, that will be his last invitation. United States v. Gourde, 440 F.3d 1065, 1077 (9th Cir.2006) (en banc) (Kleinfeld, J., dissenting). See generally Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531, 569 (2005) ([C]omputers are playing an ever greater role in daily life and are recording a growing proportion of it. . . . [T]hey are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more. . . . Each new software application means another aspect of our lives monitored and recorded by our computers.). Because intimate information is commonly stored on computers, it seems natural that computers should fall into the same category as suitcases, footlockers, or other personal items that command[] a high degree of privacy. Salinas-Cano, 959 F.2d at 864. [Emphasis and underscoring supplied] Further, in Katz v. United States, supra, the United States Supreme Court held that a person has a reasonable expectation of privacy over private communications except what a person knowingly exposes to the public: For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 210; United States v. Lee, 274 U. S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S. 727, 733. The Cybercrime Prevention Act allows law enforcement authorities to monitor and record traffic data associated with specified communications transmitted by means of a computer

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system. Traffic Data is defined under Section 12 of the Cybercrime Prevention information: Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities. Notably, Section 3(p) of the Cybercrime Prevention Act categorically defines Traffic Data as non-content data, yet it does not limit the same to the enumeration contained therein: (p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communications origin, destination, route, time, date, size, duration, or type of underlying service. The dichotomy of the foregoing provisions notwithstanding, Section 12 of the Cybercrime Prevention Act violates the Act as supposedly limiting itself to non-content

constitutional right to privacy and of privacy of communication and correspondence. To reiterate, an individual loses his right to privacy over electronic data only when one intends the same to be made public. Likewise, in Guest v. Leis, 225 F. 3d 325, 333 (6th Cir. 2001), the United States Court of Appeals for the Sixth Circuit held that information voluntarily conveyed to a systems operator is outside the scope of the reasonable expectation of privacy: Courts have applied this principle to computer searches and seizures to conclude that computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it
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to another person-the system operator. See Maxwell, 45 M.J. at 418; United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (rejecting a privacy interest in subscriber information communicated to an internet service provider) Clearly, from the foregoing, an individual loses his reasonable expectation of privacy only when there is a voluntary act of disclosing the same. In the case at hand, even in the event that no such voluntary act exists, law enforcement authorities are granted unbridled discretion to monitor and record traffic data despite the lack of relinquishment of an individuals reasonable expectation of privacy over the same. An individuals traffic data is vastly different from subscriber data, or even email addresses, which an individual voluntarily discloses in the course of utilizing electronic media. Most individuals reasonably expect that their electronic transactions or

communications sent from the sanctity of their own homes and personal electronic communication devices (over which there is a recognized reasonable expectation of privacy) shall remain private and inviolable. Pertinently, in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), it was ruled that even email that passes through a third party Internet Service Provider (ISP) is still covered by the protection of the right to privacy: In confronting this question, we take note of two bedrock principles. First, the very fact that information is

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being passed through a communications network is a paramount Fourth Amendment consideration. See ibid.; United States v. U. S. Dist. Court, 407 U.S. 297, 313 (1972) ([T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.). Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (noting that evolving technology must not be permitted to erode the privacy guaranteed by the Fourth Amendment); see also Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (arguing that the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment). xxx If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISPs servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscribers emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception. [Emphasis and underscoring supplied] Although, through the dichotomy, the Cybercrime Prevention Act makes a feeble attempt to avoid unconstitutionality, the same is still violative of the Constitution. Section 12 states that the content

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and identity of the participants to the intercepted traffic data shall neither be monitored nor recorded. Nevertheless, traffic data encompasses the origin, destination, route, time, date, size, duration, or type of data. Once such data is acquired, it becomes easy for law enforcement authorities to verify identities through other methods. The acquisition of such data is the critical jump-off point for violations of an individuals right to privacy. Worse, Section 12 of the Cybercrime Prevention Act allows the collection or recording of traffic data connected to specified communications. No definition is provided with respect to the scope of specified communications. If this were taken to mean that law enforcement authorities possess a suspicion as to the nature of the communications, or the identity of the parties which they cannot substantiate, then the gathering of data relating to the origin, destination, route, time, date, size, duration, or type of such data would be in the nature of a fishing expedition which cannot be countenanced by the Honorable Court. [Roxas v. MacapagalArroyo, 630 SCRA 211 (2010)] Moreover, the distinction made that data other than traffic data to be seized or disclosed shall require a court warrant is nothing more than a paper distinction that cannot serve to protect an individuals reasonable expectation to privacy. To reiterate, once law enforcement authorities acquire the origin, destination, route, time, date, size, duration, or type of data, the content or identities of the parties are easily verifiable through other means. Consequently,

