Cybercrime Law Decision: Cop out #StopcybermartialLaw

by Cocoy Dayao, as originally posted at the Philippine Online Chronicles

“It is doubtful,” Justice Carpio wrote in his concurring and dissenting opinion to the Supreme Court’s Cybercrime Law decision, “Whether Congress, in failing to tailor Section 4(c)(1) to narrowly advance state interests, foresaw this worrisome and absurd effect. It is, unfortunately, an altogether common by-product of loosely crafted legislations.”

Justice Carpio was talking about the cybersex provision in the Cybercrime Law. The provision of course survived. In the Supreme Court’s decision it survived because according to Justice Abad, “The understanding of those who drew up the cybercrime law is that the element of “engaging in a business” is necessary to constitute the illegal cybersex.”

The absurdity of the justification still makes my head spin.

In Chief Justice Sereno’s concurring and dissenting opinion, she quoted the transcript of the bicameral conference committee. In particular she quoted the discussion between Senator Ed Angara and Representative Tinga.

“With regard to some of these offenses,” Representative Tinga said,  “The reason why they were not included in the House version initially is that, the assumption that the acts committed that would make it illegal in the real world would also be illegal in the cyberworld”.

This unjustly penalizes anyone committing a crime that uses Information and Communications Technology. The Supreme Court says this is perfectly constitutional.

It is interesting to note that the Justices seem to be familiar with the ways of the Internet. I am at least appreciative that their people worked and researched hard for this decision and the various opinions. I am impressed with the Supreme Court’s grasp of what the online world really is. In its decision to make exceptions to libel the Supreme Court said: “Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting.”

Really LOL’d when I read that.

In a nutshell, trolls saved us all. Sort of.

I never thought to YAY at something so condescending. I honestly don’t know whether to be annoyed or thrilled. But there is truth and logic in those words. How can such words capture the milieu so perfectly and so wrongly?

With so much of the law surviving, it is easier of course to talk of the Supreme Court decision on cybercrime law by what it found to be unconstitutional.

There were only three things that the Supreme Court found unconstitutional. First: SPAM is constitutional. Second: the collection of real-time traffic data. And third: the authorization that gives the Department of Justice the ability to restrict or block access to suspected Computer Data. And oh, libel is constitutional, but restricted only the original source.

It would seem to me that fighting spam is less about a legal battle ground than a technological one. That we would have to use technology to protect ourselves from being victims of it.

It is interesting to note what the Chief Justice says about real-time data capture. What’s interesting in the Sereno opinion is how she seems to favor the legality of such activity. The Chief Justice ultimately agreed with the majority that it is illegal.

This NSA-style capturing of data was made unconstitutional by the Supreme Court. Also unconstitutional is the ability of the DOJ to shut down any site. Also SPAM, while we all hate it, is also protected.

What’s chilling of course there is now a cyber equivalent to everything in the Revised Penal Code. You can also now sue someone for libel from say from Australia.

It is interesting to observe of course how Internet libel has impacted much of the voice against the cybercrime law. And how it is politically apt for Congress to seek to decriminalize it. It is also interesting to ask why Congress seemed to be increasingly in favor of increasing the penalties for libel online, particularly in email as mentioned in the transcript of the bicameral committee.

What can you do with garbage in, except to have garbage out? And that’s the case that we have here. Justice Carpio’s words pertaining to cybersex provision sums up my own thoughts on the entirety of the cybercrime law that the Supreme Court has found to be mostly, Constitutional. The law to me, can charitably be described as “narrowly advancing state interests”. To me Congress failed to foresee the worrisome, and absurd effect of a law. Congress’ laziness or inability to comprehend can best be seen in the transcript that they wanted an all encompassing provision. They assume that the real world has a direct translation to cyberspace. It rarely does. This is a false assumption.

After reading the decision, the various concurring and dissenting opinions, I grudgingly accept the Supreme Court’s logic, and why they ruled the way they did. In his concurring and dissenting opinion, Justice Leonen wrote, “We cannot be asked to doubt the application of provisions of law with most of the facts in the cloud”. It is probably better this way even though the words “cop out”, keep screaming in my head.

The ball is now back where this mess all began: in Congress. Congress now has the opportunity to fix the mess that they made and make a law that advances not just the State’s interest, but all our interest in a fair and equal manner. It is now time for Congress to be less lazy, and work harder to comprehend the complex dynamics of the 21st Century and beyond. You know, to actually earn those pay checks! Hard as it may be, this probably is the most democratic thing that has happened.

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