G.R. No. 203335, February 18, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL AND ERNESTO SONIDO, JR., Petitioners, v. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE AND THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
[G.R. No. 203299]
LOUIS “BAROK” C. BIRAOGO, Petitioner, v. NATIONAL BUREAU OF INVESTIGATION AND PHILIPPINE NATIONAL POLICE, Respondents.
[G.R. No. 203306]
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI “TOTO” CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, v. OFFICE OF THE PRESIDENT, REPRESENTED BY PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE PHILIPPINES, AND HOUSE OF REPRESENTATIVES, Respondents.
[G.R. No. 203359]
SENATOR TEOFISTO DL GUINGONA III, Petitioner, v. EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, AND DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
[G.R. No. 203378]
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, Petitioners, v. THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
[G.R. No. 203391]
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners, v. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY AND ALTER-EGO OF PRESIDENT BENIGNO SIMEON AQUINO III, LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF JUSTICE, Respondents.
[G.R. No. 203407]
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., NATIONAL ARTIST BIENVENIDO L. LUMBERA, CHAIRPERSON OF CONCERNED ARTISTS OF THE PHILIPPINES, ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO, CRISTINA E. PALABAY, SECRETARY GENERAL OF KARAPATAN, FERDINAND R. GAITE, CHAIRPERSON OF COURAGE, JOEL B. MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS PARTY-LIST, LANA R. LINABAN, SECRETARY GENERAL GABRIELA WOMEN’S PARTY, ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA MATIBAG, Petitioners, v. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, SECRETARY OF THE DEPARTMENT OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE, EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, NONNATUS CAESAR R. ROJAS, DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, D/GEN. NICANOR A. BARTOLOME, CHIEF OF THE PHILIPPINE NATIONAL POLICE, MANUEL A. ROXAS II, SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Respondents.
[G.R. No. 203440]
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, AND RYAN JEREMIAH D. QUAN (ALL OF THE ATENEO HUMAN RIGHTS CENTER), Petitioners, v. HONORABLE PAQUITO OCHOA IN HIS CAPACITY AS EXECUTIVE SECRETARY, HONORABLE LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF JUSTICE, HONORABLE MANUEL ROXAS IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION (ALL OF THE EXECUTIVE DEPARTMENT OF GOVERNMENT), Respondents.
[G.R. No. 203453]
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE E-PETITION HTTP://WWW.NUJP.ORG/NO-TO-RA10175/, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.
[G.R. No. 203454]
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners, v. THE HON. SECRETARY OF JUSTICE, THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, Respondents.
[G.R. No. 203469]
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, VS. 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.
[G.R. No. 203501]
PHILIPPINE BAR ASSOCIATION, INC., Petitioner, v. HIS EXCELLENCY BENIGNO S. AQUINO III, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; HON. PAQUITO N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE SECRETARY; HON. LEILA M. DE LIMA, IN HER OFFICIAL CAPACITY AS SECRETARY OF JUSTICE; LOUIS NAPOLEON C. CASAMBRE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; NONNATUS CAESAR R. ROJAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION; AND DIRECTOR GENERAL NICANOR A. BARTOLOME, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.
[G.R. No. 203509]
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, v. THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondents.