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the requirement of a court warrant to determine non-traffic data has been rendered nugatory. Finally, it is arguable that majority of the users of electronic media, such as the internet, are unaware that their messages or transactions contain traffic data, which under the Section 12 of the Cybercrime Prevention Act, may be monitored by law enforcement authorities under the convenient justification of due cause. The Constitution protects not only content and identity but all incidents/aspects of communication and correspondence,

including who a person chooses to talk to, how long that chooses to correspond with them, the manner by which they converse or correspond, among others. Thus, the whole process of

communication and correspondence is zealously protected by the Constitution and can only be curtailed by lawful warrant upon probable cause. Thats precisely the safeguard provided for by the judicial process, which the Assailed Provisions totally disregard. There being no relinquishment of the reasonable expectation of privacy over the same, traffic data cannot be subjected to seizure by law enforcement authorities under the flimsy excuse of due cause as an individual has a reasonable expectation of privacy over the same. Everyone has a right to privacy,

communication and correspondence that should be respected.

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B.

Section 12 Of The Cybercrime Prevention Act Constitutes An Unreasonable Government Intrusion As It Lacks Safeguards Against Possible Abuses By Possessors Of Acquired Data.

With all due respect, it is submitted that Section 12 of the Cybercrime Prevention Act constitutes unreasonable Government intrusion into an individuals right to privacy and of privacy of communication and correspondence as it lacks any safeguards whatsoever against possible abuse of the data acquired. In Ople v. Torres, supra, the Honorable Court held that the absence of safeguards for the potential misuse of data gathered through government regulation is a potential threat to the Bill of Rights. Likewise, indefiniteness as to the purpose of the data to be gathered will give rise to potential abuses by authorities. In said case, Administrative Order No. 308 required the use of biometric scanners to record all government transactions of an individual. The Honorable Court held that the absence of guidelines and safeguards constitutes a violation of the right to privacy: x x x Considering the banquet of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless. x x x This is an admission that the PRN will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN.

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The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. In the instant case, even a cursory perusal of Section 12 reveals a dearth of information as to what purpose the data gathered shall be used for. Nowhere in Section 12 can be seen the limits of the use of the data gathered by law enforcement authorities. Simply put, under Section 12, law enforcement

authorities are given the unrestrained power to secure data for whatever purpose they may deem fit. This is patently contrary to the Honorable Courts pronouncement in Ople v. Torres, supra. Notably in Ople v. Torres, supra, the offending law likewise attempted to make a distinction between certain forms of data without specifying how such data shall be segregated. To this, the Honorable Court ruled thus: We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal information about the individual. Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not
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tell us in clear and categorical terms how these information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. [Emphasis and underscoring supplied] Applying the foregoing to the instant case, Section 12 likewise attempts to distinguish between traffic and non-traffic data without providing the procedure of segregating the same. Moreover, the Cybercrime Prevention Act is bereft of safeguards to control the access and handling of such data. Neither does the Cybercrime Prevention Act guarantee the integrity of such data, nor does it provide measures against possible leakage of information. From the foregoing, it is clear the threat of potential abuse enunciated in Ople v. Torres, supra, is likewise extant in the Cybercrime Prevention Act. Section 12 thereof, if left unabated, would invite potential misuse of data gathered and sanction violations of the right to privacy. Thus, Section 12 is an unwarranted Government intrusion into an individuals reasonable expectation of privacy and should, therefore, be struck down and declared unconstitutional.

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C.

Section 12 Of The Cybercrime Prevention Act Constitutes An Unreasonable Government Intrusion As It Renders Existing Safeguards Against Invasion Of Privacy, As Well As Communications And Correspondence, Nugatory.

The Honorable Court has conclusively ruled that the right to privacy is protected not only by the Constitution, but by statutory law as well. In Marquez v. Desierto, 359 SCRA 772 (2001), the Honorable Court held thus: Zones of privacy are recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime of the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code. [Emphasis and underscoring supplied] Moreover, the provisions on the Rules of Court regarding the privacy or confidentiality of certain information are a form of protection of an individuals right to privacy. [Ople v. Torres, supra] In light of the importance placed on an individuals right to privacy, the Honorable Court has promulgated A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data. Section 1 of the same states

