Lawbytes 127: ADVOCATING FOR THE “RIGHT TO BE (DIGITALLY) FORGOTTEN” OF THE VICTIMS OF REVENGE PORN: ATTENTION NATIONAL PRIVACY COMMISSION! (Copyright by Dr. Atty. Noel Guivani Ramiscal)

In my cyberlaw advocacies concerning the rights of victims of Sexual Orientation and Gender Identity (SOGI) discrimination, I encounter different, ever nefarious, ways of how sexual predators and their cohorts try to manipulate and make their victims suffer. Consider the case of R, a normally smart woman, except when she fell in love. She acceded to her lover’s request of digitally filming their multiple lively sexual congresses, to pacify her lover’s entreaties that he would keep them as a private reminder of their love, when he goes overseas, and as an incentive for him to come back to her.

The fickleness of Fate and her lover’s voracious sexual appetite prevented that from happening. The current sexmate of her lover discovered the recordings and in a jealous fit, posted them on a website that panders to pornography. This site encourages people to post videos of their exes in compromising sexual positions as a way of getting back at them. As an added “attraction” the site has an affiliated “digital reputation” management firm that contacts the victims of the site and offers them the opportunity to have the offending videos deleted for a price, which is usually exorbitant. The offer has an expiry date and if the contacted entity cannot come up with the money to pay the firm, the video stays on the site and it is “shared”, that is, for a price to other pornographic sites. R could not pay, and even if she had the resources to pay the price, there is actually no assurance from the digital reputation firm that the video had not already been previously copied and circulated to other websites. So this is one way of perpetuating online the private intimate details of a victim’s life without the consent and knowledge of the victim.

Prior to the Data Privacy Law, there are two legal remedies that can be invoked against cyber privacy predators in the Philippine context that could assist victims like R. The earliest remedy, which recently got a judicial boost from the ruling of the Supreme Court in the Vivares case is the writ of habeas data. This case established the rule that any person whose information (paper or electronic) is subject to the collection by any entity without the person’s consent can go to court via a writ of habeas data and have the collected information (among others) destroyed. The entity’s purpose or intent in collecting the information is immaterial and it is also not relevant if the entity engaged in this activity for personal enjoyment or as a business concern.

The second, later and more obvious remedy is the Anti-Boso Law, which criminalizes the act of disseminating or distributing in real time or in the internet, (among others) the act of sexual intercourse between two partners without the consent of the parties involved, even if they originally consented to the filming of the act itself.

In my lectures for lawyers and other professionals and SOGI advocates, I offer another legal alternative, i.e., the Intellectual Property Code. If the victim actually produced, acted, or had a hand in making the digital recording, then any unauthorized distribution of that recording, without the victim’s consent, can be considered an infringement on the victim’s copyright. This is considered a criminal offense because under the IP Code, copyright infringements do not only have civil aspects but are crimes as well.

One can also apply the Cybercrime Prevention Act in this regard because in the commission of the crime, a computer and/or computing system/network was definitely utilized. This will increase the criminal penalties of the accused by one degree.

Under the current Data Privacy Law, victims of revenge porn can take refuge in the law’s recognition of the right of any data subject to be “forgotten” or digitally “erased” from the web, or at least certain portions of the Internet. It all started with a Spanish case about (of all people) a lawyer trying to address the damage to his reputation concerning his cases pertaining to his unpaid debts which he already settled. Google Spain continually came up with search lists that included his cases and he sought to have these materials “delinked” to his name, and he succeeded.
The issue with the Philippine Data Privacy Law and its Implementing Rules and Regulations (IRR) promulgated by the National Privacy Commission (NPC) last September 2016, is that they contain no Guidelines or procedure as to how to operationalize or actualize this right.

The NPC as the vanguard of the data privacy rights of data subjects, like victims of revenge porn, must not gloss over this right. The NPC can consider the three legal remedies I have discussed in this article and incorporate them in whatever procedure they will formulate to actualize this right.

What would be truly useful is if NPC can provide assistance to victims who desire to deal with digital reputation management firms in an informal and effective manner, assuming that the victims do not desire to file criminal cases. What is also crucial is if NPC can also clarify the extent of “digital forgetting” as far as search engines go. If for example the offending material appeared in Google search engine, can victims have recourse to Google worldwide or merely Google.ph?

In the meantime, SOGI advocates and legal practitioners who are engaged in procuring redress for revenge porn victims can choose to avail of all these remedies I have discussed and see which one is most effective for their clients.

One final caveat, even though these remedies are available, and the extraterritorial reach of the Data Privacy law and its IRR, (and relatedly the Philippine Cybercrime Prevention Acts and its IRR) can actually cover any state in the entire planet, there is no assurance that any Philippine court or agency, including the NPC, can actually and effectively enforce these remedies against foreign maintainers of revenge porn sites.

Lawbytes 126: OPERATIONALIZING DATA PRIVACY IN LAW FIRMS (Copyright by Dr. Atty. Noel Guivani Ramiscal)

My cyberprivacy advocacy have taken me to some interesting places, including law firms. When UPIAJ invited me to lecture at the ACCRALAW Tower for the ACCRALAW lawyers last June 17, 2017, on data privacy, I jumped at the opportunity of scrutinizing the policies and practices of this law firm which has a long and illustrious history in the Philippine legal industry, and therefore a good benchmark for Philippine law firms, as far as protecting data privacy is concerned. My objective was to perform an informal external audit to see how the firm has complied with some of the most crucial requirements of the data privacy law (R.A. 10173) which is probably one of the most controversial and challenging laws that all Philippine entities that fall within its scope as a “personal information controller” (PIC) must deal with.

The firm’s website has a News & Updates portion which contained an article concerning the deployment of the iManage system that apparently was done last January of this year. The article states:

xxx In iManage, ACCRALAW has deployed a sophisticated Work Product Management system that encompasses document management, email management, knowledge management, analytics, process automation and more.”

In the first few months of going live with iManage Work, ACCRALAW has already experienced significant benefits. iManage Work integrates seamlessly with ACCRALAW’s existing practice management system, so that when a new matter is created, a workspace is automatically generated in iManage Work, without the need of manual intervention. Within minutes, users can start saving and publishing documents to this centralized repository, allowing anyone connected to the matter to search, access, and view the related files — saving valuable time and enabling more efficient collaboration.

iManage Work has been rolled out across all of the Firm’s practice departments. As a result, the Firm can better carry out work on behalf of its clients in areas ranging from Litigation and Dispute Resolution, Corporate and Special Projects and Intellectual Property, to Labor, Tax and other specializations. [ACCRALAW Deploys iManage for Document and Email Management,January 30, 2017, http://www.accralaw.com/news-updates/accralaw-deploys-imanage-document-and-email-management, accessed July 25, 2017]

In my lecture, I asked the over 40 lawyers present several questions including: Were ACCRALAW’s clients informed, and their written consent secured re: their personal information being subject to “processing” thru the iManage system prior to its roll-out? I further asked if there was a Privacy Impact Assessment (PIA) made prior to the deployment of iManage with respect to their clients who are, in all probability, the “data subjects” whose data are inputted in the iManage system. The response was not positive or clear. To be fair, none of the firm’s IT experts, nor the head of the MIS department, nor its Chief Privacy Officer was there to elucidate on this issue.

The article merely mentioned that before “deciding on a Work Product Management system, ACCRALAW exercised due diligence by visiting several legal firms in neighboring Malaysia that were iManage customers, to hear their opinions first-hand.” If its clients’ consent was secured and a PIA was actually done, then these should have been mentioned in the article. Gathering the opinions of iManage users cannot substitute for the firm actually securing their clients’ consent to the iManage system and conducting the actual PIA that are legally mandated and should have been part of the firm’s due diligence. It is also a legal must that the iManage system must be registered with the NPC, as part of the compliance processes that ACCRALAW as a PIC must undergo. I was not able to get any confirmation if iManage was already registered with NPC.

One good thing about the ACCRALAW’s implementation of the iManage system is that the firm does not utilize the hybrid cloud storage and infrastructure services offered by iManage. iManage’s hybrid cloud purportedly services over 1,800 law firms globally. In this connection, I discussed some of the dangers of entrusting clients’ data to cloud services. By choosing not to hand over their clients’ data to iManage’s cloud, and by deciding to develop their internal expertise in managing and dealing with data issues, ACCRALAW will thus avoid the data security breaches that plague the cloud. It is also commendable that the firm is training its own people on e-data management because they can develop the expertise that can be crucial in the electronic discovery of data that is in the iManage system which could be the subject of future litigation.

Another IT system the ACCRALAW is using is the Elite system for its financial records. The firm has an access policy which contains restrictions and delineates the people who are allowed to access these important records and the system. Other records of significance are located off-site. These are crucial procedures and protocols that can further avoid data security breaches. It is not clear though if the Elite system is registered with NPC.

As of the time of this blog’s publication (July 25, 2017), the ACCRALAW website still does not contain any posting of the law firm’s privacy policy or privacy code. I told the audience that they should pose this document on their website as part of their compliance with the NPC directives. One member of the audience said that they are still at work in crafting their policy/code.

I also found out that the firm has no social media policy and no Bring-Your-Own-Device (BYOD) policy which can create problems for the firm. While lawyers are supposed to observe the confidentiality of communications between them and their clients, I told the audience that cases abound in different jurisdictions where lawyers using social media have honoured this professional obligation in the breach. Some of the junior lawyers who brought their mobile phones with them confirmed during my lecture that these devices are owned by them personally. Assuming that they use these e-devices for their professional work as well, complications can arise due to the commingling of personal and professional data on these e-devices, if any of these data become the subject of litigation. Also, lawyers tend to be mobile, increasing the risk of security breaches on these devices. Firm clear policies on these matters, including access policies to the firm’s IT assets, and their effective implementation can actually serve as an insurance and defense for the firm in any future controversy that involve data breach and gross negligence charges levelled against it.

There are a lot of things that lawyers need to know in securing their own data as well as the data of their clients. The Chief Privacy Officer of any organization has their work cut out for them. The Data Privacy Law was passed last 2012. In a seminar I attended last January of this year, NPC Deputy Commissioner Ivy Patdu made the pronouncement that even if the law’s Implementing Rules and Regulations were promulgated over four years after its passage, the NPC operates on the principle that all PICs should have formulated and implemented the necessary policies, safeguards, and protocols that were clearly mandated by the law way back in 2012. All PICS (including law firms like ACCRALAW), as it stands, only have up to September 9, 2017 to comply with the registration requirements under this law. Law firms are particularly placed on the spotlight because they are supposed to be models of legal and regulatory compliance. Here is trusting that all Philippine law firms can duly and timely comply with the NPC requirements.

LAWBYTES 125: DATA PRIVACY, DETECTIVE AGENCIES AND THE TRAGIC AMY BOYER’S LEGACY, ATTENTION: NATIONAL PRIVACY COMMISSION (Copyright by Dr. Atty. Noel G. Ramiscal)

One of several heartrending true stories that I recount in my lectures on Data Privacy and on Sexual Orientation Gender Identity and Online Violence, [like the MCLE series of the University of Cebu (UC) and the students of UC last April 27 and 29 of this year], was the case of Amy Boyer. She was a victim of cyberstalking and murder at the hands of a former classmate in 8th grade, whom she had no idea was obsessed with her: Liam Youens.