[G.R. No. 203515]
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY BENNY D. ANTIPORDA IN HIS CAPACITY AS PRESIDENT AND IN HIS PERSONAL CAPACITY, Petitioner, v. OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
[G.R. No. 203518]
PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM, REPRESENTED BY LENI VELASCO, PARTIDO LAKAS NG MASA, REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, AND THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents
Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:chanRoblesVirtualawlibraryWhile the text of Article 354 has remained intact since the Code’s enactment in 1930, constitutional rights have rapidly expanded since the latter half of the last century, owing to expansive judicial interpretations of broadly worded constitutional guarantees such as the Free Speech Clause. Inevitably, judicial doctrines crafted by the U.S. Supreme Court protective of the rights to free speech, free expression and free press found their way into local jurisprudence, adopted by this Court as authoritative interpretation of the Free Speech Clause in the Philippine Bill of Rights. One such doctrine is the New York Times actual malice rule, named after the 1964 case in which it was crafted, New York Times v. Sullivan.5crallawlibrary
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Italicization supplied)
The Court has long adopted the criterion set forth in the U.S. benchmark case of New York Times Co. vs. Sullivan that “libel can claim no talismanic immunity from constitutional limitations” that protect the preferred freedoms of speech and press. Sullivan laid down the test of actual malice, viz. “(T)he constitutional guaranty of freedom of speech and press prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” x x x.14crallawlibraryIndeed, just as the actual malice doctrine is enshrined in the U.S. First Amendment jurisprudence, it too has become interwoven into our own understanding of the Free Speech Clause of the Philippine Bill of Rights of the 1973 and 1987 Constitutions.15crallawlibrary
In contrast, Article 354, in relation to Article 361 and Article 362 of the Code, operates on the following principles:chanRoblesVirtualawlibrary
1) Malice is not presumed even in factually false and defamatory statements against public officers and public figures; it must be proven as a fact for civil and criminal liability to lie; 2) Report on official proceedings or conduct of an officer may contain fair comment, including factually erroneous and libelous criticism; and 3) Truth or lack of reckless disregard for the truth or falsity of a defamatory statement is an absolute defense against public officers and public figures.
The actual malice rule and Article 354 of the Code impose contradictory rules on (1) the necessity of proof of malice in defamatory imputations involving public proceedings or conduct of a public officer or public figure; and (2) the availability of truth as a defense in defamatory imputations against public officials or public figures. The former requires proof of malice and allows truth as a defense unqualifiedly, while the latter presumes malice and allows truth as a defense selectively. The repugnancy between the actual malice rule and Article 354 is clear, direct and absolute.
1) Malice is presumed in every defamatory imputation, even if true (unless good intention and justifiable motives are shown); 2) Report on official proceedings or conduct of an officer must be made without comment or remarks, or, alternatively, must be made without malice;16 and 3) In defamatory allegations made against a public official, truth is a defense only if the imputed act or omission constitutes a crime or if the imputed act or omission relates to official duties.17
Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibraryis attacked by petitioners as unconstitutionally overbroad. Petitioners in G.R. No. 203378 contend that Section 4(c)(1) sweeps in protected online speech such as “works of art that depict sexual activities” which museums make accessible to the public for a fee.23 Similarly, the petitioner in G.R. No. 203359, joining causes with the petitioner in G.R. No. 203518, adopts the latter’s argument that the crime penalized by Section 4(c)(1) “encompasses even commercially available cinematic films which feature adult subject matter and artistic, literary or scientific material and instructional material for married couples.”24crallawlibrary
x x x x
(c) Content-related Offenses:chanRoblesVirtualawlibrary
(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system x x x.Republic Act No. 9775 defines “Child pornography” as referring to -
any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities.30 (Emphasis supplied)Under Section 3 of that law, the term “explicit sexual activities” is defined as follows:chanRoblesVirtualawlibrary
Section 3. Definition of terms. -Clearly then, it is Section 4(c)(2), not Section 4(c)(1), that narrowly furthers the state interest of protecting minors by punishing the “representation x x x by electronic means” of sexually explicit conduct including the exhibition of sexual organs of, or sexual acts, involving minors. Section 4(c)(1) does not advance such state interest narrowly because it is broadly drawn to cover both minors and adults. Section 4(c)(2) is constitutional because it narrowly prohibits cybersex acts involving minors only, while Section 4(c)(1) is unconstitutional because it expands the prohibition to cybersex acts involving both minors and adults when the justification for the prohibition is to protect minors only.