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that the writ of habeas data is a remedy available to persons whose right to privacy in life, liberty or security is threatened: Section 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. [Emphasis and underscoring supplied] In Rodriguez v. Macapagal-Arroyo, 660 SCRA 84 (2011), the Honorable Court explained that the writ of habeas data is a remedy to protect a persons right to control information regarding oneself. It is a remedy to protect informational privacy: Meanwhile, the writ of habeas data provides a judicial remedy to protect a person's right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends. As an independent and summary remedy to protect the right to privacy especially the right to informational privacy the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification. Section 12 of the Cybercrime Protection Act renders the remedy of the Writ of Habeas Data nugatory and irrelevant. To reiterate, the Writ of Habeas Data seeks to prevent the unwarranted intrusion of public officials, such as law enforcement authorities, into ones private information, yet Section 12 of the Cybercrime
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Protection Act allows law enforcement authorities to collect and monitor traffic data on the flimsy justification of due cause. Clearly, the Cybercrime Protection Act sanctions the evils which the Writ of Habeas Data seeks to prevent. Moreover, as discussed, there is no limitation present under Section 12 of the Cybercrime Prevention Act with regard to the purpose of the collection and monitoring of traffic data, as well as the allowable ends within which law enforcement authorities may utilize such seized data. It does not require a stretch of logic to conclude that nothing in Section 12 of the Cybercrime Prevention Act hinders law enforcement authorities from potentially using gathered data to perpetuate violations against an individuals right to privacy with respect to life, liberty, and security. Finally, the Writ of Habeas Data seeks to protect individuals from threats to the right to privacy in life, liberty or security from unlawful acts of public officials. Section 12 of the Cybercrime Prevention Act is wholly contrary to the foregoing since it provides government sanction to actions of law enforcement authorities, which would otherwise be an unlawful intrusion into an individuals right to privacy. From the foregoing, it is clear that Section 12 of the Cybercrime Prevention Act seeks to render the Honorable Courts laudable actions to safeguard an individuals right to privacy nugatory. This cannot be countenanced and thus Section 12 of the Cybercrime Prevention Act must be struck down.

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II.

Section 12 Of The Cybercrime Prevention Act Is Patently Unconstitutional Considering That It Violates An Individuals Right To Unreasonable Searches And Seizures. Section 2, Article III of the Constitution, which is recognized as

a form of protection of an individuals right to privacy, provides the standard of probable cause before searches and seizures may be conducted: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in

themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. [People of the Philippines v. Tan, 634 SCRA 773 (2010)] Pertinently, Section 12 of the Cybercrime Prevention Act allows law enforcement authorities to collect or record an individuals traffic data upon the existence of due cause. However, the terms collect and record are, in reality, euphemisms for seizure without due process of law. Thus, the foregoing is patently contrary to the constitutional protection against unwarranted searches and seizures.

48

First of all, neither the Cybercrime Prevention Act, nor other pertinent laws, define due cause. Thus the absence of a standard of due cause allows law enforcement authorities to determine for themselves whether or not the recording or collecting of data is necessary or lawful. Moreover, the possibility exists that law enforcement authorities may set a standard far below the standard of probable cause for the seizure of data under Section 12. Further, as initially discussed, the seizure of data espoused under Section 12 is not anchored on a specific purpose for the collection of the same. Section 12 does not state the purpose for the seizure or use of such data, e.g. for criminal prosecutions, etc. The consequence of the foregoing is that law enforcement authorities are granted nigh unlimited justification to intrude upon a persons right to privacy. This unbridled discretion granted to law

enforcement authorities effectively deprives an individual of his constitutionally assured protection against unwarranted searches and seizures, as well as his constitutional right to privacy and the privacy of communication and correspondence. Moreover, Section 12 of the Cybercrime Prevention Act allows the real-time monitoring and seizure of traffic data. In light of the unchecked discretion granted to law enforcement authorities to determine for themselves whether there exists a justification for resort to Section 12 of the Cybercrime Prevention Act, it opens the possibility to 24/7 surveillance by law enforcement authorities without probable cause as justification for the same. This clearly

49

constitutes an untoward intrusion into an individuals right to privacy and the privacy of communication and correspondence. From the foregoing, the vague standard of due cause cannot in any way whatsoever substitute for the recognized standard of probable cause found in the Constitution without violating an individuals right against unreasonable searches and seizures, as well as his right to privacy and the privacy of communication and correspondence. The other provisions of the Cybercrime Prevention Act that flow from the Assailed Provision likewise suffer the same fatal flaw, including the provisions that authorize the disbursement of public funds for the implementation of the law. III. 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 1, Article III Of The Constitution, For Failing To Provide Any Procedural Safeguards In Its Implementation And/Or Enforcement.