When their lives took them to different places, Liam continued his obsession with her online. He developed a public website with her name as part of the URL. In this website he documented his violent passion for Amy and the means and ways that he intended to kill her. He went so far as to declare that his greatest regret was in not having killed her in 8th grade.

In order to accomplish his lifelong mission, Liam engaged the services of an online private investigation and information service “Docusearch.com”, in order to obtain the current whereabouts of Amy. Docusearch.com is in the business of procuring and selling pieces of online information about anything or anyone, no questions asked, so long as the price is right and is paid upfront. Its president, Daniel Cohn, is a licensed private investigator in Florida.

Liam contacted Docusearch through its Internet website and requested the date of birth for Amy Lynn Boyer. He gave Docusearch his name, New Hampshire address, and a contact telephone number and paid the $20 fee by credit card. Docusearch provided Liam with the birth dates for several Amy Boyers, but none was for the Amy Boyer sought by him.
On succeeding days, Liam ordered and paid for Amy’s social security number (SSN) which costed $45 fee by credit card, and paid $109 fee twice by credit card for Amy’s employment information. He also requested a “locate by social security number” search for Amy and paid the $30 fee by credit card. Docusearch finally informed Liam of Amy’s employment address at Dr. John Bednar’s office at 5 Main Street, Nashua, New Hampshire. Docusearch acquired this address through a subcontractor, Michele Gambino, who had obtained the information by placing a “pretext” telephone call to Amy in New Hampshire. Gambino lied about who she was and the purpose of her call in order to convince Amy to reveal her employment information. Gambino had no contact with Liam, nor did she know why Liam was requesting the information.

Over a month after finding out where Amy worked, Liam drove to her office, patiently waited for her to come out, fatally shot her, and then killed himself.

The Estate of Amy Boyer sued Docusearch and the case went all the way to the Supreme Court of New Hampshire. The court held among others that private investigators who do not know the purpose or the reason why their client is seeking the information, “creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed” to the client. Private investigators can be held liable by the third person or his/her heirs who suffered from the misconduct caused by the private investigator’s client who acted on the information given by the private investigator.

The New Hampshire Supreme Court discussed the possible deleterious effects of two crimes that are involved which are perpetrated with the use of private investigators: identity theft and stalking, of which Amy Boyer was a victim. “The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person’s personal information to a client.” Furthermore, any pretextual phone call or communication by the private investigator based on deception to gather personal information from an unsuspecting 3rd party could be held liable by the 3rd party. Amy’s death brought to the fore the dangers of the unauthorized disclosure of SSN that a law was passed prohibiting the sale or dissemination of SSNs without a legitimate purpose.

Prior to the passage of the Philippine Data Privacy Law (R.A. 10173), I was a Consultant of the former Commission on Information Communication and Technology (CICT) on the separate bills covering cybercrimes and data privacy. I gave a white paper on the Data Privacy Bills which delineated several concerns I had, amongst them, the deleterious impact of the bills on the livelihood of scores of private detective agencies scattered all over the regions of the Philippines.

Private detective agencies under the Data Privacy Law and the Philippine Cybercrime Prevention Act (R.A. 10175) have no express legal authority or legal exemption to collect, process, preserve, or destroy any form of electronic data that constitutes personal information of any data subject, without first informing and getting the written consent of the data subject him/herself. Thus, the surreptitious methods, pretexting and covert operations that detective agencies do to acquire e-data would run contrary to the Data Privacy Law and make them liable to criminal and civil penalties with damages in favour of the data subjects they targeted.

In my lectures, I have mentioned that it is crucial that the National Privacy Commission (NPC) come up with an advisory opinion or proper Guidelines as to the parameters of the allowed operations or processing of personal information of data subjects by commercial and private information brokers like detective agencies. Without such Guidelines, all detective agencies in the Philippines are vulnerable to criminal charges of being data privacy violators.

In closing I would like to thank the very gracious, generous and great UC founder, Atty. Augusto W. Go, the very efficient, understanding and accommodating MCLE Committee and UC staff, the very bright and promising UC law students, and three amazing, gorgeous UC lawyers: Attys. Ria Lidia Espina, Annie Tan and Josh Carol Ventura! My mom and I are truly grateful for the splendid time we had there. Our compliments to the spacious, unpretentious and comfortable Alicia Apartelle which served some of the best crispy pata and lechon kawali we ever tasted! Deo Gratias!

LAWBYTES 124: SOCIAL MEDIA + CREDIT RATING = DATA PRIVACY VIOLATION,ATTENTION: NATIONAL PRIVACY COMMISSION (Copyright by Dr. Atty. Noel Guivani Ramiscal)

Social media has defined, or at least definitely encroached on the real lives of people all over the world. In 2016, over 2.6 billion people owned some form of social media account or participated in some social media activity. If social media were a country, it would be the most powerful and vast country in the world.
Fortunately or unfortunately, social media is also now one of the factors, or “knowns” that data brokers, credit bureaus, hackers and stalkers, potential and actual employers, and even potential and actual lovers mine and harvest to deal with their data “subject” or data “prey”.

In my lectures for the lawyers in the MCLE of the University of Cebu (UC), and to a certain extent, to the Credit Management Association of the Philippines (CMAP) members, I apprised the participants of the disturbing fact that Facebook had been granted a US patent for an algorithm that evaluates a user’s social media connections to determine if such user deserves to have his/her loan application approved. The patent document states:

When an individual applies for a loan, the lender examines the credit ratings of members of the individual’s social network who are connected to the individual through authorized nodes. If the average credit rating of these members is at least a minimum credit score, the lender continues to process the loan application. Otherwise, the loan application is rejected [see U.S. Patent No. 9,100,400 (filed Aug. 4, 2015)].

As I have pointed out in my previous lectures since 2013, FaceBook is probably one of the biggest cyberprivacy violators in the world as proved by the numerous complaints and cases lodged against it in several countries and the settlements it has made with the US Federal Trade Commission for violating the privacy rights of its own subscribers on many occasions. This patent is disconcerting because there is no guarantee from Facebook and those that utilize this technology if the data subject and his/her social media connections are ever informed beforehand, and their written consent taken as to the fact that their online relationships are processed by the technology to determine the credit rating and loan approval of the data subject.

What FaceBook did is merely a logical conclusion to what other credit lenders have done in the past. For example
Kreditech supposedly examines over 15,000 pieces of e-data, including social media data, to determine the creditworthiness of an individual in an emerging economy or market where credit ratings are inexistent. A Nigerian company BinCom developed a proprietary algorithm that has a similar purpose to what FaceBook created, i.e., determine the credit rating of an individual based on his/her social media standing.

One company engaged in such a venture is Lenddo which actually originally started in the Philippines and still has a branch in this country. In its original schema, potential loan applicants would have to authorize Lenddo to access their social media profiles which would expose their online connections. Based on Lenddo’s proprietary algorithm that processes all the applicant’s social media data, a decision whether to approve or deny the loan will be made by Lenddo. It also has repercussions beyond the loan application. For example, if a borrower defaults on a payment, that could trigger an alert to the social network of the borrower negatively affecting the Lenddo scores of all the members of such network. Lenddo had supposedly given up its lending services to focus instead on selling its algorithmic services to entities like banks.

When I apprised the CMAP audience about Lenddo last April 24, 2017 at their 85th Anniversary Conference, only one member of the audience knew what it did generally. This is surprising considering that CMAP is comprised of some of the biggest data and credit processors in the Philippines.

I scoured the Bangko Sentral ng Pilipinas (BSP) website and it does not contain any circular or directive or pronouncement as to social credit rating algorithms employed by banks. Its current Manual of Regulation of Banks (MORB) does not provide any recognition for this type of credit schema.

The National Privacy Commission (NPC) which is the vanguard of the data privacy rights of Philippine citizens, and its officials, have nothing to say about this relatively new development in their website or in their individual pronouncements. In fact my main purpose in writing this article is to alert the NPC about this matter. Let us trust that NPC and the BSP would address this issue meaningfully and effectively within this year. Kudos to the CMAP and all its officers and members for their resoundingly successful 85th anniversary. And I would like to express my appreciation to all the lawyers and the MCLE Committee of the UC who gave me such a warm and generous reception! Mabuhay po tayong lahat!

LAWBYTES 123: THE INFORMATION COMMUNICATION TECHNOLOGY (ICT) SUMMIT FOR MILLENNIALS AND THE FIRST LEGAL LECTURE ON 4D PRINTING IN THE PHILIPPINES (Copyright by Dr. Atty. Noel Guivani Ramiscal)

Last December 4 and 11, 2016 were significant occasions for my cyberlaw advocacies. I got to lecture for, and interact with over 500 millennials on current and present issues on cybercrime, social media, cryptology and 3D printing. The one day ICT summit on Gensan and Davao cities were endorsed by the Philippine Commission on Higher Education, the Professional Regulatory Commission and the newly formed Department of Information Communication Technology, upon the efforts of one of the providers, UPRC.

Needless to say, I was thrilled. This was the first time that a summit covering all those topics specifically geared toward the concerns of millennials was ever held in the Philippines. These gave me the opportunity to reach out to the young people and leaders in these places and share with them my cyber law advocacies and at the same time learn from them, particularly the matters they really desire to know and lack guidance in. When I finally got to these places (the KCC Convention Center in Gensan and the Philippine Women’s College activity area in Davao) I was bawled over by the warm reception I got from the millennials who attended and stayed for the entire duration of the summits. The audience comprised of students, educators and professionals who are mostly 18 to their late 20s who actually paid in full the registration fee. Some of them stated that they paid with their allowances. Not desiring to disappoint, I took them through the “essentials” in the commission and means to address cybercrime; the scientific, technical and legal developments in cryptology and how these concern their security and privacy; the various ways 3D printing can disrupt their professional and personal lives, as well as intellectual property concerns; and how social media’s usage can determine one’s survival in both the virtual and real worlds.
In both summits I conducted, where I spoke and interacted with the audience for more or less 8 hours, I felt their authentic desire and hunger for cyber law knowledge, which were also reflected in the comments they gave me on the evaluation sheets. It is truly my privilege to have done this for them.

In my pursuit of blazing the trail for Law and Information Technology (IT) Evangelism, I have decided to incorporate in my 3D printing lectures, the newest development which is 4D printing. This type of printing added a new dimension, i.e. time, to 3D printed objects, and what were once static printed objects become “alive” as they interact with “time” bound elements like water and atmospheric pressure. I analyzed the emerging legal issues concerning 4D printing and presented my research findings for the first time last February 16, 2017 for the UP Law School’s IAJ. It was my honor to present this for my alma mater and I am so grateful to the supportive attendees, one of whom is Atty. Bob Dela Fuente, who is in what is probably my longest, in terms of time, group of a few close friends from UP.