x x x x
(c) “Explicit Sexual Activity” includes actual or simulated -
(1) As to form:chanRoblesVirtualawlibrary
(i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex;
x x x x
(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus[.] (Emphasis supplied)
The leading test for determining what material could be considered obscene was the famous Regina v. Hicklin case wherein Lord Cockburn enunciated thus:chanRoblesVirtualawlibraryMiller is the modern obscenity test most protective of speech uniformly followed in this jurisdiction for over two decades. The majority, in upholding Section 4(c)(1) and rejecting Miller, regresses to less protective frameworks of speech analysis. Because neither the ponencia nor the concurring opinions devote discussion on this doctrinal shift, one is left guessing whether the Philippine jurisdiction’s test on pornography has reverted only up to Roth or reaches as far back as the discredited Hicklin test. Either way, the lowered protection afforded to works claimed as obscene turns back the clock of free expression protection to the late 1960s and beyond when prevailing mores of morality are incongruous to 21st century realities.I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.Judge Learned Hand, in United States v. Kennerly, opposed the strictness of the Hicklin test even as he was obliged to follow the rule. He wrote:chanRoblesVirtualawlibraryI hope it is not improper for me to say that the rule as laid down, however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.Roth v. United States laid down the more reasonable and thus, more acceptable test for obscenity: ”whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Such material is defined as that which has ”a tendency to excite lustful thoughts,” and ”prurient interest” as ”a shameful or morbid interest in nudity, sex, or excretion.”
Miller v. California merely expanded the Roth test to include two additional criteria: ”the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and the work, taken as whole, lacks serious literary, artistic, political, or scientific value.” The basic test, as applied in our jurisprudence, extracts the essence of both Roth and Miller - that is, whether the material appeals to prurient interest.37 (Italicization supplied; internal citations omitted)
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.As defined, the medium through which libel is committed is not an element of such offense. What is required of the prosecution are proof of the (1) statement of a discreditable act or condition of another person; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice.41 The irrelevance of the medium of libel in the definition of the crime is evident in Article 355 of the Code which punishes libel with a uniform penalty42 whether it is committed “by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”
Online libel is not a new crime. Online libel is a crime punishable under x x x Article 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an avenue already covered by the term “similar means” under Article 355, to keep up with the times.43 (Emphasis supplied)For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and Article 353 in relation to Article 355 of the Code define and penalize the same offense of libel. Under the Double Jeopardy
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.Section 12 of RA 10175 is the statutory basis for intelligence agencies of the government to undertake warrantless electronic data surveillance and collection in bulk to investigate and prosecute violations of RA 10175.
Traffic data refer only to the communication’s 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.
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.
Mobile phone:chanRoblesVirtualawlibraryUnlike personal information which form part of the public domain (hence, readily accessible) because their owners have either disclosed them to the government as a result of employment in that sector or are part of transactions made with regulatory agencies (such as the land transportation, passport and taxing agencies), the information indicated above are personal and private. They reveal data on the social associations, personal activities and habits, political and religious interests, and lifestyle choices of individuals that are not freely accessible to the public. Because Section 12 contains no limitation on the quantity of traffic data the government can collect, state intelligence agencies are free to accumulate and analyze as much data as they want, anytime they want them.
telephone number of the caller
telephone number of the person called
location of the caller
location of the person called
the time, date, and duration of the call
(For messages sent via the Short Messaging System, the same information are available save for the duration of the communication.)
destination and size
country of sender and recipient
city of sender and recipient
public IP (Internet Protocol) of user
geolocation of user
client’s name (for smartphone, PC or desktop)
OS (Operating System)
URL (Universal Source Locator)
date and time of use
When [traffic] information x x x is combined, it can identify all of our surreptitious connections with the world, providing powerful evidence of our activities and beliefs. [L]aw enforcement can construct a “complete mosaic of a person’s characteristics” through this type of x x x surveillance. Under these circumstances, the information the government accumulates is more akin to content than mere cataloguing.52 (Emphasis supplied)The profiling of individuals is not hampered merely because the bulk data relate to telephone communication. As pointed out in a Report, dated 12 December 2013, by a government panel of experts53 which reviewed the U.S. government’s electronic surveillance policy (Panel’s Report) -
[t]he record of every telephone call an individual makes or receives over the course of several years can reveal an enormous amount about that individual’s private life. x x x. [T]elephone calling data can reveal x x x an individual’s “familial, political, professional, religious, and sexual associations.” It can reveal calls “to the psychiatrist, the plastic surgeon, x x x the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay bar, and on and on.”54crallawlibraryThis virtual profiling is possible not only because of software55 which sifts through telephone and Internet data to locate common patterns but also because, for Internet “Universal Resource Locators x x x, they are [both] addresses (e.g., www.amazon.com/kidneydisease) and [links] x x x allowing access to the website and thus permit government to ascertain what the user has viewed.”56 The identities of users of mobile phone numbers can easily be found through Internet search or in public and private mobile phone directories, calling cards, letterheads and similar documents.