At the outset, Section 19 of the Cybercrime Prevention Act must be struck down for being unconstitutional. Among others, it violates the due process clause found under Section 1, Article III of the Constitution, which provides:

50

Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. In relation to the instant Petition, Section 19 of the Cybercrime Prevention Act particularly violates procedural due process. Procedural due process simply means procedural fairness. In the early case of Lopez v. Director of Lands, 47 Phil. 23, 32 (1924), procedural due process has been fittingly articulated to mean a law which hears before it condemns. Although admittedly the requirements of procedural due process may differ depending on the kind of proceeding, i.e. judicial or quasi-judicial, no one can deny the heart of due process is to provide a person a real and genuine (as opposed to illusory) opportunity to be heard and present his or her side. Even a cursory glance of the Cybercrime Prevention Act readily reveals that it does not provide any procedural rules and standards on how Section 19 shall be enforced, much less any procedure as to how persons affected or aggrieved by the implementation and/or enforcement may be heard in their defense. This will simply leave the DOJ with unbridled discretion to issue orders restricting and/or blocking access to computer data that allegedly are in prima facie violation of the Cybercrime Prevention Act, without, however, giving the owners of said targeted computer data even an iota of opportunity to explain why said computer data should not be restricted and/or blocked.

51

Interestingly, the quantum of evidence required under Section 19 of the Cybercrime Prevention Act to set into motion the authority given to the DOJ to issue restricting and/or blocking access to computer data is only the very low standard of prima facie evidence. It is of no secret that prima facie evidence is the lowest among the hierarchy of quantum of evidence needed to sustain valid a decision or action on the part of the government. In fine, this Honorable Court has defined prima facie evidence as "evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence". [Wa-acon v. People of the Philippines, 510 SCRA 429 (2006)] Although prima facie evidence may be contradicted by other evidence, it may very well be reiterated with the risk of being redundant that there are actually no procedural safeguards in the Cybercrime Prevention Act through which the affected or aggrieved persons may present such contradicting evidence. Hence, with such low degree of evidence required, coupled with the obvious dearth of procedures in the Cybercrime Prevention Act on how the persons affected or aggrieved by its

implementation could contest or contradict such prima facie evidence, there is clearly no doubt that the DOJ has now been given omnipotent power in issuing orders restricting and/or blocking access to computer data. In this regard, the DOJ can virtually bring down any website it deems unacceptable under the all-

encompassing pretense of prima facie evidence, without regard as to whether the aggrieved party has been able, much less given a

52

real opportunity, to present his side and defend himself. There can never be a justification for the menace to and the threat of abridging the most cherished and jealously guarded fundamental civil rights, particularly in this instance the right of the people to due process, which Section 19 of the Cybercrime Prevention Act inevitably creates. Thus, in view of the foregoing alone, Section 19 of the Cybercrime Prevention Act should be struck down for violating the Due Process Clause of the Constitution. The other provisions of the Cybercrime Prevention Act that flow from the Assailed Provision likewise suffer the same fatal flaw, including the provisions that authorize the disbursement of public funds for the implementation of the law. 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 III Of The Constitution.

Section 19 of the Cybercrime Prevention Act should likewise be declared null and void for being violative of Section 2, Article III of the Constitution, which provides: Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the

53

complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. It is clear from the foregoing provision that search and seizure warrants may only be issued by a judge after personally determining the existence of probable cause by examining the complainant and the witnesses he may produce. Section 19 of the Cybercrime Prevention Act clearly violates this constitutional provision. As it stands, Section 19 of the Cybercrime Prevention Act authorizes the DOJ to issue an order to restrict and/or block access to computer data that are prima facie in violation of the same law. It must be pointed out that restricting and/or blocking access to computer data has a very similar, if not the same, effect of seizing the target data. In essence, by restricting and/or blocking access to computer data, the author thereof is deprived of his ownership over his intellectual creation or his copyright over the data, while the owner or proprietor of the media where it was displayed, i.e. owner of a website, is deprived of his right to operate such site both in the same manner that an owner of a physical/tangible thing or object seized is deprived of his rights over said object. Thus, before restricting or blocking access to computer data must be authorized, the requirements for valid seizures as mandated under Section 2, Article III of the Constitution must be present and complied with. In this regard, Section 19 of the Cybercrime Prevention Act is clearly violative of Section 2, Article III of the Constitution, since it authorizes the issuance of a seizure warrant under the following circumstances: (1) issuance by a person, other than a judge; (2)
54

issuance on the basis of only a prima facie showing, instead of a finding of probable cause, of any violation of the provisions of the Cybercrime Prevention Act; and (3) issuance without the required examination under oath of a complainant and the witnesses that may be produced. Obviously, the strict safeguards against unreasonable seizures protected under the Constitution have been completely

disregarded, or worse, entirely eliminated. Thus, on this score, Section 19 of the Cybercrime Prevention Act should be adjudged unconstitutional and of no legal effect whatsoever. 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 III Of The Constitution.