LAWBYTES 119: HUMAN PRINTING IN 3D TECHNOLOGY: THE NEXT STEP TO IMMORTALITY? [THE FIRST 3 HOUR 3D PRINTING MCLE LECTURE IN THE PHILIPPINES](Copyright by Dr. Atty. Noel G. Ramiscal)

Charles Hull invented the “stereolithography” process which forms the backbone of what we now know as the 3D Printing technology. He described it as a process that involved “[slicing] a computer-aided design (‘CAD’) file into two-dimensional cross-sections and used an ultraviolet laser to ‘print’ the cross-sections layer by layer in a photosensitive resin.”[U.S. Patent 4,575,330 (Aug 8, 1984) (“Apparatus for Production of Three-Dimensional Objects by Stereolithography), http:// http://www.google.com/patents/US4575330). When he got a patent for it in 1984, the technology was made available to only a few entities with deep pockets who can afford to explore the possibilities that such technology can offer. 32 years later, with the expiration of his patent (as well as the patents for some of the inventions related to this process), the Do-It-Yourself or the Maker Movement, together with 3D printer manufacturers like the Makerbot, and open source communities like Thingiverse, have taken and “democratized” the technology to new levels, in terms of access and applications.

MCLE for IBP Makati, Dr. Atty. Noel G. Ramiscal, March, 12, 2016, cybercrime and 3d printing

MCLE for IBP Makati, Dr. Atty. Noel G. Ramiscal, March, 12, 2016, cybercrime and 3d printing

Having observed the dizzying developments in this new/old field, I have desired to lecture on the various legal issues concerning the applications of 3D printing since 2014. In January 23, 2015, I decided to discuss 3D printing guns for the Integrated Bar of the Philippines Makati Chapter, as part of my Mandatory Continuing Legal Education (MCLE) lecture on Electronic Evidence Trends. In the August 7-8, 2015 3D Printing Expo held at the SMX Convention Center, Atty. Del Rosario (IPAP President) was invited to discuss the intellectual Property Rights (IPR) issues concerning 3D Printing. In my MCLE lecture for the Bureau of Customs last March 9, 2016, I delved on the Tariff Issues concerning 3D printed products. Finally, in my March 12, 2016 MCLE Lecture for the IBP Makati, I addressed the cybercrime component of 3D printing in the context of fashion and infringing 3D CAD files. As far as I know these were the only instances when 3D printing legal issues were tackled in a more or less “formal” setting in the Philippines for lawyers and other professionals.

Bureau of Customs MCLE lecture of Dr. Atty. Noel G. Ramiscal, March 9, 2016, tariff issues on 3d printed goods

Bureau of Customs MCLE lecture of Dr. Atty. Noel G. Ramiscal, March 9, 2016, tariff issues on 3d printed goods

It was therefore, such a momentous occasion for me, when I finally got to lecture for 3 hours on the legal issues concerning the 3D printing technology for the ACCRALAW firm, with the University of the Philippines Institute of Administration of Justice as the MCLE provider, upon the approval of the Supreme Court. In my submission of the outline for my lecture, I made it very clear that my lecture will not focus merely on IPR issues, but will give an overview of the many fascinating issues this technology poses for the legal profession.

Dr. Atty. Noel G. Ramiscal at the ACCRALAW Tower for his historic MCLE lecture on the Legal Issues of 3d Printing, October 1, 2016

Dr. Atty. Noel G. Ramiscal at the ACCRALAW Tower for his historic MCLE lecture on the Legal Issues of 3d Printing, October 1, 2016

I gave the ACCRALAW lawyers fair warning at the start of my lecture that what I will share with them consists mostly of my opinions and insights culled from several years of my research and fascination with 3D printing, and its applications, which all started with two of my avocations: fashion and jewelry designing. The Philippines currently has no law or jurisprudence concerning 3D printing and I am not aware of any government agency regulating 3D printing, although there is an active 3D printing community in the Philippines and there are online outlets where one can buy 3D printers and go to for 3D printer services.

Dr. Atty. Noel G. Ramiscal delivering the first full 3 hour MCLE lecture on the legal issues of 3d printing in the Philippines, October 1, 2016

Dr. Atty. Noel G. Ramiscal delivering the first full 3 hour MCLE lecture on the legal issues of 3d printing in the Philippines, October 1, 2016

In dealing with this technology, which is probably the most disruptive technology since the advent of the PC, I apprised the lawyers present of the conceptual challenges arising from the appreciation of a 3D CAD file. A 3D CAD file of an object can be generated by designing it with an application like Autodesk, or by scanning it, or by availing of ready made 3D objects and combining them to form new 3D objects, like what exists in the 3D Builder Library of Microsoft Windows 10, which I showed to the audience. The current controversies in 3D printed objects almost all center on the nature of these 3D CAD files.

Some of the ACCRALAW lawyers who attended Dr. Ramiscal's MCLE lecture, 10-01-2016

Some of the ACCRALAW lawyers who attended Dr. Ramiscal’s MCLE lecture, 10-01-2016


Some of the 70 strong ACCRALAW lawyers who attended Dr. Ramiscal's MCLE lecture, 10-01-2016
Other ACCRALAW lawyers who attended Dr. Ramiscal's MCLE lecture, 10-01-2016

Other ACCRALAW lawyers who attended Dr. Ramiscal’s MCLE lecture, 10-01-2016

3D CAD files do not automatically generate 3D printed objects. As I explained, two things must happen. First, they have to be saved or converted to a format that a 3D printer will accept. For now, the “ancient” .stl format is still popular, but there are others that are jockeying for interoperability supremacy like .amf format and the .3mf format. Second, these appropriately formatted CAD files must be “fed” to 3D printers which will operate in accordance with the files’ specifications or “instructions”. In “owning” these 3D CAD files to go after infringers, or to prove products’, and even medical liability, lawyers for all sides must consider the technical nature of these files in arguing their cases. I strove to show the audience what the possible arguments could be.

The ACCRALAW lawyers appeared to enjoy themselves, as I took them through the gamut of health and safety concerns, environmental implications, labor displacement, medical legal issues, consumer issues on 3D printed drugs and food, cultural heritage, fashion law, freedom of speech and the rights of artists which are all implicated in this technology, peppered with my personal anecdotes and examples culled from different fields.

One controversial matter I discussed in my lecture which I would like to emphasize in this article is the probability that when Charles Hull invented the stereolithography process, he may not have foreseen that this could be an answer to the quest of some entities for immortality. The relatively new field of synthetic biology and the 3D printing technology are seen by certain people as the ticket to creating new organisms and bringing back lost species. Synthetic biologists have linked four natural nucleotides (A, C, G, T) “into a new, synthetic strand of genetic material” and created two new synthetic nucleotides (X, Y). As Dr. Anthony Atala, one of the respected pioneers in this area, have said “we can grow organs instead of transplanting them. Beyond bioprinting body parts, some speculate future possibilities of printing mammalian or human clones and bringing back extinct animals.”

Dr. Atty. Noel G. Ramiscal discussing legal and ethical issues of "Humanprinting" in 3D, October 1, 2016

Dr. Atty. Noel G. Ramiscal discussing legal and ethical issues of “Humanprinting” in 3D, October 1, 2016

As of now, researchers and scientists have successfully 3D manufactured human skin, ears, noses, jaw bones, parts of the human skull and even certain organs. There are ethical and religious debates concerning the possibility of 3D printing kidneys, hearts, and so on, particularly if the cells were culled from other humans, embryos, or animals, and perfecting a human being’s organs to prolong his/her life or give him/her extra “powers”. Jasper Tran coined the word “cloneprinting” but I prefer to use the term “human printing” to refer to the possibility of 3D printing back humans. It is interesting to speculate on how that will wreak havoc on our succession laws and other laws that pertain to persons, family and property relations. Dead dictators, infamous criminals as well as saints and beloved leaders can be resurrected if their DNA were preserved. I showed the audience a picture I took of a preserved suit of Dr. Jose Rizal displayed at the Dapitan Shrine in Dipolog, and how that suit or any personal relic that the Rizalistas have, which contains his authenticated DNA, can be used to bring him back. In a 3D printing world, no one has to die, they only need to be 3D printed.

Heaps of appreciation to the wonderful 70 strong ACCRALAW lawyers who appeared quite receptive to my insights and my particular brand of humor. I do believe that MCLE lectures like any other learning session should be fun and enjoyable. As always, especial thanks to the forward thinking UP IAJ, its gracious Director, Prof. Patricia Salvador Daway, the very supportive UP IAJ staff, and the accommodating ACCRALAW staff.

LAWBYTES 118: SOCIAL MEDIA AS A MEANS FOR SEXUAL CRIME SURVIVORS TO TAKE CONTROL OF THEIR STORIES (Copyright by Dr. Atty. Noel G. Ramiscal)

For many years, I have been involved in advocacies pertaining to the responsible use of social media, particularly in the case of survivors of sexual crimes and domestic violence. In the world Before Social Media (BSM), sexual crime victims can hide within their homes, or can relatively avoid the glare of publicity and world scrutiny. Rape shield laws in different countries have, to a certain extent, prevented their identities and the traumatic experiences they went through, from being the fodder of newspaper sales and gossip.

In the Philippines, rape victims’ privacy rights are recognized at the stage of the investigation of the criminal complaint. “Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public” (Section 5, Republic Act No. 8505, February 13, 1998).

Republic Act No. 7610, made effective last June 17, 1992, gave an abused child the right to have his/her name “withheld from the public until the court acquires jurisdiction over the case. It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party” (Section 29).

In the world After Social Media (ASM), the relative anonymity and seemingly unfettered tell all mentality that this medium offers had circumvented the safeguards that the laws have established to protect crime victims. Before a crime is even reported to the police, chances are evidence of it had already been tweeted, pinned, instagrammed or reported in any of the hundreds of social media sites that now exist.

Dr. Atty. Noel G. Ramiscal at the Liceo de Cagayan University, September 8, 2016

Dr. Atty. Noel G. Ramiscal at the Liceo de Cagayan University, September 8, 2016

The perpetrators of several heinous crimes are not shy from disseminating the evidence of their intentions, thoughts and evidence of their crimes through social media and personal sites. Liam Youens, the cyberstalker and murderer of Amy Boyer revealed in his website of his deepest regret of not killing her when they were in high school, and of his many plans of killing her after that period. Murderer Kevin Ray Underwood maintained blogs that detailed his obsessions prior to his killing, then raping, and attempting to eat his victim, Jamie Rose Bolin. In the gang rape of a 16 year old girl in Steubenville, Ohio, the rapists, and those who helped them cover up the rape, dubbed the “rape crew”, took pictures and video of the victim, traded and posted them in social media sites like YouTube, Tweeter and Instagram. The dissemination of the photos of the alleged rape of then 15 year old girl, Rehtaeh Parsons in Nova Scotia, Canada, by her victimizers, that led to Facebook requests from strangers requesting to have sex with her and constant sextexts and cyberbullying led her to try to commit suicide, which eventually led to her coma and death. The gross enormity of social media’s capacity to amplify the abuses and the pain suffered by the victims and the people who love and care for them, cannot be gainsaid.

