MIRIAM: CYBERCRIME ACT UNCONSTITUTIONAL

Sen. Miriam Defensor Santiago, a constitutional law expert, said that the controversial Cybercrime Prevention Act is unconstitutional, because it uses language that is overbroad, as well as language that is too vague.

Hence, Santiago predicted that the Supreme Court will declare the law unconstitutional, and grant the numerous petitions filed to this effect by various netizen groups.

Santiago, who holds a doctorate in juridical science, attended postdoctoral studies on internet law at Harvard University where, she said, cybercrimes were already anticipated, as well as the temptation for governments to conduct online censorship.

"Prior censorship violates the overbreadth doctrine and the vagueness doctrine in constitutional law," she said.

Santiago explained: "Under the overbreadth doctrine, since the law is so broadly written that it deters free expression, then the Supreme Court will strike it down on its face, because of its chilling effect."

The senator also said that another reason why the Supreme Court will reject the law is that under the vagueness doctrine, it provides for punishment, without specifying what conduct is punishable, and therefore the law is void because it violates due process.

Santiago said that on its face, the Constitution provides for absolute freedom of speech by providing: "NO LAW shall be passed abridging the freedom of speech."

"Notice that the constitutional language is absolute. However, jurists have tried to balance the absolute language with vital social needs," she said.

The senator said that in constitutional law, freedom of speech occupies a so-called preferred position.

"The preferred position of free speech in the Constitution means that any law limiting free speech should be presumed to be either neutral or presumed to be unconstitutional. There is no presumption of constitutionality," she said.

Santiago listed the provisions of the Cybercrime Prevention Act that are too broad or two vague, tantamount to unconstitutionality as:

Sec. 4 para 4. It makes libel a cybercrime, if committed online;

Sec. 5. It punishes any person who aids or abets the commission of any cybercrime, even if it is only through Facebook or Twitter;

Sec. 6. It adopts the entire Penal Code, if the crime is committed by the use of information technology, but the penalty shall be one degree higher;

Sec. 7. It makes the same crime punishable, both under the Penal Code and the Cybercrime Act;

Sec. 19. It authorizes the Department of Justice to issue an order to restrict access to computer data which is found to be prima facie in violation of the new law. Sec. 19 is called "the takedown clause."

Santiago participated actively during the interpellation period and the amendment period of the bill in the Senate.

One of her major amendments was to require a court order before law enforcement authorities can collect, seize, or disclose data other than traffic data.

In addition, the Santiago amendment requires a court warrant for a search and seizure.

However, the senator was absent during the voting period because she was on sick leave for hypertension.

Santiago was keynote speaker at the inter-university conference on business and economics at Adamson University yesterday (October 6), where she briefly discussed the Cybercrime Prevention Act.

The conference was attended by a large number of students from various universities in Metro Manila.

She also called on the Philippines to become a party to the Budapest Cybercrime Convention of 2001.

Santiago said that if properly worded, a cybercrime law would be effective in preventing many cases of fraud. She gave as an example a case in 2000 when a Filipino hacker attacked and destroyed data in 45 million computers, causing damages estimated at $10 billion.

The hacker used the subject line "I love you" in the emails that carried it, prompting the media to call it the "Love Bug" virus.