[T]he relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. x x x x In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, x x x which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the (NSA) now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. x x x.64 (Emphasis supplied)Third, individuals using the telephone and Internet do not freely disclose private information to the service providers and the latter do not store such information in trust for the government. Telephone and Internet users divulge private information to service providers as a matter of necessity to access the telephone and Internet services, and the service providers store such information (within certain periods) also as a matter of necessity to enable them to operate their businesses. In what can only be described as an outright rejection of Smith’s analysis, the Panel’s Report, in arriving at a similar conclusion, states:65crallawlibrary
In modern society, individuals, for practical reasons, have to use banks, credit cards, e-mail, telephones, the Internet, medical services, and the like. Their decision to reveal otherwise private information to such third parties does not reflect a lack of concern for the privacy of the information, but a necessary accommodation to the realities of modern life. What they want — and reasonably expect — is both the ability to use such services and the right to maintain their privacy when they do so.66 (Emphasis supplied)Clearly then, bulk data surveillance and collection is a “search and seizure” within the meaning of the Search and Seizure Clause not only because it enables maximum intrusion into the private lives of the surveilled individuals but also because such individuals do not forfeit their privacy expectations over the traffic data they generate by transacting with service providers. Bulk data and content-based surveillance and collection are functionally identical in their access to personal and private information. It follows that the distinction Section 12 of RA 10175 draws between content-based and bulk traffic data surveillance and collection, requiring judicial warrant for the former and a mere administrative “due cause” for the latter, is unconstitutional. As “searches and seizures” within the contemplation of Search and Seizure Clause, bulk data and content-based surveillance and collection are uniformly subject to the constitutional requirement of a judicial warrant grounded on probable cause.
Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding Sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order 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 a 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: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained 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 supplied)Section 12 of RA 10175 More
I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgment of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.80crallawlibraryEqually important was that court’s finding on the efficacy of the bulk surveillance program of the U.S. government: “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”81crallawlibrary
Because international terrorists inevitably leave footprints when they recruit, train, finance, and plan their operations, government acquisition and analysis of such personal information might provide useful clues about their transactions, movements, behavior, identities and plans. It might, in other words, help the government find the proverbial needles in the haystack. But because such information overwhelmingly concerns the behavior of ordinary, law-abiding individuals, there is a substantial risk of serious invasions of privacy.In lieu of data collection in bulk and data mining, the Panel’s Report recommended that such data be held by “private providers or by a private third party,”86 accessible by American intelligence officials only by order of the FISC, upon showing that the requested information is “relevant to an authorized investigation intended to protect ‘against international terrorism or clandestine intelligence activities,’”87 a more stringent standard than what is required under current federal law.
As a report of the National Academy of Sciences (NAS) has observed, the mass collection of such personal information by the government would raise serious “concerns about the misuse and abuse of data, about the accuracy of the data and the manner in which the data are aggregated, and about the possibility that the government could, through its collection and analysis of data, inappropriately influence individuals’ conduct.”
According to the NAS report, “data and communication streams” are ubiquitous:chanRoblesVirtualawlibrary[They] concern financial transactions, medical records, travel, communications, legal proceedings, consumer preferences, Web searches, and, increasingly, behavior and biological information. This is the essence of the information age — x x x everyone leaves personal digital tracks in these systems whenever he or she makes a purchase, takes a trip, uses a bank account, makes a phone call, walks past a security camera, obtains a prescription, sends or receives a package, files income tax forms, applies for a loan, e-mails a friend, sends a fax, rents a video, or engages in just about any other activity x x x x Gathering and analyzing [such data] can play major roles in the prevention, detection, and mitigation of terrorist attacks x x x x [But even] under the pressures of threats as serious as terrorism, the privacy rights and civil liberties that are cherished core values of our nation must not be destroyed x x x x One x x x concern is that law-abiding citizens who come to believe that their behavior is watched too closely by government agencies x x x may be unduly inhibited from participating in the democratic process, may be inhibited from contributing fully to the social and cultural life of their communities, and may even alter their purely private and perfectly legal behavior for fear that discovery of intimate details of their lives will be revealed and used against them in some manner.85 (Emphasis supplied)redjgc
[I]’ve ordered that the transition away from the existing program will proceed in two steps.The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of communication caused by the grant of broad powers to the state to place anyone under electronic surveillance without or with minimal judicial oversight. If judicial intervention under U.S. law for real time surveillance of electronic communication did not rein in U.S. spies, the total absence of such intervention under Section 12 of RA 10175 is a blanket legislative authorization for data surveillance and collection in bulk to take place in this country.
Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization, instead of the current three, and I have directed the attorney general to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding or in the case of a true emergency.
Next, step two: I have instructed the intelligence community and the attorney general to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself. x x x.88 (Emphasis supplied)
With a few clicks of the mouse, the state can access your mobile device, your email, your social networking and Internet searches. It can follow your political leanings and activities and, in partnership with Internet corporations, it collects and stores your data.The Government must maintain fidelity to the 1987 Constitution’s guarantee against warrantless searches and seizures, as well as the guarantee of privacy of communication and correspondence. Thus, the Government, consistent with its national security needs, may enact legislation allowing surveillance and data collection in bulk only if based on individualized suspicion and subject to meaningful judicial oversight.
The basic pillar of democracy is the inviolable integrity of the individual. x x x [A]ll humans have a right to remain unobserved and unmolested. x x x.
A person under surveillance is no longer free; a society under surveillance is no longer a democracy. [O]ur democratic rights must apply in virtual as in real space.89crallawlibrary
1Transcript of President Obama’s Jan. 17 Speech on NSA Reforms, THE WASHINGTON POST, 17 January 2014, http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html.
2 On 1 January 1932.
3 Article III, Section 1(8) (“No law shall be passed abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and petition the Government for redress of grievances.”). This is substantially reiterated in Article III, Section 9 of the 1973 Constitution and Article III, Section 4 of the 1987 Constitution.
4 Act No. 277.
5 376 U.S. 254 (1964) (involving a libel complaint for damages filed by the Montgomery, Alabama police commissioner against the New York Times Company and other individuals for a paid political advertisement published in the New York Times, criticizing police conduct during a series of protests staged by civil rights activists at the height of the campaign for racial equality in the American South in the 1960s).
6 Also described as “an escalati[on] of the plaintiff’s burden of proof to an almost impossible level.” Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 771 (1985) (White, J., concurring).
7 Supra note 5 at 279-280.
8 Supra note 5 at 269 quoting Roth v. United States, 354 U.S. 476, 484 (1957).
9 Supra note 5 at 271-272 citing N. A. A. C. P. v. Button, 371 U.S. 415, 433 (1963).
10Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
11Lopez v. Court of Appeals, 145 Phil. 219 (1970).
12Borjal v. CA, 361 Phil. 1 (1999); Baguio Midland Courier v. CA, 486 Phil. 223 (2004); Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, 15 May 2009, 588 SCRA 1.
13Flor v. People, 494 Phil. 439 (2005); Guingguing v. CA, 508 Phil. 193 (2005); Vasquez v. CA, 373 Phil. 238 (1999).
14Babst v. National Intelligence Board, 217 Phil. 302, 331-332 (1984) (internal citations omitted).
15 Justice Enrique Fernando consistently espoused the theory that U.S. v. Bustos, 37 Phil. 731 (1918), preceded New York Times by over three decades (Mercado v. CFI of Rizal, 201 Phil. 565 1982; Philippine Commercial and Industrial Bank v. Philnabank Employees Association, 192 Phil. 581 1981). The OSG does one better than Justice Fernando by claiming that a much earlier case, U.S. v. Sedano, 14 Phil. 338 (1909), presaged New York Times (OSG Memorandum, pp. 62-63).
16 Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. (Emphasis supplied)
17 Art. 361. Proof of the truth. — x x x x
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. (Emphasis supplied)
18 OSG Memorandum, pp. 56-66, citing Snyder v. Ware, 397 U.S. 589 (1970).
19 Decision, p. 15.
20Marbury v. Madison, 5 U.S. 137, 180 (1803).