Likewise, Section 19, in relation to Section 4(c)(4), of the Cybercrime Prevention Act, runs afoul with the constitutionally protected freedom of speech, particularly as it constitutes prior restraint. Prior restraint has been defined and understood as official governmental restrictions on the press or other forms of expressions in advance of actual publication or dissemination. x x x The mere prohibition of government interference before words are spoken or published would be an inadequate protection of the freedom of expression if the government could punish without restraint after publication. x x x Hence, the guarantee of freedom of expression also means a limitation on the power of the state to impose

55

subsequent

punishment.

[Joaquin

G.

Bernas,

SJ,

The

1987

Constitution of the Philippines: A Commentary (2009 ed.), at p. 253] Section 19 of the Cybercrime Prevention Act is undeniably prior restraint, in the form of subsequent punishment, i.e., the DOJs issuance of orders restricting or blocking access to computer data. This would definitely have a chilling effect on petitioners and citizens, thereby effective curtailing and rendering nugatory the

constitutionally safeguarded right to freedom of speech and of expression. In reality, no matter how innocent the wording of the law may be, Section 19 stifles a persons voice and covers his ears. It is a Cyber Gag Rule that cuts off individuals from one another. It silences the originator of communication and prevents the intended recipients from hearing the message, without regard for its legitimacy and protected nature under the Constitution. As such, Section 19 is a euphemism; the Government is actually telling its citizens to shut-up. It looks benign but, in reality, it means curtailment of the most cherished and jealously guarded civil rights under the Constitution. In Chavez v. Gonzales, 545 SCRA 441 (2008), the Honorable Court clarified that a law which has an effect of prior restrain is presumed to be unconstitutional and the government the

government bears a heavy burden of proving its constitutionality. Needless to state, courts should only sustain the constitutionality of law constituting prior restraint only if there is a showing that a compelling state interest necessitating such prior restraint, viz.:
56

Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn only to the extent necessary to protect or attain the compelling State interest. [Emphasis and underscoring supplied] In applying the foregoing doctrines to the instant Petition, there is clearly no showing of any state interest sufficient to compel and warrant upholding of the prior restraint, which Section 19 of the Cybercrime Prevention Act operationalizes. Measured even by this standard alone, the Assailed Provisions of the Cybercrime Prevention Act fails to pass constitutional scrutiny. 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 1, Article III Of The Constitution And Of The Free Speech Clause Under Section 4, Article III Of The Constitution. Section 4(c)(4) of the Cybercrime Prevention Act broadens the definition of libel provided in Article 355 of the Revised Penal Code, as amended. Notably, said provision adds the use of computer system or any other similar means that may be devised in the future as means of committing the crime of libel. Axiomatically,

57

the complexity of the cyber world cannot be disregarded and be put on the same footing as the conventional means of committing libel under the Revised Penal Code. Otherwise stated, the elements of libel cannot find application in the computer realm in the absence of specific definitions to govern the same. Section 4, Article III of the Constitution provides: Section. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. In Chavez v. Gonzales, supra, the Honorable Court

emphasized the importance of this constitutional guarantee: Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead. Verily, the Free Speech Clause prohibits both prior restraint and subsequent punishment that have the effect of unduly curtailing expression. This includes the chilling effect on protected speech that comes from statutes violating free speech. Truly, a person who

58

does not know whether his speech constitutes a crime or whether he will be prosecuted by the Government under an overbroad or vague law may simply refuse to speak to avoid being charged of a crime. The chilling effect results in deafening silence. This is exactly what Sections 4(c)(4), 5 and 6 of the Cybercrime Prevention Act perpetuate to the detriment of petitioners most cherished and jealously guarded civil rights under the Constitution. Petitioners do not doubt the intention of the law-makers in passing the Cybercrime Prevention Act. Petitioners are fully aware of the abuses and crimes which they intent to curtail such as child pornography and computer-related fraud, which they support completely. But the Government should not get ahead of itself and declare martial law within the cyber realm. Petitioners cannot emphasize enough that in this technological age, almost everyone is connected through computer systems, be it through the internet or applications in mobile phones. Sadly, the provisions of the law tend to deter the technologically advanced population from moving forward. Article 353 of the Revised Penal Code, as amended, defines libel, to wit: Art. 353. Definition of libel. A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. To be liable for the crime of libel, the following elements must be shown to exist: (a) the allegation of a discreditable act or
59

condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. [Brillante v. Court of Appeals, 440 SCRA 541 (2004)] Further, Article 355 of the Revised Penal Code provides that libel is committed by means of writing, printing, lithography, exhibition, engraving, radio,

phonograph,

painting,

theatrical

cinematographic

exhibition or any similar means. After the passage of the Cybercrime Prevention Act, added to the list is the use of computer systems and similar means as may be devised in the future: (4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. [Emphasis and underscoring supplied] Computer system on the other hand is defined in Section 3 of the Cybercrime Prevention Act as any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones xxx. Practically, computer system covers blogs, Facebook, Twitter and other platforms for social media interaction. However, how are the elements of libel applied in the use of computer systems? For instance, what constitutes publication? Is posting a status or comment on Facebook, considering that only your friends will see them, considered publication? Does liking, re-tweeting or sharing someones blog or post constitute publication?

60

To make matters worse, section 5 of the Cybercrime Prevention Act provides: Section 5. Other Offenses. The following acts shall also constitute an offense: (a). Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable. Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

(b).

How is aiding and abetting committed? Is sharing or reposting an alleged libelous blog a violation of the foregoing? Is lending your computer to a blogger who posted an alleged libelous article abetting? Clearly, the questions to the above cannot be answered with certainty, or at the very least, by merely reading the provisions thereof. Even a person who is skilled and well versed in computer technology will find it difficult to be apprised of what constitutes a violation of the foregoing provisions. Indeed, vagueness of the Assailed Provisions of the Cybercrime Prevention Act renders the same void. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law

61

enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

[Romualdez v. Sandiganbayan, 435 SCRA 371 (2004); People of the Philippines v. Nazario, 165 SCRA 186 (1988)] This was reiterated by the Honorable Court in People of the Philippines v. Siton, 600 SCRA 476 (2009): xxx in exercising its power to declare what acts constitute a crime, the legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. This requirement has come to be known as the void-forvagueness doctrine which states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law". [Emphasis and underscoring supplied] A perusal reading of Section 4(c)(4) of the Cybercrime Prevention Act clearly shows its vagueness and deficiencies in defining the crime of Cyber Libel. Worse, the law fails to mention how the person committing Cyber Libel can be identified. Article 360 of the Revised Penal Code provides who are the persons responsible for libel: Art. 360. Persons responsible. Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. xxx

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Nevertheless, the same definition cannot be simply adopted and applied to the cyber world for the obvious reason that people can simply use fake names or access computers in common libraries or computer shops. Simply tracing the IP address and imputing the crime to the owner of the computer system used will not suffice. It is elementary that criminal statutes are to be strictly construed. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so. [U.S. v. Abad Santos, 36 Phil. 243 (1917).] Moreover, with respect to Section 7 of the Cybercrime Prevention Act, the rule against double jeopardy is provided in Article III, Section 21 of the 1987 Constitution, thus: Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. For double jeopardy to exist, the following elements must concur: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have terminated; and (3) the second jeopardy must be for the same offense as the first. Parenthetically, legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. [Cuison v. Court of Appeals, 289 SCRA 159 (1998); Guerrero v. Court of Appeals, 257 SCRA 703 (1996); People of the Philippines v. Ylagan, 58 Phil. 851 (1933)]
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In this light, Sections 6 and 7 of the Cybercrime Prevention Act provides: Section. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. [Emphasis and underscoring supplied] Section 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or other special laws. Under this regime, a crime as defined by the Revised Penal Code can be prosecuted separately under Section 6 of the Cybercrime Prevention Act. Moreover, a prosecution under the Cybercrime Prevention Act is without prejudice to any liability for violation of any provision of the Revised Penal Code. Thus, what is being punished under Section 7, in relation to Section 6, of the Cybercrime Prevention Act is the exact act punishable under the Revised Penal Code. In fact, the Cybercrime Prevention Act merely adopts and incorporates all elements of the felonies under the Revised Penal Code and other special laws and sanctions, encourages even, a separate and distinct prosecution under the Cybercrime Prevention Act for the same offense. This is most certainly violative of the Constitution and should be struck down without hesitation.