Currently, one of the social media sites that is the “flavor” of the moment for students is Yikyak, which is accessible in the Philippines. In the past year and this year, it has enjoyed its share of infamy because its capacity of offering anonymity to any poster have led to postings that are criminal in nature. Nowhere is this more evident than in the case of Grace Rebecca Mann, who was the student and campus leader of Feminists United at the University of Mary Washington, who was killed sometime in April, 2015. She and other members of her student organization had been the subject of violent threats on Yik Yak, including a number that threatened to rape or kill members of the group. After her violent death, her organization has filed a suit against the University of Mary Washington’s President Richard Hurley for his alleged failure and negligence to prevent Mann’s death, despite the repeated reports filed by Mann and other members of the group to him that they felt unsafe because of the Yik Yak postings. This case is currently awaiting resolution and can serve as a doctrinal case concerning the liability of higher educational institutions for the harms inflicted on their students connected with social media.

Liceo de Cagayan University students who attended Dr. Ramiscal's lecture, September 8, 2016

Liceo de Cagayan University students who attended Dr. Ramiscal’s lecture, September 8, 2016

But one thing that I have noted, which I brought to the attention of the Liceo de Cagayan University (LDCU) students last September 8, 2016, and the lawyers who attended my September 30, 2016 MCLE lecture for the ACLEx at Hotel Cielito Makati on the Legal and Ethical Hazards of Social Media, is the way some victims of these crimes have taken control of their social media postings, to ultimately control their own stories.

In 2015, one of my former students at the University of the Philippines Los Baños (UPLB) College emailed me the link to a public FaceBook posting by a female UPLB student detailing the sexual assault allegedly inflicted on her by a foreign scholar from one of the UPLB institutes. When I got the link and read her story, I forwarded the link to the officials of the Commission on Higher Education (CHED). I have no update on what happened to her case but her public posting revealed her moral strength to come out and say that what happened to her is not alright. She deserves all the support and help that she can get.

Some lawyers who attended ACLEx MCLE lecture of Dr. Ramiscal, 9-30-2016

Some lawyers who attended ACLEx MCLE lecture of Dr. Ramiscal, 9-30-2016


Victim blaming for sexual crimes is unfortunately still with us, even after decades of research and findings that victims do not share the blame for what happened to them. To counter this seemingly ingrained “rape culture”, one woman tweeted rape victims to come out in the open to share what they were wearing when they were raped to disprove the premise that they were asking for it. This led to a discussion which trended into #RapeHasNoUniform.

One of the most cruel things that sexual crime victims have to endure would be the diminution of the crime perpetrated against them, and the apparent personal reduction of their pain to a meme, which their peers can use to further ridicule and bully them. This is what happened to 16 year old “Jada”, an African American girl who was drugged and raped at a party. Her unconscious, undressed, and apparently raped state at the party was taken and circulated in social media sites. Her classmates and peers made fun of her appearance and posted photos of themselves mimicking her “pose” which trended in Tweeter as #jadapose. Because of the constant bullying, she dropped out of school. But instead of dropping out of life, she made a courageous decision, supported by her mother, to counter the horrible meme, with her own tweeted photo #iamjada, and talked with members of the press about the crime she suffered, and explaining “Everybody has already seen my face and my body, but that’s not what I am and who I am.”

Dr. Atty. Noel G. Ramiscal at his ACLEx MCLE lecture, Hotel Cielito, September 30, 2016

Dr. Atty. Noel G. Ramiscal at his ACLEx MCLE lecture, Hotel Cielito, September 30, 2016


I wholeheartedly applaud and I am grateful to people like Jada and that UPLB student for their undeniable Grace of Being and Dignity, showing an alternative, and probably the best response to this, or any kind of abuse. Survivors are not defined by the defilement they experienced. Instead, they should be cherished for the Humanity and Courage they give and inspire in others.
Dr. Atty. Noel G. Ramiscal with Mr. Luke Igot, LDCU, September 8, 2016

Dr. Atty. Noel G. Ramiscal with Mr. Luke Igot, LDCU, September 8, 2016


I am grateful for the Licean Corp Diplomatique of LDCU, its Chancellor, Ms. Sarah Bermiso, their adviser, Mr. Luke Igot, the Chair of the Department of Behavioral and Social Sciences, Mr. Reynaldo Sual, the Dean of College of Arts and Sciences, Dr. Rosella Ortiz, and Ms. Nathalie Igot of CHED Region 10 for giving me the opportunity to connect with the wonderful LDCU students on the relevant matter concerning the hazards of social media. Especial shout outs as well to the first rate Asian Center for Legal Excellence, its President, Mr. Roberto Borromeo, the Centro Eskolar University Associate Dean for the School of Law and Jurisprudence, the brilliant Atty. Ritalinda Jimeno, and the extremely helpful ACLEx staff headed by Mr. Alex Canata for allowing me to share my advocacy on the ethical use of social media to lawyers for their Mandatory Continuing Legal Education seminar series. Mention must be made of the superb food and service at Hotel Cielito in Makati. Finally, thank you to all the lawyers who expressed their support and appreciation for my advocacy and lectures on these, and related matters, including my endeavour to present the foibles of humankind displayed in social media postings, in a humor injected manner, remembering that Laughter is part of our Humanity.

LAWBYTES 117: THE PHILIPPINE ANTI-WIRE TAPPING LAW, THE ERRONEOUS RULES OF E-EVIDENCE ON EPHEMERAL COMMUNICATION, THE REALITY OF E-DEVICES, RES GESTAE EVIDENCE RE: MURDERED VICTIMS (Copyright by Dr. Atty. Noel G. Ramiscal)

In one of my MCLE lectures on the “Handling of Electronic Evidence,” a lawyer relayed to me an issue that sooner or later will confront the Philippine Supreme Court and challenge its Rules of Electronic Evidence and its perception of electronic data.

The lawyer related a controversy regarding the SD card in a mobile phone of the murdered victim that contains the records of conversations between the victim and the alleged killer. An opposing counsel objected to the presentation of the evidence because it allegedly violated the Anti-Wire Tapping act of the Philippines.

This matter raises several significant issues that I have discussed several times in my MCLE lectures this year for the Integrated Bar of the Philippines Caloocan Malabon Navotas (CALMANA) Chapter (February 6, 2016), Laguna Chapter (February 13, 2016), Leyte Chapter (April 28, 2016), Negros Oriental Chapter (May 17, 2016), Lanao del Norte (July 12, 2016), Zamboanga del Norte Chapter (August 25, 2016) and the Misamis Oriental Chapter (September 8, 20160. I have also discussed these in other MCLE lectures given by other providers, the most recent being last October 7, 2016 for the ACLEx MCLE seminars at Hotel Cielito, Makati.

Dr. Atty. Noel G. Ramiscal at IBP Cagayan de Oro, September 7, 2016

Dr. Atty. Noel G. Ramiscal at IBP Cagayan de Oro, September 7, 2016


For this article, I desire to clarify certain matters.

First, the Supreme Court’s Rules of Electronic Evidence has defined “Ephemeral electronic communication” as pertaining to “telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained” (Rule 2, Sec.1. k).

Rule 11, SEC. 2. Provided:

Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.

The preceding section is:

SECTION 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.
The pertinent portion of Rule 5 on “AUTHENTICATION OF ELECTRONIC DOCUMENTS” provided that:

SEC. 2. Manner of authentication. – Before any private electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

Construing all the relevant provisions of the Rules of E-Evidence on ephemeral evidence, the rules mandate that these types of communication “be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted, provided they are authenticated.

Eversince I started my cyberlaw advocacies in 2007 when I came back from Australia, and started giving Mandatory Continuing Legal Education (MCLE) lectures on electronic evidence in 2008, I had always maintained that the classification and mode of authentication of “telephone conversations, text messages, chatroom sessions, streaming audio, streaming video,” and other akin electronic forms of communication as “ephemeral” simply because their “evidence … is not recorded or retained” under the Philippine Rules of E-Evidence are technologically and legally unsound. In my lectures, I set out the legal reasons and technological facts that disprove both the classification and the mode of authentication under these Rules.

Dr. Atty. Noel G. Ramiscal at IBP Dipolog, August 25, 2016

Dr. Atty. Noel G. Ramiscal at IBP Dipolog, August 25, 2016


For the purpose of this article, the mere fact that the mobile phone, or its SD card, of a murdered victim contained the text messages and the recorded messages between the victim and the alleged assailant immediately disproves the characterization of these messages as “ephemeral” under the said rules. The records of these incriminating pieces of evidence are clearly captured in the mobile phone and in the SD card that the phone contains. Both the mobile phone and SD card are, by their very nature, recording devices.
Dr. Atty. Noel G. Ramiscal at his MCLE lecture fo ACLEx, October 7, 2016

Dr. Atty. Noel G. Ramiscal at his MCLE lecture fo ACLEx, October 7, 2016


In fact, the Supreme Court itself, in a slew of administrative decisions involving corrupt court officials which the court dismissed, relied on text messages that were saved in the mobile phones of the parties involved. The Supreme Court in these administrative cases did not examine if the messages were encrypted or had “digital signatures” or discussed any security procedure. The court merely relied on confirming the number of the mobile phones as the number of the parties involved, via the testimonies of the parties, and writing down the text messages retrieved in the mobile phones. This is much the procedure that is being followed now in the investigation of current Senator Leila De Lima, with respect to her mobile phone numbers. All of these pieces of evidence are contained in the mobile phone, and confirmed by other sources. So it is technologically wrong to state that text and telephone conversations that transpired between the victim and the purported assailant are “ephemeral communications” because their “evidence are not recorded or retained”. And I just desire to state that even if the mobile phone user had deleted a text message in the inbox, that message could still be retrieved from the service provider, and by a very good mobile phone forensic expert.
The over 120 strong IBP Zamboanga del Norte lawyers tht attended Dr. Ramiscal's lecture, August 26, 2016

The over 120 strong IBP Zamboanga del Norte lawyers tht attended Dr. Ramiscal’s lecture, August 26, 2016


With respect to the mode of authentication that the Rules require, one cannot expect the alleged killer to own up to the recorded text messages and telephone conversations. The only other party to the incident is the murdered victim who cannot testify because of death. This is one of the absurd consequences that the current Rules foster with its insistence on “the testimony of a person who was a party to the same or has personal knowledge thereof”, which I point out every now and then in my MCLE lectures.
Some of the over 270 strong IBP Misamis Oriental, Cagayan de Oro lawyers, 9-7-2016

Some of the over 270 strong IBP Misamis Oriental, Cagayan de Oro lawyers, 9-7-2016

ibp-misamis-oriental-cagayan-de-oro-lawyers-9-7-2016
Now, in the absence of any competent witness, under the current Rules “other competent evidence may be admitted”. So the issue of the Anti-Wire Tapping Act kicks in. Is the mobile phone or the electronic device that contains the record of the text messages and telephone messages “competent evidence” despite the existence of the Anti-Wire Tapping Act?
I have expressed, time and time again, the opinion on several occasions where this type of query arose, that the evidence from these e-devices are “competent evidence”.