21 Id. at 177.
22 The obligatory nature of judicial power is textualized under the 1987 Constitution. Section 1, Article VIII provides: “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)
23 Memorandum (G.R. No. 203378), p. 19.
24 Memorandum (G.R. No. 203359), p. 58.
25 OSG Memorandum, p. 43.cralawred
26 Id. at 44-45.
27 Decision, p. 11.
28Osmeña v. COMELEC, 351 Phil. 692 (1998).
29 Id. at 44.
30 Section 3(c).
31 For the same reason, Section 4(c)(1) is unconstitutionally overbroad, sweeping in “too much speech” including the protected indecent but non-obscene type. G. GUNTHER AND K. SULLIVAN, CONSTITUTIONAL LAW 1287 (14th ed.).
32Miller v. California, 413 U.S. 15 (1973), cited with approval in Soriano v. Laguardia, G.R. No. 164785, 15 March 2010, 615 SCRA 254, (Carpio, J., dissenting); Fernando v. Court of Appeals, 539 Phil. 407 (2006).
33Fernando v. Court of Appeals, supra note 32.
34 G.R. No. 164785, 29 April 2009, 587 SCRA 79.
35 539 Phil. 407 (2006).
36 258-A Phil. 134 (1989).
37 G.R. No. 164785, 15 March 2010, 615 SCRA 254, 270-271 (Resolution).
38 Decision, p. 13.
39 The protected nature of truthful and non-misleading commercial speech was adverted to in Philippine jurisprudence in Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health Duque III, 562 Phil. 386, 448-451 (Puno, C.J., concurring).
40 OSG Consolidated Comment, pp. 109-110, citing People v. Sandoval, G.R. Nos. 95353-54, 7 March 1996, 254 SCRA 436.
41Vasquez v. Court of Appeals, 373 Phil. 238 (1999).
42Prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
43 OSG Consolidated Comment, p. 77.
44Malaya (http://www.malaya.com.ph/) and Abante (http://www.abante.com.ph); Manila Standard Today (manilastandardtoday.com); and The News Today (www.thenewstoday.info), respectively.
45 Petition (G.R. No. 203378), p. 37.
46 “Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person: (a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography[.]”
47Speiser v. Randall, 357 U.S. 513, 526 (1958).
48 Defined in the law (Section 3[g]) as “refer[ing] to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.”
49Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189.
50In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505 Phil. 298 (2005).
51People v. Canton, 442 Phil. 743 (2002); People v. Johnson, 401 Phil. 734 (2000). See also United States v. Arnold, 523 F.3d 941 (9th Cir. Cal., 2008), certiorari denied by the U.S. Supreme Court in Arnold v. United States, 129 S. Ct. 1312 (2009) (involving a warrantless search of a laptop of a passenger who had arrived from overseas travel).
52 Christopher Slobogin, The Search and Seizure of Computers and Electronic Evidence: Transaction Surveillance by the Government, 75 Miss. L.J. 139, 178. (Hereinafter Slobogin, Transaction Surveillance).
53 Composed of Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein, and Peter Swire.
54 Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies, 12 December 2013, pp. 116-117 (internal citations omitted), http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf (last visited on 29 December 2013).
55 Commercially available programs are collectively referred to as “snoopware” which “allows its buyer to track the target well beyond a single website; it accumulates the addresses of all the Internet locations the target visits, as well as the recipient of the target’s emails.” Slobogin, Transaction Surveillance at 146. The government surveillance agencies tend to develop their own version of such programs.
56 Id. at 153.
57 See, e.g., Florida v. Riley, 488 U.S. 445 (1989) and California v. Ciraolo, 476 U.S. 207 (1986) (uniformly holding that aerial surveillance of private homes and surrounding areas is not a “search” under the Fourth Amendment).
58 This standard, crafted by Mr. Justice Harlan in his separate opinion in Katz v. US, 389 U.S. 347 (1967), has been adopted by this Court to settle claims of unreasonable search (see, e.g., Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People v. Johnson, supra note 51).
59 442 U.S. 735 (1979). The earlier ruling in United States v. Miller, 425 U.S. 435 (1976), found no legitimate privacy expectation over the contents of checks and bank deposit slips. Unlike in the United States, however, Philippine law treats bank deposits “as of an absolutely confidential nature” (For deposits in local currency, see Section 2 of Republic Act No. 1405, as amended. For deposits in foreign currency, see Section 8 of Republic Act No. 6426, as amended).
