Laws Treating ICT-Related Crimes (RA 10175) Presentation PDF

LAWS TREATING ICT-RELATED CRIMES 1. RA 10175 – Cybercrime Prevention Act 2. RA 9995 – Anti-Photo and Video Voyeurism Act 3. RA 9775 – Anti-Child Pornography Act 4. RA 8484 – Access Device and Regulation Act 5. REPUBLIC ACT NO. 10175 “CYBERCRIME PREVENTION ACT OF 2012″ ORDER OF PRES...

LAWS TREATING ICT-RELATED CRIMES 1. RA 10175 – Cybercrime Prevention Act 2. RA 9995 – Anti-Photo and Video Voyeurism Act 3. RA 9775 – Anti-Child Pornography Act 4. RA 8484 – Access Device and Regulation Act 5. REPUBLIC ACT NO. 10175 “CYBERCRIME PREVENTION ACT OF 2012″ ORDER OF PRESENTATION 1. Effectivity of RA 10175 2. Categories of Cybercrimes 3. Salient Features: a. Definition of Terms b. Punishable Acts c. Sections Declared Unconstitutional d. Enforcement and Implementation 1. Effectivity of RA 10175 Approved – September 12, 2012 TRO issued – October 9, 2012 Disini Decision – February 18, 2014 2. Categories of Cybercrimes: 3. SALIENT FEATURES a. Definition of Terms Access refers to: the instruction, communication with, storing data in, retrieving data from, or making use of any resources of a computer system or communication network. Definition of Terms Alteration: the modification or change, in form or substance, of an existing computer data or program. Communication: the transmission of information through ICT media, including voice, video, and other forms of data.  Definition of Terms Computer: 1)An electronic, magnetic, optical, electromechanical, or other data processing or communications device, or grouping of such device, capable of performing logical, arithmetic, routing, or storage functions; 2) Any storage facility, or equipment or communications facility or equipment directly related to or operating in conjunction with such device. 3) Devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the Internet. Definition of Terms Definition of Terms Without right: (i)conduct undertake without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law. Definition of Terms Interception: listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.  Definition of Terms Service provider: (1) Any public or private entity that provides to users of its service the ability to communication by means of a computer system, and (2) Any other entity that processes or stores computer data on behalf of such communication service or users of such service.  Definition of Terms Subscriber’s information: any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established.  Definition of Terms Traffic data or non-content data: any computer data other than the content of the communication including, but not limited to: 1.the communication’s origin, 2.destination, 3.route, 4.time, 5.data, 6.size, 7.duration, or 8.type of underlying service.  Definition of Terms Content Data – data which are not traffic data.  b. Punishable Acts Illegal access – The access to the whole or any part of a computer system without right. Simply, it implies an unauthorized interaction between the culprit and the targeted devices or computer components, usually by accessing the computer, using its keyboard or mouse, printing a document, browsing folders, opening files, running software, and processing data, stored within, with the purpose of acquiring information.  Punishable Acts Illegal interception – Elements: a) A person (natural or juridical), b) intercepts non-public transmission of computer data to, from, or within a computer system, and c) the interception was done by technical means.  Punishable Acts Data Interference – Elements: 1)There is an alteration, damage, deletion or deterioration of computer data, electronic document or electronic data messages, 2) without right, 3) by reckless or intentional conduct or by introducing or transmitting viruses.  Punishable Acts System Interference – Elements: 1.A person, without right or authority, 2.Intentionally alters or recklessly hinders or interferes with the functioning of a computer or computer network, 3.By inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or data message; or b. Introducing or transmitting viruses.  Punishable Acts Misuse of devices - Elements: 1. A person, whether natural or juridical, 2. Uses, produces, sells, procures, imports, distributes or otherwise makes available, without right, of: (a) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under the Act, or (b) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it can be used for the purpose of committing any offenses under the Act. 2. The possession of (a) and (b) with intent to use for the purpose of committing any of the offenses under Section 4, RA 10175.  Punishable Acts Cyber-squatting – Elements: 1. A person (natural or juridical); 2. Acquires a domain name in the internet; 3. Domain name is similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration, or, in case of a personal name, identical or in any way similar with the name of a person other than the registrant; 4. Purpose is to profit, misled, destroy reputation, and deprive others from registering the same; 3. The acquisition is in bad faith; and 4. The acquisition is without right or with intellectual property interests in it.  Punishable Acts Computer-related Forgery - Elements: 1. A person (natural or juridical), 2. Inputs, alters, or deletes any existing computer data without right, and 3. Said act results in inauthentic data with the intent that it can be considered or acted upon for legal purposes as if it were authentic.  