The Anti-Wire Tapping Law prohibits any party to any private communication who does not secure the consent of all the parties to such communication to “to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described” (Sec. 1). To obviate any criminal prosecution under this law, the party seeking to record the private communication must be a peace officer, or at least seek the assistance of a peace officer who must apply for a court order which will be issued upon written application and the examination under oath or affirmation of the applicant peace officer and the witnesses he may produce, by a Judge, upon showing to the Judge certain circumstances pertaining to certain crimes; “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.” (Sec. 3) The written court order shall also specify: “(1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization.” (Sec. 3).

As is, the Anti-Wire Tapping Act that was approved and passed over fifty years ago (June 19, 1965) is an antiquated law. This law was clearly intended to prevent the unreasonable intrusions by the government into the legally protected private spheres of individual citizens.

The provisions of this law, if applied strictly in this day and age of the CCTVs, smartphones, Google Glass, fitbits, smartdust, would make all private legitimate recording activities without any court order applied for by a “peace officer” illegal in the Philippines. This law has outlived its usefulness and its purpose and any blind adherence to its provisions would cause untold injustice.

Dr. Atty. Noel G. Ramiscal with Judge Philip Aguinaldo and gorgeous lawyers of IBP Cagayan De Oro, 9-8-2016

Dr. Atty. Noel G. Ramiscal with Judge Philip Aguinaldo and gorgeous lawyers of IBP Cagayan De Oro, 9-8-2016


The contemporary reality in our extremely wired and connected society is that electronic devices are meant to record information. They are set to capture all forms of e-data (i.e., video, audio, text and other bits of streamed information). This is the reason why police officers search and seize e-devices found on the persons of accused and copy or mirror the content of these e-devices to be used against the accused.

If these e-devices are confiscated from the accused, why should the e-devices found on the persons of murdered victims (which contain evidence of the crime perpetrated against them) be excluded simply because these victims, prior to their deaths did not secure the consent of their assailants, or did not get a peace officer to secure a court order, that will allow them to record the evidence of their death? Preposterous!

One of Cagayan De Oro's finest lawyers fielding a question during the Q&A portion of Dr. Ramiscal's lecture, 9-8-2016

One of Cagayan De Oro’s finest lawyers fielding a question during the Q&A portion of Dr. Ramiscal’s lecture, 9-8-2016


In my September 8, 2016 MCLE lecture for the Integrated Bar of the Philippines, Misamis Oriental Chapter, held at the Grand Caprice Restaurant Hall, Cagayan De Oro, the former Congressman, now private practitioner Atty. Damasing raised the question if the text messages contained in the mobile phone of a deceased victim can be introduced as res gestae evidence. I told him yes.

Dr. Noel G. Ramiscal with some of the fabulous IBP Cagayan De Oro lawyers, 9-8-2016

Dr. Atty. Noel G. Ramiscal with former Congressman Damasing, MCLE Cagayan De Oro, September 8, 2016

Dr. Atty. Noel G. Ramiscal with former Congressman Damasing, MCLE Cagayan De Oro, September 8, 2016

Our current Rules of Court allow the admission of statements given by a deceased person under certain circumstances. If the text messages and recorded phone conversations by the deceased were made under the consciousness of an impending death, such may be received in any case wherein his/her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death (Rule 130, 6, Sec 37). The statements made by the deceased prior to his/her death while the startling occurrence (the killing) is taking place or immediately prior thereto with respect to the circumstances of the killing, may be given in evidence as part of the res gestae. (Rule 130, 6, Sec 42). If the mobile phone or any piece of e-device was found on the person of the accused which contain evidence that point to his/her killer, that could be admitted under these two provisions. To do otherwise would deny the cause of Truth and Justice.

The Anti-Wire Tapping law is in the process of being revised or amended. I have not yet seen its revised draft. Definitely, this will have privacy and security implications. But one thing that I would like to see is for the amended draft to reflect the concerns I have raised here. It is also high time that the Philippine Supreme Court must revise the Rules of Electronic Evidence which it had left untouched since 2002!

Dr. Atty. Noel G. Ramiscal with Dean Jose Manuel Diokno of DLSU, IBP Dipolog, 8-25-2016

Dr. Atty. Noel G. Ramiscal with Dean Jose Manuel Diokno of DLSU, IBP Dipolog, 8-25-2016

Dr. Atty. Noel G. Ramiscal with Atty. Gigi dela Cruz, IBP Dipolog, 8-25-2016

Dr. Atty. Noel G. Ramiscal with Atty. Gigi dela Cruz, IBP Dipolog, 8-25-2016

Moreover, as my last point, there is now a trend that I discuss in my MCLE lectures on Legal Ethics for Cyberlawyers, that the recording of certain incidents like the commission of a crime and even police brutality, without the consent of the police authorities has been seen by the court as part of the freedom of expression of the recorder, thus negating the any claims or defense based on Anti-Wire Tapping Laws.

I would like to thank all of my brothers and sisters in Law and in Life in all of the IBP Chapters I have lectured on these matters for this year and for the years past, as well as the other opportunities given to me by different providers, in reaching out to lawyers, legal professionals, students, educators, entrepreneurs, security and privacy professionals, to spread my own brand of Law and IT evangelism. Their faith and support for my cyberlaw advocacies have truly inspired me to become a better advocate and a better lawyer.

Dr. Atty. Noel G. Ramiscal with Atty. Arevalo and some of the gorgeous IBP lawyers and officers enjoying the marang fruit, September 8, 2016

Dr. Atty. Noel G. Ramiscal with Atty. Arevalo and some of the gorgeous IBP lawyers and officers enjoying the marang fruit, September 8, 2016

One of the best things about doing lecture tours is meeting and getting to hear nuggets of legal wisdom from other MCLE lecturers and well known practitioners. Kudos to these brilliant lights in the legal profession: Dean Jose Manuel Diokno of DLSU Law School, IBP National Counsel, Atty. Rosalie de la Cruz, UP College of Law Foundation’s Atty. Armand Arevalo, Judge Philip Aguinaldo, Judge Jose Vibandor, former Judge, now private practitioner, Atty. Marjorie Uyengco-Nolasco, and my former UP Philosophy professor, Atty. Eddie Valdez.Dr. Ramiscal with Atty. Arevalo, Judge Vibandor, Atty. Uyengco-Nolasco and Atty. Eddie Valdez, 9-9-2016

LAWBYTES 116: HOW SMART ELECTRONIC METER GRIDS IN THE INTERNET OF THINGS AND DRONES CAN POSE DANGERS TO THE PRIVACY AND SECURITY OF CONSUMERS (Copyright by Dr. Atty. Noel G. Ramiscal)

In my Mandatory Continuing Legal Education (MCLE) lectures on the Data Privacy Law, I always strive to present novel issues on data privacy that have not been tackled in any MCLE lecture before by any other lecturer, and connect them with the concerns of the audience that I am giving my presentations. When I was invited by the UP Administration of Justice to do a special lecture for the MERALCO on data privacy (June 24, 2016), MERALCOMCLELECTURE I took that opportunity to scrutinize its smart grid meter system which is planned to be rolled out nationally by 2017 and discuss with their legal, corporate and IT officials some of the legal concerns relative to this, and how its connection with the Internet of Things can impact on the security and privacy rights of their consumers. I shared these concerns in my Data Privacy lectures for the Integrated Bar of the Philippines (IBP) Chapters in Misamis Oriental Chapter, Grand Caprice Restaurant Hall, Cagayan De Oro, last September 7, 2016, and the Zamboanga del Norte Chapter, at the Dipolog Commercial Center, on August 25, 2016, for the Department of Foreign Affairs (DFA) lawyers and foreign service officers, at the DFA building, in Roxas Boulevard, Pasay, last August 30, 2016, and in the ConsumerNet Region 10 meeting at the Department of Trade and Industry Building, Cagayan De Oro, last September 9, 2016.

Dr. Atty. Noel G. Ramiscal lecturing to the IBP Misamis Oriental lawyers, September 8, 2016

Dr. Atty. Noel G. Ramiscal lecturing to the IBP Misamis Oriental lawyers, September 8, 2016

Praises have been sung in favour of establishing smart grid systems. Olivier Monnier stated that “building a smart grid means securing the future of energy supply for everyone in a rapidly growing population with a limited power production capacity. A smart grid reduces the losses, increases efficiency, optimizes the energy demand distribution[,] and also makes large-scale renewable energy such as solar and wind deployments a reality. With an aging infrastructure, the [current power] grid is facing severe challenges including recurring black outs in major industrialized cities around the globe”.

In the dawn of the Internet of Things (IoT), smart e-devices in the homes should be able to transmit and receive information to and from the smart meters and utility providers. The eventual vision, for the smart cities of the future is one where all these IoT devices, smart meters, utility providers of gas, water, electricity, and providers of other services, including government agencies are linked together, in order to give effective and efficient services to their consumers/clients.

Dr. Atty. Noel G. Ramiscal at the ConsumerNet lecture, DTI Region 10, September 9, 2016

Dr. Atty. Noel G. Ramiscal at the ConsumerNet lecture, DTI Region 10, September 9, 2016

I understand that MERALCO has partnered with GE (with its electric meters and system integration services) and Trilliant which has a Smart Grid Communications Platform, that enables advanced intelligence in the prepaid metering system, and will serve as a foundational platform for future advanced smart grid capabilities. MERALCO will also have a smart grid incubator called PowerTech that will be launched early next year (2017). MERALCO also had acquired 3 drones to inspect areas on the grid that are geographically hard to reach. This trend appears to be unstoppable. Electric utilities in other parts of the Philippines (e.g. CEPALCO) have placed the establishment of a smart grid system as a target for their business models.

In my lectures on IoT and data privacy, I show the audiences how these devices can lead to the erosion of the privacy of the personal information of users/consumers.

Ann Cavoukian’s research on the smart grid have shown us if: the homeowner tends to arrive home shortly after the bars close; the individual is a restless sleeper and is sleep deprived; the occupant leaves late for work; the homeowner often leaves appliances on while at work; the occupant rarely washes his/her clothes; the person leaves their children home alone; the occupant exercises infrequently.

One interesting computer study conducted by Miro et al revealed that by examining just the electronic signals emanating from a person’s house can reveal what the occupants were watching on TV with a 96% degree of accuracy.

It is for these reasons, and so much more, that the European Data Protection Supervisor in its Opinion on the Commission Recommendation on Preparations for the Roll-Out of Smart Metering Systems, warned that such grids could lead to “massive collection of personal data” without much protection for the consumers.

The National Institute of Standards and Technology also warned that:

Personal energy consumption data . . . may reveal lifestyle information that could be of value to many entities, including vendors of a wide range of products and services. Vendors may purchase attribute lists for targeted sales and marketing campaigns that may not be welcomed . . . . Such profiling could extend to . . . employment selection, rental applications, and other situations that may not be welcomed by those targets.

In the hands of a good cybercriminal, these information can be used to the detriment of the smart grid user. In view of these, I asked the MERALCO audience last June 24, 2016, these questions:MERALCOMCLE1

DOES MERALCO HAVE A CLEAR EXPRESS WRITTEN POLICY ON THE DEPLOYMENT OF THE SMART GRID TO ITS CUSTOMERS THAT PERTAIN TO THEIR PRIVACY RIGHTS?
IS THIS POLICY WELL KNOWN AND EXPLAINED TO THEM?
IS THERE AN OPT-OUT OR OPT-IN CHOICE FOR MERALCO CUSTOMERS?