64

Lastly, it should be pointed out that deficiencies in the Cybercrime Prevention Act cannot be cured in its Implementing Rules and Regulations. As early as 1970, in Teoxon v. Members of the Board of Administrators, 33 SCRA 585 (1970), the Honorable Court held that the power to promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. Its terms must be followed for an administrative agency cannot amend an Act of Congress. [United BF Homeowners v. BF Homes, 310 SCRA 304 (1999)] Clearly, the vagueness of the abovementioned provisions cannot be cured by its implementing rules and regulations without duly expanding the law. Thus, the Assailed Provisions are fatal beyond resuscitation. The other provisions of the Cybercrime Prevention Act that flow from the Assailed Provisions likewise suffer the same fatal flaw, including the provisions that authorize the disbursement of public funds for the implementation of the law. V. 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 1, Article III Of The Constitution. Section 6 of the Cybercrime Prevention Act provides: Section. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
65

The import of the foregoing provision is that all the crimes punishable under provisions of the Revised Penal Code, such as libel, if committed through the use of a computer system or other similar means, the penalty to be imposed shall be one (1) degree higher. Otherwise stated, by committing the same crime, but using a different means specifically, computer systems, the penalty is harsher. At the onset, the foregoing provision is again susceptible to various interpretations. For instance, if information and

communications technology (ICT) is used in committing only one element of the crime, will the foregoing provision find application? Does the mere use of ICT automatically increase the penalty regardless of intent or reasonable connection to the consummation of the alleged crime? Further, the provision pertains to the use of information and communications technologies. However,

nowhere in the Cybercrime Prevention Act is ICT specifically defined. The vagueness of the provision clearly violates the substantive due process of the person to be charged. It should be emphasized in this regard that Section 1, Article III of the Constitution guarantees the equal protection of the laws: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

66

In Philippine Amusements and Gaming Corporation v. Bureau of Internal Revenue, 645 SCRA 338 (2011), the Honorable Court explained: Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. The "equal protection of the laws is a pledge of the protection of equal laws." It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned. Nevertheless, the foregoing is without exception. In City of Manila v. Laguio, supra, the Honorable Court held: Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: 1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class. Clearly, there can be a valid classification provided that the following requisites are present: (1) It must be based on substantial distinctions; (2) It must be germane to the purposes of the law; (3) It must not be limited to existing conditions only; and (4) It must apply equally to all members of the class.

67

However, the case at bar could not even pass the first requisite of having a substantial distinction. The standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. [Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 446 SCRA 299 (2004)] Crimes committed by the use of ICT cannot be reasonably treated as more grave or heinous as to sweepingly increase the penalty by one degree higher than if committed without it. Indeed, the provision arbitrarily discriminates between two crimes that have exactly the same elements. At any rate, substantive due process requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just. [Associated Communications and Wireless Services, Ltd. v. Dumlao, 392 SCRA 269 (2002)] Thus, unreasonableness of the provision violates substantive due process and should be rendered void. Truly, this oppressive law will take us backwards as far as free online discourse is concerned. Expressing thoughts and ideas through social media is an advancement made possible by modern technology. Verily, information shared on cyberspace must not be censored, suppressed or taken down based on the foregoing vague provisions of the Cybercrime Preventive Act. ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND/OR WRIT OF PRELIMINARY INJUNCTION 1. Petitioners replead the foregoing allegations in the

instant Petition by reference.

68

2.

The enactment of the Assailed Provisions of the

Cybercrime Prevention Act by the Legislative and Executive Branches of the of Government the explicit was clearly of made the in direct

contravention

provisions

Constitution.

Respondents, therefore, and/or anybody acting in their behalf and/or under their direction, should not be permitted to implement and/or enforce such void and unconstitutional provisions to the grave and irreparable damage and prejudice not just of petitioners but the Filipino people, more importantly, as well. 3. The constitutional issues raised in the instant Petition are

of transcendental significance and importance. 4. Thus, there is an urgent necessity for the Honorable Court

to restrain and/or enjoin respondents, and/or anybody acting in their behalf and/or under their direction, from implementing and/or enforcing the Assailed Provisions of the Cybercrime Prevention Act i.e., Sections 4(c)(4), 5, 6, 7, 12 and 19, as well as all other provisions that flow therefrom, including the provisions that authorize the disbursement of public funds for the implementation of the law including any and all actions undertaken under authority of or pursuant thereto. 5. Petitioners are, therefore, entitled to an immediate relief

and the whole or part of said relief consists of restraining and/or enjoining the respondents, and/or anybody acting in their behalf and/or under their direction, from implementing and/or enforcing the Assailed Provisions, including any and all actions undertaken