Punishable Acts Computer-related Fraud. Elements: 1.There is an input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, 2. The act is unauthorized, 3. The act is with fraudulent intent, 4. The act caused damage to another. Note: If no damage has yet been caused, the penalty imposed shall be one (1) degree lower.  Punishable Acts Computer-related Identity Theft - Requisites: 1. There is an identifying information belonging to another, whether natural or juridical, 2. Another person acquires, uses, misuses, transfers, possesses, alters or deletes such identifying information, 3. The act is committed intentionally; and 4. The act is committed without right.  Punishable Acts Cybersex – Elements: 1.A person willfully engages, maintains, controls or operates any lascivious exhibition of sexual organs or sexual activity. 2. He does it with the aid of a computer system. 3. His participation may be direct or indirect. 4. He does it for favor or consideration. Jesus Disini, et. Al. vs. Secretary of Justice, et. al. GR No. 203335 dated February 11, 2014: Cybersex is explained as: 1. lack of intent to penalize a “private showing xxx between and among two private persons xxx.” 2. the element of “engaging in a business” is necessary to constitute the illegal cybersex. 3. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. 4.This includes interactive prostitution and pornography, i.e.,by webcam.  Punishable Acts Child Pornography –punishable acts same in Republic Act No. 9775 or the Anti-Child Pornography Act of 2009. Penalty is one degree higher.  Punishable Acts Libel – Elements are same in Article 355 of RPC committed through a computer system or any other similar means which may be devised in the future. (Applicable only to Author – Supreme Court in Disini decision)  Punishable Acts Other Offenses – (Not Applicable to Child Pornography, Unsolicited Commercial Communications and Online Libel – Supreme Court) (a) Aiding or Abetting in the Commission of Cybercrime. (b) Attempt in the Commission of Cybercrime.  Punishable Acts 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. Penalty: One degree higher. c. Provisions Declared Unconstitutional SECTION 12. Real-Time Collection of Traffic Data. SECTION 19. Unsolicited Commercial Communications.  d. Enforcement and Implementation SEC. 10. Law Enforcement Authorities. — The cybercrime unit of the NBI and the PNP shall exclusively handle violation of punishable acts defined and penalized by the Act.  Enforcement and Implementation Preservation of Computer Data – Duty to preserve of Internet Service Providers: 1.Traffic data and subscriber information - six (6) months from the date of the transaction. 2. Content data - six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation. Enforcement and Implementation LEAs may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. Enforcement and Implementation Section 14. Disclosure of Computer Data. — LEAs, upon securing a court warrant, shall issue an order requiring any person or SP to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order. Enforcement and Implementation Section 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties: Enforcement and Implementation Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: (a) To secure a computer system or a computer data storage medium; (b) To make and retain a copy of those computer data secured; Enforcement and Implementation (c) To maintain the integrity of the relevant stored computer data; (d) To conduct forensic analysis or examination of the computer data storage medium; and (e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network. Enforcement and Implementation Pursuant thereof, the LEA may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination. Enforcement and Implementation Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court. Enforcement and Implementation The Supreme Court on the Disini Case: Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken. Section 15 does not appear to supersede existing search and Proof of Proper Collection and Storage of Evidence: Section 16. Custody of Computer Data: - All computer data examined under a proper warrant shall be deposited with the court within forty-eight (48) hours after the expiration of the period fixed therein. - It shall be deposited in a sealed package and accompanied by an affidavit of the LEA executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. Proof of Proper Collection and Storage of Evidence: - The LEA shall certify that no duplicates of the whole or any part of the data have been made, or if made, that all such duplicates are included in the package deposited with the court. - The package deposited shall not be opened, or the recordings replayed, or used in evidence, or the contents revealed, except upon order of the court, upon motion with due notice and opportunity to be heard to the person or persons whose communications have been recorded. Exclusionary Rule: Section 18. Exclusionary Rule. — Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal. Enforcement and Implementation Jurisdiction. — The Regional Trial Court shall have jurisdiction: 1.Cybercrime is committed by a Filipino regardless of the place of commission. 2.One of the elements was committed in the Philippines, or with the use of any computer system wholly or partly situated in the country. 3.When damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines. END OF PRESENTATION