VOID: DOJ’s authority to restrict or block access to computer data, Section 19 of R.A. 10175

R.A. 10175 or the Philippine Cybercrime Prevention Act of 2012 authorized the Department of Justice (DOJ) to restrict or block access to computer data.

In the various petitions filed before the Supreme Court, Petitioners sought to invalidate this provision primarily on the ground that it violated the constitutional right against unreasonable search and seizure, as well as the constitutional right to free speech.

This provision granting the DOJ to restrict or block access to computer data is reflected in Section 19 of R.A. 10175, which is faithfully reproduced herein:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

The above-cited provision empowers or authorizes the Department of Justice to issue an order restricting or blocking access to computer data which is found to be in violation of the Philippine Cybercrime Law. The only requirement is that there should be a “prima facie” finding of such violation.

Computer data refers to “any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online.”[1]

The entire provision on Section 19 was invalidated for violating the constitutional right against unreasonable search and seizure, as well as the constitutional right to free speech, which are guaranteed and protected by no less than the 1987 Philippine Constitution.

Void as Section 19 violates constitutional right against unreasonable search and seizure

Petitioners challenged Section 19 on the ground that it violated freedom of expression and the right against unreasonable searches and seizure. Interestingly, the Solicitor General which is tasked on defending the constitutionality of Section 19 conceded that it may be unconstitutional but quickly pointed out that the law enjoys the presumption of constitutionality.

The Supreme Court struck down Section 19 for violating the constitutional right against unreasonable search and seizure, as well as the constitutional right to free speech.

Computer may refer to “entire programs or lines of code, including malware, as well as files that contain texts, images, audio, or video recordings.” These computer data produced or created by their respective author may constitute personal property. Consequently, they are covered by the constitutional right against unreasonable search and seizure. This protection extends to computer data that are in their personal computers or in the service provider’s systems.

The constitutional right against unreasonable search and seizure is enshrined in Section 2, Article III of the 1987 Philippine Constitution. In essence, the State is prohibited from making any search or seizure over a person’s private property unless and until there is a court-issued search warrant. Thus, without the warrant, the Supreme Court notes that “the right to be secure in one’s papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable.” It is only a competent court through the judge that a search warrant may be issued after a personal determination of probable cause.

Section 19 railroads the entire process of search and seizure as it effectively allows the Government to place computer data under its control and disposition without any need of a warrant. The DOJ Order simply cannot substitute for a judicial search warrant required by the 1987 Constitution.

Further, the content of computer data is not only personal property but it likewise constitute free speech. Section 19 restricts freedom of speech in cyberspace as it empowers the DOJ to seize or take down such content without any judicial warrant. In effect, the DOJ becomes prosecutor, judge, and executioner. There is no judicial intervention at any point.

Moreover, Section 19 fails to comply with jurisprudential guidelines on how speech may be validly restricted. To restrain free speech, it may generally be evaluated using one or a combination of these recognized three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule. Section 19 does not use any of these tests. Instead, the legal provision simply relies on a “prima facie” finding of a violation of R.A. 10175 to authorize the blocking or restricting of computer data. When read with Section 6, Section 19 may even apply to any penal provision in any criminal law.

Commentary

It is interesting how computer data is considered as private property and treated as free speech. This is significant for any similarly situated cases in the future as this characterization of computer data in the case of Disini v. Secretary of Justice may be cited as precedent. Considering the broad definition of computer data, this could include digital documents, presentations, emails, SMS, programs, to mention a few.

On computer data being considered a private property, this blanket characterization may prove beneficial or detrimental depending on which side party is on. A simple SMS is a computer data. If this is deleted, that is destruction of property which may result in the offender being liable. Of course, this is subject to any applicable lawful defenses.

Related to computer data being a private property, this harmonizes with the copyright law under the Intellectual Property Code of the Philippines. The computer data is copyrightable either as an intellectual or artistic creation, as the case may be.

On the other hand, computer data is likewise characterized as free speech. The broad definition of computer data includes programs. Does this extend all the way to the source code, binaries, or computer language? To what extent is free speech in relation to computer data extends? This may be left for future discourse or discussions when there is an actual case or controversy.

Had Section 19 been declared valid, the DOJ would have a field day of taking down various websites if it makes a “prima facie” determination of a violation of Sec. 10175. Given its new character and with certain provisions being broad, there would be a lot of websites, blogs, and social media accounts which would be seized, restricted, or blocked under DOJ Order.

 

Reference:

[1] R.A. 10175. Sec. 3 (e).