69

under authority of or pursuant thereto, for being made in violation of the Philippine Constitution. 6. The commission and/or continuance of the acts sought

to be restrained and/or enjoined during the pendency of the instant Petition would work injustice and cause grave and irreparable injury not only to petitioners but also, and more importantly, to the Filipino people, which ultimately leads to the unprecedented curtailment of their most cherished and jealously guarded civil rights contrary to the express mandate of the Constitution. 7. In view thereof, there is an extremely urgent necessity for

the Honorable Court to restrain and/or enjoin respondents, and/or anybody acting in their behalf and/or under their direction, from causing grave and irreparable injury to petitioners and the Filipino people through the implementation and/or enforcement of the Assailed Provisions. PRAYER WHEREFORE, it is most respectfully prayed that: 1. 2. The instant Petition be GIVEN DUE COURSE. Upon the filing of the instant Petition, a temporary

restraining order and/or writ of preliminary injunction be ISSUED restraining/enjoining respondents, and/or anybody acting in their behalf and/or under their direction, from implementing and/or enforcing the Assailed Provisions of Cybercrime Prevention Act i.e., Sections 4(c)(4), 5, 6, 7, 12 and 19, as well as all other provisions that

70

flow

therefrom,

including

the

provisions

that

authorize

the

disbursement of public funds for the implementation of the law including any and all actions undertaken under authority of or pursuant thereto. 3. The instant Petition be SET FOR ORAL ARGUMENTS as the

Honorable Court may deem proper. 4. Upon due consideration on the merits, that: (a) The Assailed Provisions of the Cybercrime

Prevention Act be DECLARED NULL AND VOID for being unconstitutional; and (b) their The respondents, and/or anybody acting in and/or under their direction, be

behalf

PERMANENTLY ENJOINED from implementing the Assailed Provisions of the Cybercrime Prevention Act, including any and all actions undertaken under authority of or pursuant thereto. Petitioners likewise pray for other reliefs just and equitable under the premises.

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Makati City for the City of Manila, Metro Manila, 03 October 2012.

KRISTOFFER JAMES E. PURISIMA PTR No. 1404674 01/02/12 Taguig City IBP No. 869904 01/02/12 PPLM Roll of Attorneys No. 52576 MCLE Compliance No. III-0013982 05/04/10 Counsel for Petitioners ANTHONY IAN M. CRUZ, MARCELO R. LANDICHO, BENJAMIN NOEL A. ESPINA, MARCK RONALD C. RIMORIN, JULIUS D. ROCAS, OLIVER RICHARD V. ROBILLO, AARON ERICK A. LOZADA, GERARD ADRIAN P. MAGNAYE, JOSE REGINALD A. RAMOS, MA. ROSARIO T. JUAN, BRENDALYN P. RAMIREZ, MAUREEN A. HERMITANIO, KRISTINE JOY S. REMENTILLA, MARICEL O. GRAY, JULIUS IVAN F. CABIGON, BENRALPH S. YU, RUBEN B. LICERA JR., and PEDRO E. RAHON 6/F LTA Building, 118 Perea Street Legaspi Village, Makati City 1229 Metro Manila Telephone No.: (632)503.5272 Email: toby.purisima@gmail.com

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Copy Furnished (By Registered Mail) H.E. BENIGNO S. AQUINO III President Office of the President Malacaang Palace, City of Manila HON. JUAN PONCE ENRILE Senate President SENATE OF THE PHILIPPINES GSIS Building, Financial Center Roxas Boulevard, Pasay City HON. FELICIANO R. BELMONTE, JR. Speaker HOUSE OF REPRESENTATIVES Batasang Pambansa Complex Batasan Road, Quezon City HON. PAQUITO N. OCHOA, JR. Executive Secretary Office of the Executive Secretary Malacaang Palace, City of Manila HON. LEILA M. DE LIMA Secretary DEPARTMENT OF JUSTICE Padre Faura, City of Manila HON. LOUIS NAPOLEON C. CASAMBRE Executive Director INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE NCC Building, C.P. Garcia Avenue, Diliman, Quezon City HON. NONNATUS CAESAR R. ROJAS Director NATIONAL BUREAU OF INVESTIGATION Taft Avenue, City of Manila P/DGEN. NICANOR A. BARTOLOME Chief PHILIPPINE NATIONAL POLICE Camp Crame, Quezon City HON. FRANCIS H. JARDELEZA Solicitor General OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo Street, Legaspi Village, Makati City

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EXPLANATION FOR SERVICE BY REGISTERED MAIL Please be informed that the undersigned was unable to personally serve copies of the foregoing Petition and was constrained to serve the said Petition by registered mail to the above-named parties, as evidenced by the attached Affidavit of Service by Registered Mail, due to the urgency of filing the instant Petition, the lack of material time for personal service and the lack of available manpower to effect service by personal delivery. KRISTOFFER JAMES E. PURISIMA

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