The response I gathered from the audience was that there was no policy set in place, but MERALCO is planning to give their consumers opt-in or opt-out choices.

Drones are also a particularly invasive form of surveillance technology. They collect all forms of data indiscriminately. Apart from the privacy issues they pose, there have been well known incidents where these drones have figured in traffic accidents, collisions and targets of destruction.

I also asked if MERALCO has a privacy policy on the utilization of drones, and the response I got was in the negative.

In order for MERALCO to avoid violating the data privacy rights of their consumers, I advised them, not only to have a privacy policy for the smart grid and the use of drones, but that they must also conduct a privacy impact assessment (PIA) for these two matters, ideally prior to their utilization, in order to gain the support of all the stakeholders. They must implement and enforce the PIAs and document the implementation. This holds true for any organization or entity that is planning to implement any project that would have significant privacy and security repercussions.

Under R.A. 10173 or the Data Privacy Law, all personal information controllers (“PICs”) like the MERALCO who process the personal information of data subjects are obligated to formulate privacy codes/policies for the approval of the National Privacy Commission (NPC). Recently, the NPC came out with an issuance requiring the submission of PIAs as well. It is not clear from the law what the nature and status of these policies are. Would having them be enough to save PICs like MERALCO from liability for future data privacy violations?

Dr. Atty. Noel G. Ramiscal at the Department of Foreign Affairs, August 30, 2016

Dr. Atty. Noel G. Ramiscal at the Department of Foreign Affairs, August 30, 2016

The matter becomes complicated by ascertaining specifically what types of personal data information from the customer need to have their prior consent before they are processed by the smart meter provider. The Voluntary Code of Conduct by the US DOE and the Federal Smart Grid Task Force distinguished between personal information that serves a distinct purpose. Personal information for which no customer consent is necessary would be those relegated to a primary purpose, or one that is “reasonably expected by the customer,” such as using the aggregate data for the electric utility to set prices. Personal information devoted to a secondary purpose which needs prior consent from the customer is one that is “materially different from the primary purpose and is not reasonably expected by the customer relative to the transactions or ongoing services provided to the customer.” This includes providing the information to third parties, who can request access to customer data from service providers for secondary purposes.” In the US, there is no consistent law or policy adopted by states concerning the installation of smart grids in consumers’ homes, the availability of the opt out choice for the consumer, and the ability of the smart meter provider to share the e-data generated from the use of the smart grid with third parties.

Considering that in the Philippines, it is the Energy Regulatory Commission (ERC) that has primary jurisdiction over electric utilities like MERALCO, data privacy considerations must also be addressed by the ERC concurrently or with guidance from the NPC.

Another important agency in this matter is the SEC which should require all PICs that are registered with them to submit as part of the legal requirements for keeping their certificates of registration valid, certified copies of their privacy codes and PIAs.

One thing that must be done though, by any PIC that plans to roll out a massive project like the smart grid, is that it must be as transparent and forthcoming with correct and relevant information in the conducting of its PIA consultations with stakeholders, and in its website, and should engage in real time and digital education campaigns as well.

Thank you to the UP IAJ, all of its wonderful staff, all the fabulous and supportive IBP officers and members of the Misamis Oriental Chapter and the Zamboanga del Norte Chapter, the accommodating DFA officials and lawyers, the attentive ConsumerNet members, and of course, the gorgeous MERALCO lawyers and corporate officials, who gave me their time and attention, and the opportunity to share my privacy advocacies.

Lawbytes 115: Dr. Ramiscal’s Cyberlaw: The Extra-Territorial Prosecution of Cyber Privacy Predators and Cybercriminals, Copyright by Dr. Atty. Noel G. Ramiscal

August 15, 2016 was an extra special day for my advocacies on several levels. It was the day when I got to debut a very new and hot topic for the UP IAJ [through the urging of the wonderful Ms. Mabel Perez] in their Mandatory Continuing Legal Education (MCLE) seminar series. This lecture, which I entitled “Trends and Issues in the Prosecution of Cyber Privacy Predators and Personal Information Thieves” is in all probability, the first time that would be tackled by any MCLE lecturer in the Philippines. The National Privacy Commission (NPC) was just established last March 8, 2016, despite the fact that the law (R.A. 10173) creating it was passed in 2012, and up to now, the lmplementing Rules and Regulations (I.R.R.) that the NPC was tasked to promulgate is still in the process of being finalized.

Dr. Atty. Noel G. Ramiscal, at his August 15, 2016 MCLE lecture for UP IAJ

Dr. Atty. Noel G. Ramiscal, at his August 15, 2016 MCLE lecture for UP IAJ

The proposed I.R.R. seeks to create a Data Security and Compliance Office, a Legal and Enforcement Office and a Privacy Policy Office which are all crucial to the NPC, because as a quasi-judicial body, it would be deciding on data privacy violations arising from the different and new cybercrimes concerning data processing that R.A. 10173 established. Since the NPC is swamped with many issues concerning its existence and operations, I figured my lecture can help clarify some of these issues and point to some trends, standards or guidelines that these new offices need to be apprised of to do their jobs effectively.

I went through many essential concepts that are unique to the Data Privacy law, for a very attentive and receptive audience (none of whom slept during my lecture): from the right of informational privacy that was developed in Europe after the Second World War and the right to informational self-determination which was first recognized as a constitutionally guaranteed right in 1983 by the German Constitutional Court; to the explication of the right to be forgotten, and the relevance of our very own writ of habeas data in enforcing this right; to the right of portability and how that right had been enforced in some jurisdictions; to the right of transmissibility and my own advocacy for the establishment of a Digital Inheritance Law in the Philippines which would give access to the heirs of a decedent, and the police and prosecutors to e-data, particularly emails and social media e-data, that can give a clue to any foul play or crime that was perpetrated on the decedent; to the different types of identity theft, impersonation and misappropriation of personal information; to the role of encryption in securing our privacy; to the electronic means of stealing personal information like spamming and ransomware; to the types of electronic evidence that prosecutors should recognize and present in court as incriminating evidence; and everything in between.

Dr. Atty. Noel G. Ramiscal with Former Philippine Vice President, Atty. Jejomar C. Binay and a group of brilliant Ibanag lawyers who attended his MCLE LECTURE, AUGUST 15 2016

Dr. Atty. Noel G. Ramiscal with Former Philippine Vice President, Atty. Jejomar C. Binay and a group of brilliant Ibanag lawyers who attended his MCLE LECTURE, AUGUST 15 2016

One of the most important concepts I discussed at some length is the extra-territorial application of R.A. 10173, as well as the Cybercrime Prevention Act (R.A. 10175). Prior to these laws, law students and lawyers were only taught criminal laws are primarily territorial in application, and the only way that courts can have jurisdiction over the person of the accused would be through the latter’s arrest, voluntary surrender or arraignment appearance.

The two laws changed all previous conceptions of the territorial application of Philippine criminal laws by broadening their scope. R.A. 10175 made it easier to file any cybercrime case in a Philippine cybercrime court, even if the offender is not in the Philippines so long as any of these jurisdictional requirements are met: if the computer system which was used to commit the crime is situated wholly or partially in the Philippines; or when the offender is a Philippine citizen; or when any of the elements were committed in the Philippines; or when the offended party, natural or juridical, was in the Philippines when the offense was committed and experienced damage here.

In a similar manner, R.A. 10173 and its proposed I.R.R. made filing a cybercrime case for any unlawful data processing of the personal information of a data subject apparently simpler, by requiring the fulfilment of any of these conditions: the data wrongfully processed belongs to a Philippine citizen or resident; or the data processor [personal information controller or personal information processor] has a Philippine link. The linkage can be through the fact that the data processor processes personal information in the Philippines; or carries business in the Philippines; or uses equipment located in the country, or maintains an office, branch or agency in the Philippines for processing of personal data; or has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information. If the data processor processes the personal information outside the Philippines, it could still be held liable as long as the information is about Philippine citizens or residents. Other links include the data processor having entered into a contract in the Philippines; or if it’s not incorporated in the Philippines, it somehow “has central management and control in the country”.

Some lawyers who attended Dr. Noel G. Ramiscal's MCLE lecture PROSECUTING CYBERPRIVACY PREDATORS, AUGUST 15, 2016

Some lawyers who attended Dr. Noel G. Ramiscal’s MCLE lecture PROSECUTING CYBERPRIVACY PREDATORS, AUGUST 15, 2016

While these jurisdictional “links” or anchors that Philippine prosecutors can now use to go after cybercriminals in other countries legally exist, I gave a cautionary note in their enforcement. In this “cloud” era, incriminating or offending data can easily be transferred to different servers in different countries and the challenge for the prosecution is how to have access to these data, present them in a Philippine court and bring the criminals to justice. In the controversial and recently decided case involving the US government against Microsoft, Microsoft refused to honor and moved for the quashal of the search warrant issued by District Judge Francis of the Southern District Court of New York that would have given the US DOJ and FBI access to the electronically stored data of a person under investigation for drug charges. Microsoft’s refusal was based on the fact that the data which belonged to one of its customers is physically stored in a server located in Dublin, Northern Ireland. The case was elevated to the Chief Judge of the same District Court of New York who affirmed the findings of Judge Francis.

The District Court’s rulings were based on the appreciation of the nature of search warrants for cloud e-data. The court noted that it is a “hybrid order” that is “executed like a subpoena in that it is served on the ISP [Internet Service Provider] in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the email account in question.” The service of the warrant and the seizure of the e-data can be completed not from the physical location of the server but from any remote location by a certified Microsoft owned computer that has lawful access to, and control of the e-data. The relevant test is not one of location, but of control. In ruling like this, the District Court overturned the territorial principle in the application of search warrants outside of the U.S.

As expected, Microsoft appealed this decision to the U.S. Court of Appeals, and the Second Circuit of the Court of Appeals came out with a decision last July 14, 2016 reversing the District Court’s ruling, and vindicating the privacy rights of the subscribers of Microsoft’s cloud services. The Court of Appeals, through Judge Susan Carney, emphatically stated that the U.S. Stored Communications Act, under which the search warrant was issued, was intended by the U.S. Congress to apply only to information that is domestically stored in the U.S., and not to e-data that are physically located outside its boundaries. To decide in the manner of the District Judge would mean the abandonment of the time honoured territoriality principle which the Court of Appeals stated “(w)e are not at liberty to do so.” The Court of Appeals, among others, reversed the decision of the District Court and remanded the case back to it with instructions the quash the search warrant, insofar as it directs Microsoft to produce customer content outside of the U.S.

Some of the lawyers who attended Dr. Ramiscal's lecture on Prosecuting Cyberprivacy Predators and ID Thieves, AUGUST 15 2016

Some of the lawyers who attended Dr. Ramiscal’s lecture on Prosecuting Cyberprivacy Predators and ID Thieves, AUGUST 15 2016

One comment that I have on this is that the US government pursued this process in order to evade the Data Privacy Law of Northern Ireland and bypass the Mutual Legal Assistance Treaty (MLAT) process it has with this country, as shortcuts. But it took them longer than they imagined. This case was brought to Judge Francis last 2013, and decided by the Court of Appeals in July 14, 2016. Had the U.S. Government gone through the MLAT process, it might have succeeded in getting the e-data it required in a shorter time, instead of having the lengthy litigation which proved futile for its cause, and the negative publication it received from the international diplomatic and business community.