60 Id. at 744.
61 Constitution (1935), Article III, Section 1(5) (“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order require otherwise.”); Constitution (1973), Article III, Section 4(1) (“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety and order require otherwise.”); Constitution (1987), Article III, 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.”). The inclusion of the phrase “as prescribed by law” in the 1987 Constitution indicates heightened protection to the right, removing the executive exemption to the guarantee (on the ground of public safety or order).
62 The protection afforded by Section 3(1), Article III of the Constitution to the privacy of communication and correspondence is supplemented by the Rule of the Writ of Habeas Data, effective 2 February 2008, giving judicial relief 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 x x x correspondence of the aggrieved party” (Section 1). If the writ lies, the court hearing the application for the writ “shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information x x x.” (Section 16).
63Klayman v. Obama, 2013 U.S. Dist. LEXIS 176928.
64 Id. at 84-85 (internal citations omitted).
65 Panel’s Report at 744.
66 Id. at 111-112.
67 I J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 135, citing 1971 Constitutional Convention, Session of 25 November 1972.
68 Republic Act No. 4200.
69 Under the Electronic Communications Privacy Act, codified in 18 USC § 3121(a) which provides: “In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).” (Emphasis supplied)
70 18 USC § 3121 (c) which provides: “Limitation.— A government agency authorized to install and use a pen register or trap and trace device under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications.” (Emphasis supplied)
71 18 USC § 3123(a) (2) which provides: “State investigative or law enforcement officer.— Upon an application made under section 3122 (a)(2), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” (Emphasis supplied)
72 Composed of eleven district court judges appointed by the Chief Justice of the U.S. Supreme Court.
73 Foreign Intelligence Surveillance Act, codified at 50 USC § 1804(a)(3), 1805(a)(2).
74 50 USC § 1861(b)(2)(A).
75 50 USC § 1861(a)(2)(A).
76 Under the first paragraph of Section 12 which provides: “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.” (Emphasis supplied)
77 Decision, p. 33.
78 While the U.S. law has been criticized as turning courts into “rubber stamps” which are obliged to issue the order for the installation of recording devices once the applicant law enforcement officer certifies that the information to be recorded is relevant to an ongoing criminal investigation (see Slobogin, Transaction Investigation at 154-155), the objection relates to the degree of judicial participation, not to the law’s structure.
79 Costas Pitas, Report: US Monitored the Phone Calls of 35 World Leaders, REUTERS http://worldnews.nbcnews.com/_news/2013/10/24/21124561-report-us-monitored-the-phone-calls-of-35-world-leaders (last visited on 16 December 2013).
80 Supra note 63 at 114-115 (internal citations omitted).
81 Supra note 63 at 109 (emphasis supplied).
82 Dan Roberts, Patriot Act Author Prepares Bill to Put NSA Bulk Collection ‘Out of Business,’ THE GUARDIAN, 10 October 2013 http://www.theguardian.com/world/2013/oct/10/nsa-surveillance-patriot-act-author-bill; Andrew Raferty, Obama: NSA Reforms Will Give Americans’More Confidence' in Surveillance Programs, NBC NEWS, http://nbcpolitics.nbcnews.com/_news/2013/12/05/21776882-obama-nsa-reforms-will-give-americans-more-confidence-in-surveillance-programs (last visited on 16 December 2013).
83 “Global Government Surveillance Reform,” http://reformgovernmentsurveillance.com/ (last visited on 16 December 2013).
84 Panel’s Report at 27.
85 Id. at 109-111 (internal citations omitted).
86 Id. at 25.
87 Id. at 26.
88 Supra note 1.
89World Writers Demand UN Charter to Curb State Surveillance, AGENCE FRANCE-PRESSE, 10 December 2013, http://www.globalpost.com/dispatch/news/afp/131210/world-writers-demand-un-charter-curb-state-surveillance.
90 Section 3(e), RA 10175.
91Chavez v. Gonzales, 569 Phil. 155, 237 (2008), Carpio, J, concurring.
92Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529, 575-578 (1996) (Mendoza, J., Separate Opinion)