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Issues on the IRR of RA 10175, Cybercrime Prevention Act

Many issues revolve around Section 13 of the IRR which states that,
Section 13. Collection of Computer Data. Law enforcement
authorities, upon the issuance of a court warrant, shall be authorized to
collect or record by technical or electronic means, and the service
providers are required to collect or record by technical or electronic means
and/or to cooperate and assist in the collection or recording of computer
data that are associated with specified communications transmitted by
means of a computer system.
The court warrant required under this section shall be issued or granted
upon written application, after the examination under oath or affirmation
of the applicant and the witnesses he may produce, and the showing that:
(1) there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed, is being committed or is
about to be committed; (2) there are reasonable grounds to believe that
the 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) there are no other means readily available for obtaining such
evidence.

1. Section 13 of the IRR on Collection of Computer Data


It looks eerily the same as Section 12 of the Statute it purports
to implement. The very same provision the Supreme Court
struck down in its entirety, noting it to be void for being
unconstitutional.
A closer examination of the Rules, however, reveals that Section
13 quite in fact represents an entirely new provision. One that
critics of the law could not have challenged back in 2012, and
the Supreme Court could not have later passed upon, because it
was never there to begin with.
- The late Section 12 of RA 10175 referred to traffic data.
- Section 13 of the IRR pertains to computer data
- BUT, The very definition of computer datathe subject
of the IRR provisionis broad enough to include both
traffic data and content data.
In other words, Section 13 of the IRR actually provides a legal
basis for the government to conduct real-time electronic
surveillance or the collection of computer data that relate to the
communications of private individuals.
2. Unlawfully expanded the Anti-Wiretapping Law

According to RA 4200, even with a court-issued warrant,


communications surveillance is only permitted for very specific
crimes expressly identified in the law
With Section 13 of the IRR, the exceptions to RA 4200 have
multiplied exponentially by sanctioning communications
surveillance in all cases where some form of cybercrime (i.e.,
those enumerated in RA 10175, and all crimes in the Revised
Penal Code and other penal laws committed using a computer
system) is involved.
In inserting Section 13, the drafters of the IRR essentially
usurped the power of Congress by putting back a provision
already deemed removed by the Supreme Court, curing it of
its initial defect by adding the court warrant as an element, and
thereafter proceeding to broaden its scope by now allowing the
collection of both traffic data and content data.

3. Private parties as active participants in surveillance activities


In keeping with the IRRs expansion theme, its authors now
demand that private persons like telecommunications
companies and Internet service providers not only cooperate
and assist law enforcement in their surveillance missions, but
also act as deputized law enforcement agents by carrying out
the collection and recording themselves.
Section 30 of the IRR affirms in no uncertain terms the
imposition of this new obligation:
Section 30. Duties of a Service Provider. The following are
the duties of a service provider:
xx 1. Collect or record by technical or electronic means,
and/or cooperate and assist law enforcement or competent
authorities in the collection or recording of computer data
that are associated with specified communications
transmitted by means of a computer system, in relation to
Section 13 hereof; xx
4. Self-imposed obligation to Foreign states
Philippine government seems to have burdened itself with by
way of Section 25 of the IRR, which reads:
Section 25. International Cooperation
The DOJ shall cooperate and render assistance to other contracting
parties, as well as request assistance from foreign states, for
purposes of detection, investigation and prosecution of offenses
referred to in the Act and in the collection of evidence in electronic
form in relation thereto. The principles contained in Presidential
Decree No. 1069 and other pertinent laws, as well as existing
extradition and mutual legal assistance treaties, shall apply. In this
regard, the central authority shall:

1. Provide assistance to a requesting State in the real-time


collection of traffic data associated with specified communications
in the country transmitted by means of a computer system, with
respect to criminal offenses defined in the Act for which real-time
collection of traffic data would be available, subject to the
provisions of Section 13 hereof;
2. Provide assistance to a requesting State in the real-time
collection, recording or interception of content data of specified
communications transmitted by means of a computer system,
subject to the provision of Section 13 hereof; xx
The foregoing text clearly establishes a duty on the part of the
Philippine government to act favorably on requests from foreign
states to conduct communications surveillance involving both traffic
and content data (read: compute data).

Given the palpable influence of the Budapest Convention on


Cybercrime on the language of the IRR and the latters explicit
reference to other contracting parties, one can only assume
that this duty proceeds from the language of this particular
treaty. The problem is: the Philippines is not a member-party to
the Convention. The country has neither signed nor ratified the
said treaty.

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