Sunday, 4 May 2014

Sextortion and Data Privacy Act of 2012

"The Messiah" Million Mask March. 
Image is not my property but of

The New Millennium drives modernization into a 360 degree change of lifestyle. Remember last year when Webster and Merriam add “Selfie” into their family; social media is the newest and purest description of the new community’s norm. Philippine social network providers were actively promoting and marketing from a downscale network connection through router applicable for machines; for example, computers and laptops. While now, an upscale data connection through “mobile data connection”, so long that the handset to be used is supported by 3G, Android, Blackberry, or some other various IOS, not to mention some infrastructure offers free WIFI connections. Therefore a hindrance no more to access internet, as Globe put it into words, “Anytime, Anywhere.” Easy access to internet means a 24/7 live personal updates through Instagram, Facebook, and Twitter where account users freely post their utmost recent location and activity at which is tantamount to an absolute relinquishment of personal right to privacy. Posting private phrases and images is synonymous to the legal word, “consent.”  

            There are two (2) questions left to be answered: 1. Is there a problem with the status quo, easy access to Facebook, Twitter, and Instragram. 2. How will the legislative body protects the citizen, is there a law that punished cybercriminal acts?

            Answer to point No. 1: A Seventeen (17) year old mechanic in the name of Daniel Perry took his own life by jumping off the bridge in Scotland, July last year, for he was one of the victim of “sextortion.” Statutory construction provides a literal meaning, Sextortion, a combination of words pertaining to sex and extortion. How does this works: “The sextortionists’ basic ploy is to use an attractive female image that is to send a “friend request” to be added on Facebook (or some other form of social media, but Facebook is popular). The two will start talking and she becomes “very interested” in the male. Once they seem to be getting along, the female will ask the male to use some form of video chat program (Skype is very common) and then they will continue talking. Afterwards, the female will ask the male to do “illicit” acts in front of the camera which will be recorded and used as a blackmail to transfer several amount of money to a particular Bank Account.”1 The suspects will not only demand money transfer once, it may be as frequent as three (3) times. By the statistics provided, these males were only triggered to report the crime of extortion during the 5th demand despite threat to life.

            Sextortion has becoming a “borderless” crime; for example, in the case of Daniel Perry, the sextortionist were captured in Manila, Philippine jurisdiction, while he took his life in Scotland. The parents of Perry will file a case for the three (3) Filipino sextortionist whom were capsized in the Philippines. Due to the rampant existence of the crime, May 03, 2014, was when several hoax established were raided by Philippine local police district in Naga City. One of these establishments is in the name of “Digital Mind”, they were claiming that they do only sell books and perfumes through online, thus, they are innocent of the crime and shouldn’t be punished. Even the International Police (Interpol) has been alarmed for an increasing number of victims in worldwide, Australia, Japan, New Zealand, United States and etc. Philippines is vulnerable to this kind of crime as to quote the words used by Interpol: “Easy access to the Internet, a relatively lower risk of arrest and big financial gains have caused such crimes to flourish in recent years in countries such as the Philippines.”2 A comparative analysis of the type of government: democratic versus socialist country. China was yet mentioned to be one of the sextortion victims for their government restricts or prohibits access to social media like Youtube and Facebook, instead they create their own local Network Social Provider, is relatively well track by the Chinese government to ensure the Country is not well influenced by the West. While, Philippines as a democratic country do exercise Freedom of Expression by actively posting their thoughts may it be blatant or may cause threat to national security and the government does not have enough technical means not to police but regulate network social provider.    

            What is a right of privacy? Gamboa vs Chan, GR No. 193636 cited the case of Morfe vs Mutuc which provides: “Liberty is the constitutional sense must mean more than a freedom from unlawful government restraint; it much includes privacy as well, if it is a repository of freedom. The right to let alone is the beginning of all freedom.”3 In the same case, a Language of Professor Emerson was cited as well: “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 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.”4

            Answer to point no. 2: Year 2012 was when allegedly a sexual videos of Hayden Kho and Katrina Halili was uploaded to the so-called, Youtube. Year 2013, two (2) videos – one of which was allegedly Chito Miranda of Parokya Ni Edgar, and Wally Bayola were separately uploaded on the same medium. Publicity and media provides that “someone” have accessed to their personal files and have them uploaded. If someone have uploaded their personal illicit video or picture into their Facebook account and had them secured through a “private” setttings, what if by any means, someone crack and hack their accounts and those private photos had been uploaded. Does his “private settings in Facebook” tantamount to waiver of rights of privacy? Should the Data Privacy Act be limited to personal information recorded in various government agencies such as but not limited to Bureau of Internal Revenue (BIR), Social Security System (SSS) and among others.

            Congress enacted a statute, Republic Act No. 10173, An Act Protecting Individual Personal Information in Information and Communications Systems in the Government and the Private Sector, Creating for this Purpose a National Privacy Commission, and for other purposes. The intent of the law is Nobel as the Declaration of the Policy states:

SEC. 2. Declaration of Policy – It is the policy of the State to protect the fundamental human rights of privacy of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in national building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.