Since R.A. 10175 expressly mentioned MLATs as a way of enforcing its provisions, it is my suggestion that this is a valuable tool in the arsenal of prosecutors, which they must master, in terms of going after criminals outside Philippine territory. Under the law (R.A. 10844) creating the Department of Communication Information Technology (DCIT), this agency was placed in charge of the Cybercrime Investigation and Coordination Center (CICC) which would be attached to it. The law specifically stated “(i) All powers and functions related to cybersecurity including, but not limited to the formulation of the National Cybersecurity Plan, establishment of the National Computer Emergency Response Team (CERT), and the facilitation of international cooperation on intelligence regarding cybersecurity matters are transferred to the Department”. Under this set-up, the DCIT will be engaged with the DOJ in terms of the international aspects of cybercrime. The DCIT must also be apprised with the MLATs, etc., so it can do its tasks well. The Philippines’ MLAT with the U.S. offers several measures that could effectively facilitate the production of evidence and even the forfeiture of the proceeds of the crimes committed against Philippine citizens by people or entities domiciled in the U.S. In fact, this could be used to go after the U.S. owners of the “wehaveyourdata.com” site which published the personal information of over 40 million registered Philippine voters in the massive breach of the Commission on Elections (COMELEC) e-database.

DR. RAMISCAL'S SKETCH BY ATTY. ADAN

DR. RAMISCAL’S SKETCH BY ATTY. ADAN

One of the reasons why I said this was an extra-special occasion for me is that I got to meet the former Vice President of the Philippines, who is a very distinguished lawyer himself, Atty. Jejomar C. Binay, and a host of several Ibanag lawyers who are brilliant in their own fields who attended my lecture. It was also on this event that Atty. Dan Adan, a multi-talented lawyer, presented me with his pencil sketch of my image while I was lecturing. That was truly a first!

Warmest gratitude to UP IAJ, Prof. Daway and all their truly supportive staff, and the splendid lawyers who gave me their undivided attention and genuine interest for the two hours that I spent with them! God Bless Us!

Lawbytes 114: Dr. Ramiscal’s Cyberlaw on Spamming: Why the Supreme Court’s legalization of Spamming should be overturned and what the NPC, DCIT and the NTC should do [Part 2] Copyright by Dr. Atty. Noel G. Ramiscal

In this Part, I state the reasons that I have advanced in my lectures for different stakeholders in the Philippines, why the Supreme Court’s February 11, 2014 decision legalizing spamming is erroneous and deleterious to the online, personal and even economic well being of the targeted victims of spammers.

There are different kinds of spams. Unsolicited commercial communications sent through emails are the original and popular manifestations of spam. Spams sent through instant messaging services are denominated “spims”. Spams that appear through text messaging or “push messaging” are also known as “smishes”.

In my April 11, 2016 MCLE lecture for UP IAJ, and my August 12, 2016 MCLE lecture for the Department of Foreign Affairs lawyers and foreign service officers, I gave the example of a lawyer who was suspended for spamming and eventually disbarred for other reasons in the U.S. Known as a “father” of spamming, Laurence Canter sent emails advertising his immigration practice to several thousands of individuals and Internet groups in 1994, when there was as yet no law prohibiting spamming. He was found guilty of violating legal ethical prohibitions on law advertising and misrepresentation since he was not a certified immigration law specialist. He received a one year suspension of his law license in Tennessee which he was made to serve concurrently with disbarment for his other infractions that included writing bouncing checks, neglecting cases and conversion of his clients’ funds.

Dr. Atty. Noel G. Ramiscal's DFA MCLE LECTURE, August 12 2016

Dr. Atty. Noel G. Ramiscal’s DFA MCLE LECTURE, August 12 2016

In my lectures for different Integrated Bar of the Philippines (IBP) Chapters last year and this year, and for the UP IAJ and ACLEx, on the topics of electronic evidence and in cybercrimes, I discuss how spams which contain seemingly innocent messages, can be the vehicles for malware and fraudulent e-scams. Scams can be the carriers of malicious codes or attachments that contain viruses, worms or Trojan horses.

Dr. Ramiscal at ACLEX MCLE lecture, July 22, 2016

Dr. Ramiscal at ACLEX MCLE lecture, July 22, 2016

Spam messages are sent in phishing scams. The U.S. Department of Justice defines phishing as the “creation and use of e-mails and Web sites–designed to look like e-mails and Web sites of well-known legitimate businesses, financial institutions, and government agencies–in order to deceive Internet users into disclosing their bank and financial account information or other personal data such as usernames or passwords.” In one type of phishing scam that I showed in my August 3, 2016 lecture for the Bank of Philippine Islands officers and employees, which involved a bank, the professional looking email emulated the bank’s correspondence style and logo and placed a link on a rogue bank site which, when clicked would ask the user to enter their bank password and other log-in details to steal the funds of the user. These spams used in spear phishing scams target specific groups of individuals whose email addresses have been collected or compromised and can be quite convincing.

The National Privacy Commission (NPC), the Department of Communication Information Technology and the National Telecommunications Commission (NTC) must seriously consider this matter.

From the perspective of the privacy advocate, spams are tangible manifestations of wrongful use of personal e-data, e.g., names, email addresses, and bank memberships that are harvested by search engines, crawlers, trawlers of ISPs, online social networks, and electronic databases, which are used and maintained by e-data aggregators, which sell these data, or by blackhats that steal these data to launch their attacks.

Spams are visible expression of manipulation of personal e-data since they are targeted to predefined unsuspecting recipients whose personal e-data had been processed, without their consent. Furthermore, spamming is proof that the personal information of a data subject had been breached without the data subject’s consent.

In the hands of botmasters, who have command of thousands of compromised computers called zombies, spams sent by zombie PCs can be the means of unleashing a distributed denial of service (DDoS) attacks on specific targets for the right price. When this happens, a targeted account or user would not be able to read or even access his/her emails, since the spams can be so voluminous as to clog the target’s email system. In this case, the right to read emails, even unsolicited ones, which the Supreme Court upheld to be a constitutional right, would be denied to the target, due, ironically, to the unsolicited spams!

Dr. Atty. Ramiscal in one of his MCLE lectures for the IBP Leyte

Dr. Atty. Ramiscal in one of his MCLE lectures for the IBP Leyte

The Philippine Supreme Court’s position on this matter is truly contrary to the position in other jurisdictions. For instance, the drafters of the Cybercrime Convention did not specifically nor expressly named spamming as a cybercrime. But they viewed it as a form of illegal interference that could fall under Article 5 of the Convention on “System Interference”. Spamming is considered a form of “computer sabotage” where the sending of data to a particular system in such a form, size or frequency is such that it has a significant detrimental effect on the ability of the owner or operator to use the system, or to communicate with other systems. U.S. courts have ruled that sending spam in quantities that place unreasonable burdens on e-mail networks constitutes a type of DDoS attack [See for example, CompuServe. Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1022 (S.D. Ohio 1997); and White Buffalo Ventures, LLC v. Univ. of Texas at Austin, 420 F.3d 366, 377 (5th Cir. 2005).

The invalidated Section 4(c)(3) of Republic Act 10175 contained conditions against spamming which are tailored to prevent the sending of harmful malicious ads that can bring viruses, in which the addressee has no option to opt-out once they open the email. The Supreme Court should have analyzed those conditions first before concluding erroneously that all unsolicited ads are legitimate forms of expression.

From the foregoing, the blanket characterization by the SC that unsolicited spams are legitimate manifestations of the constitutional freedom of expression is legally indefensible, void of technical validity and lack jurisprudential support from other jurisdictions. Spams that harm computing systems by clogging access to email accounts, or used as the means to “phish” for personal information to the detriment of the recipient, or as the vehicles for computer viruses and malware are not, and should not be considered legitimate forms of constitutionally protected speech.

In what is probably the height of cruel irony, any spammer now can have a cause of action against Philippine entities that prohibit spamming, and any spammer that uses spam to commit DDos attacks, or phishing scams, or ID theft, can justify the legality of their actions and escape criminal liability because of the Philippine Supreme Court decision.

Dr. Atty. Noel G. Ramiscal with DFA Office of Legal Affairs, Exec. Dir. Atty. Leo Ausan Jr.

Dr. Atty. Noel G. Ramiscal with DFA Office of Legal Affairs, Exec. Dir. Atty. Leo Ausan Jr.

The newly constituted NPC and the DCIT, and the NTC, with the assistance of all concerned citizens should seek for a declaratory relief, or any other form of relevant relief, to overturn this invalid decision that could had, or could still wreak disastrous mischief and havoc on the personal information of millions of connected Philippine “data subjects”.

Dr. Atty. Noel G. Ramiscal at the DFA, August 12 2016 with Atty Arevalo and AttyFSO Donna F. Gatmaytan

Dr. Atty. Noel G. Ramiscal at the DFA, August 12 2016 with Atty Arevalo and AttyFSO Donna F. Gatmaytan

As always, my deep heartfelt gratitude to all the MCLE providers, organizers, lawyers, universities, students, IT professionals, other professional organizations and stakeholders who have given me the opportunity and the platform to spread the gospel and my advocacies on Cyber Law to the different parts of the Philippines!

Some BPI employees who attended Dr. Ramiscal's AUGUST 3 2016 lecture

Some BPI employees who attended Dr. Ramiscal’s AUGUST 3 2016 lecture

Some BPI employees who attended Dr. Ramiscal's AUGUST 3 2016 lecture

Some BPI employees who attended Dr. Ramiscal’s AUGUST 3 2016 lecture

Special acknowledgment to: the BPI LEADr, BPI University, Attys. Lito Viniegra and Paul Ysmael, Esq. Dennis Soto, and Mr. Roberto Mercado and all the wonderful BPI officials and employees; the UP IAJ, Prof. Patricia Daway, Atty. Armand Arevalo, Ms. Mabel Perez, Ms. Evelyn Cuasto, Ms. Zen Antonio, and all the amazing staff; The ACLEx and its President, Mr. Roberto Borromeo, the gorgeous CEU School of Law Associate Dean, Atty.Ritalinda Jimeno, and Mr. Alex Canata; The IBP National, IBP Bulacan, IBP CALMANA, IBP Laguna, IBP Leyte, IBP Negros Oriental, IBP Lanao del Norte, IBP Batangas, IBP Misamis Oriental, IBP Nueva Vizcaya, IBP Nueva Ecija, IBP IBP Cavite, IBP PPLM, and all their splendid officers and helpful staff; The Globe Telecommunications officers and lawyers; The Department of Foreign Affairs lawyers and Foreign Service Officers, particularly their Executive Director for the Office of Legal Affairs, Atty. Leo Tito Ausan Jr., and my truly fabulous UST and UP schoolmate, Atty. Donna Celeste Feliciano Gatmaytan! Mabbalo! Dios ti Agnina! Daghang Salamat! Salamalaikum!