While, letter (g) of Section 3 of the same provision states:

(G) Personal Information – refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.

            Aforementioned awhile back, the intent of the law is highly commendable, yet do we have the right and appropriate means to technically achieve the protection required by the citizens. President Noynoy Aquino signed an approximately P2 Trillion amount of governmental budget. If the budget for system improvements will be under Department of Social Welfare and Development, the allocated portion is about “P56.2 Billion.”5 How much will be allocated for the improvement projects of the infrastructures when Ninoy Aquino International Airport (NAIA) is the top priority before system enhancements.

Secondly, the public issue on Malampaya Fund and Philippine Development Assistance Fund (PDAF) is strong message of Bureaucracy and Red Tape in the government processing of documents. In the case of businessmen and taxpayers these private and or personal information are critically detailed from place of business, if none then habitual place of residence to acquire jurisdiction in case to commit a crim for subpoenas. These informations can be easily sold by a government employee in exchange of money.

Despite the fact a government employee may be terminated from work through administrative, civil, and criminal charges, yet many are still succumb to the Red Tape scheme. As one article simply put how simple transaction works: “All applications and/or requests submitted shall be acted upon by the assigned officer or employee during the period stated in the Citizen’s Charter which shall not be longer than five (5) working days in the case of simple transactions and ten (10) working days in the case of complex transactions from the date the request or application was received. “Simple Transactions” refer to requests or applications which only require ministerial actions on the part of the public officer or employee, or that which present only inconsequential issues for resolution by an officer or employee of said government office. On the other hand, “Complex Transactions” refer to requests or applications submitted by clients of a government office which necessitate the use of discretion in the resolution of complicated issues by an officer or employee of said government office, such transaction to be determined by the office concerned.6
            Provided, further, which social network provider shall be maintaining these private or personal information. Republic Act No. 8792, Electronic Commerce Act of 2000 defines Service Provider as:

1.      “On-line services or network access, or the operator of facilities therefore, including entities offereing the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user’s choosing; or

2.      The necessary technical means by which electronic documents of an original may be stored and made accessible to a designated or undesignated third party. Such service providers shall have no authority to modify or alter the content of the electronic data message or electronic document received or to make any entry therein on behalf of the originator, addressee or any third party unless specifically authorized to do so, and who shall retain the electronic document in accordance with the specific request or as necessary for the purpose of performing the services it was engaged to perform.”

As stated by the definition above Philippines has two (2) major contenders for bidding: PLDT (including Smart and Sun) and Globe. If either of these private sectors will be chosen as government service providers, can they access the private files too?

Philippines, among others of the Asian governments like Singapore where the government’s site was once vulnerable to cracking and hacking by the so-called “The Messiah.” The Messiah is a group of anonymous men who wore a mask to incite to stage various picketing and rallies in Manila (Million Mask March) and in Singapore. Facebook and Twitter were the means that was used to incite rally in places within Metro Manila.

The message that was generating on the screen was: “The government, in many ways, has failed its Filipino citizens. We have been deprived of things which they have promised to give; what our late heroes have promised us to give. Let us remind the government that fairness, justice and freedom are more than words. They are perspectives.”7

Aforementioned hacking of government website is not foreign either to First World country in the likes of United States when “Anonymous” tried to corrupt the government data. This scenario is not only to theft Diplomatic Top Secret, it includes illicit recording and copying of personal data which suspects may use for illegal identity theft. If government site hacking is present in a protected First World data system then how would our government halt and protect such private data.

Moreover; Civil Code provides that “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbours and other persons.” “Declared that the right of privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe vs Mutuc, there is no infringement of the individual’s right to privacy as the requirement to disclose information is for a valid purpose.”8 While, 1987 Philippine Constitution provides for the following Bill of Rights:
“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.
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.”
Available legal remedy against violation of Right of Privacy:

1.      Administrative – People vs Raquero, GR No. 186529, August 3, 2010

“It is a well settled rule that the findings of fact of quasi-judicial agencies like CSC are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine themselves.

To establish a violation of his right under the 4th Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable.”

On the other hand:

Alejano vs Cabuay, GR No. 160792, August 25, 2005 distinguished the privacy rights enjoyed by the convicted inmates and pre-trial detainees: “American jurisprudence initially make a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The case of Palmigiano vs Travisono recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy of communication. Censorship of pre-trial detainees’ mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all.”

2.      Writ of Habeas Data

Gamboa vs Chan, GR No. 193636, July 24, 2012 provides that:

“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 in the gathering, collecting or storing of data information regarding the person, family, home and correspondence of the aggrieved party.

It must be emphasized that in order for the privilege of the writ be granted, there must exist a nexus between the right of privacy on the one hand, and the right to life, liberty or security on the other.”  

3          GR No. 193636
4          Ibid.
8          Gamboa vs Chan, GR No. 193636, 2012

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