Lawbyte 112: DR. RAMISCAL’S PHILIPPINE CYBERLAW: ENCRYPTION OR CRYPTOGRAPHY AS A HUMAN RIGHTS AND PRIVACY TOOL AGAINST GOVERNMENT ABUSES AND CYBERPRIVACY PREDATORS, WHAT THE NATIONAL COMMISSION ON PRIVACY, DTI AND DCIT MUST DO, AND IBP BULACAN’S HUMANITARIAN OUTREACH PROGRAM

Over the last five years and since the start of this year, I have informed all the people who have attended and cared enough to listen to my lectures and guest stints in different fora about the importance of cryptography, which is all about the science and art of encrypting messages, documents and images, in mathematical algorithms, and in some cases with biological, DNA, and nanomolecular ciphers, to retain the secrecy of the encrypted data, and prevent unauthorized eyes (of embittered spouses, disgruntled employees, curious hackers, nefarious crackers, unfriendly and friendly governments) from discovering the content, which could mean the saving or wrecking of countless lives, the toppling of dictatorships and the crashing of economies.

The Private Launching of my book on Cryptology

The discussion of the science and law of cryptography is central to my most recent book “Cryptology: The Law and Science of Electronic Secrets and Codes”, which I am glad to say, finally saw the light of a launching, albeit privately, last June 18, 2016 at the Makati Shangrila, during the General Assembly of the Philippine Australian Alumni Association (PA3i) members from all parts of the Philippines. In this private launching, I apprised the PA3i members of the essential hows and whys of cryptography and its impact on their lives. Since the theme of the event pertains to the fundamental bonds of friendships and links between the Philippines and Australia, I stated that my cryptology book could not have been written by me, without the influence of Australia on me, personally and professionally.

The private launching of Dr. Ramiscal's CRYPTOLOGY book during the PA31General Assembly at MAKATI SHANGRILA, June 18, 2016

The private launching of Dr. Ramiscal’s CRYPTOLOGY book during the PA31General Assembly at MAKATI SHANGRILA, June 18, 2016

I was introduced to cryptology via my “Law and Internet” Master class way back in 1999 where the first word I deciphered using the PGP software was “apple”. The ramifications of this technology and the multidisciplinary fields that gave rise to it shook me to the core! I remember staying up way into the morning and staring at the Brisbane river as the sun rises, thinking that Einstein and Heisenberg were on some kind of intellectual drug for them to come up with otherworldly theories that have seen some awesome demonstrations as the years have gone by. It was in Australia where I felt real genuine freedom in academic research and inquiry, and I am forever grateful to the University of Queensland and its law faculty for supporting me in my Master of Laws (Advanced) and my Ph.D in law studies and research. Australia is one of those countries that have a sophisticated understanding of the grasp and reach of cryptology. As part of my recommendations in my book, I proposed that the Philippine government should look into the Australasian Information Security Evaluation Program (AISEP) used in Australia that reviews, among others, the source codes of cryptographic products. The Defense Signals Directorate (DSD) conducts a DSD Cryptographic Evaluation (DCE) “to analyse a product to determine whether the security architecture and cryptographic algorithms used have been implemented correctly and are appropriately strong for the product’s intended use by the recommending government agency.” This efficient and effective program is light years apart from the way that the COMELEC had handled source code reviews for the Automated Election Systems used in the 2010, 2013 and 2016 elections.
Dr. Atty. Noel G. Ramiscal with Her Excellency, the Australian Ambassador Amanda Gorely, June 18, 2016

Dr. Atty. Noel G. Ramiscal with Her Excellency, the Australian Ambassador Amanda Gorely, June 18, 2016


My great appreciation to Her Excellency, the indefatigable and inimitable Australian Ambassador Amanda Gorely!
Heartiest thanks are in order to the brilliant and generous officers of PA3i, most especially to Ms. Vivian Valdez, Mr. Arvin Yana, Col. Ariel Querubin, Atty. Teresita Tuazon, Dr. Jean Loyola, Mr. Vic Badoy, Ms. Abee Generao and Mr. Ramon Santos, and of course to the fabulous PA3i members, some of whom are Drs. Rey Ramos, Fe Hidalgo, Wendell Capili and Emanuel Florido, Attys. Ma. Nena German and John Titus Vistal, Messrs. Joey Baril, Jay Juan, Edson Lopez, Greg Quimio, Kitz Arellano, Jong Belano, Ruel Limbo, the spouses Freddie and Norma Fajardo, Ms. Neri Torreta, and Ms. Dane Zuyco (apologies to the very many whose names I cannot remember). Congratulations as well to all 2016 Australian Alumni Awards Nominees and Winners, some of whom I had been privileged to meet, including, Ms. Loda Grace Dulla, Mr. Arsenio Ella and Chief Inspector Kimberly Molitas! They all make us proud!

How Cryptography has become a Crucial Liberation Technology

I expounded on the extent of cryptography and its significance in the digital global world in my MCLE lectures for the Philippine Deposit Insurance Corporation (January 28, 2016), the Arellano Law Foundation (February 27, 2016), the IBP Leyte (April 29, 2016), the IBP Negros Oriental (May 17, 2016), UP IAJ (July 2, 2016), the IBP Lanao del Norte (July 12, 2016), the ACLEx (July 22, 2016) and the most recent being the IBP Bulacan Chapter (July 23, 2016).

Dr. Ramiscal's MCLE Lecture on Cryptology for the ALF, MIDAS HOTEL, FEB 27 2016

Dr. Ramiscal’s MCLE Lecture on Cryptology for the ALF, MIDAS HOTEL, FEB 27 2016

I strove to explain the mathematical and scientific bases for the cryptographic products that are being sold or developed by research institutions in different parts of the world, and how the multidisciplinary fields and endeavors that nurture cryptology are being threatened by the stringent export and licensing restrictions of countries implementing the Wassenaar Arrangement, which was geared at stopping the flow of cryptographic products to states that have known terrorist elements.
Dr. Atty. Noel G. Ramiscal's MCLE lecture at PDIC last JANUARY 28, 2016

Dr. Atty. Noel G. Ramiscal’s MCLE lecture at PDIC last JANUARY 28, 2016

To be candid, this is easy to understand. There are infamous criminals and criminal activity that rely on cryptology to assure their continued operations. Cryptographic products have been implicated in drug trafficking, human trafficking, arms trafficking, online child pornography, murders for hire, and a slew of criminal conduct. It was said that the late Osama bin Laden used to send his extermination orders via encrypted text messages.

But, cryptography is also a beacon of hope, trust, and survival. As a tool for securing basic human rights to life, liberty, security and privacy, I highlight the fact that many international human rights organizations including Amnesty International rely on strong cryptographic software to secure their information. The Onion Router (TOR) system which relies on a system of virtual encrypted channels operated by exit node operators has been considered a crucial “liberation” technology. This allows a tool for the masses to reveal government corruption, oppression, tortures and killings motivated by politics, religion, money and greed, and escape the censorship and wrath of these governments. In the memorable Arab Spring, I tell and show the audiences of the tragic story of Neda Agha Soltan, a woman targeted by a Basilij sniper, all because she loved to sing passionately, about her life in Iran, and how the video of her murder and the picture of her dead face with the disjointed eyes, managed to get worldwide circulation, through the TOR system. That was one of the crucial moments when millions of people all over the globe became overnight activists and Neda Agha Soltan became an iconic image of the oppressed and silenced victims of tyranny and intolerance everywhere.

Dr. Ramiscal's CRYPTOLOGY lecture for UPIAJ, July 2, 2016

Dr. Ramiscal’s CRYPTOLOGY lecture for UPIAJ, July 2, 2016


Finally, cryptography is a first line of defense against all forms of unwarranted and illegal access or intrusions into the personal, sensitive information of natural and juridical persons. It is also a technology that is at the core of many personal and business transactions that involve currency. As I point out in all my lectures, every time anyone types their PIN or access codes into an ATM or secure website, cryptographic techniques are employed. I apprised the lawyers who attended my IBP Bulacan lectures last July 23, 2016, that cryptography is also at the heart of the Europay Mastercard Visa (EMV) chip cards that the Bangko Sentral ng Pilipinas have mandated all Philippine banks to roll out by January 2017! I also mentioned this fact in my July 22, 2016 lecture for the ACLEx. Apparently, this fact is not well known among the lawyers in these two fora, because only one lawyer professed to know about this.
Dr. Noel G. Ramiscal donating a copy of his Cryptology book to the CEU Law Library thru ACLEX's Mr. Canata

Dr. Noel G. Ramiscal donating a copy of his Cryptology book to the CEU Law Library thru ACLEX’s Mr. Canata


The importance of cryptography in all our lives is such that I have been donating copies of my books to several universities in the Philippines as part of my advocacies as a Law and I.T. Evangelist to spread the word about the proper appreciation and ethical use of cryptography. Greatest gratitude to the UP IAJ, the different IBP Chapters all over the Philippines, the ALF, and the ACLEX for providing me with the opportunity to impart the current trends and important rules that pertain to the protection of the rights of digital denizens to my fellow brothers and sisters in Law and Life!
DR. ATTY. NOEL G. RAMISCAL DONATING COPY OF HIS CRYPTOLOGY BOOK TO ARELLANO LAW LIBRARY THRU ALF

DR. ATTY. NOEL G. RAMISCAL DONATING COPY OF HIS CRYPTOLOGY BOOK TO ARELLANO LAW LIBRARY THRU ALF

What the National Privacy Commission (NPC), Department of Trade and Industry (DTI), and the Department of Communication Information Technology (DICT) should do to secure the e-data of millions of Philippine citizens from security breaches

In the Philippines, the awareness of cryptography began with the famous case filed by Atty. Harry H. Roque Jr. (who is now a Congressman) against the Commission on Election (COMELEC) in the latter’s use of the AES machines in 2009. Due to the current hearings on the I.R.R. on Data Privacy Law, interest in cryptography has newly arisen.

In my lecture for the MERALCO lawyers last June 24, 2016, on the “Legal Challenges and Complications of the Data Privacy Law”, I told the lawyers that I have been involved with the Data Privacy bills that were being pushed since 2008. In fact I was even a Technical Consultant of the former Commission on Information Communication Technology (CICT) and wrote a white paper on the cyberprivacy bills, before the CICT was downgraded into the ICTO and now formally elevated to the DCIT. This law mentioned “encryption” only once. I protested the fact that it only required encryption of data for purposes of off-site access (see Sec. 23, 3). This huge oversight has apparently been fixed in the current modification of the I.R.R., which has yet to be passed by the NCP.

The security breach of the unique personal information of the over forty million Philippine voters contained in the COMELEC database by Anonymous Philippines, and the subsequent irresponsible, unwarranted and illegal publication of these pieces of information by a U.S. website (wehaveyourdata.com) underscore the grave need to understand cryptography and how it could be used to protect the information of Philippine citizens, and the accountability and criminal liability of irresponsible government agencies. The State of the Nation Address (SONA) of President Duterte last July 25, 2016 showed how keenly he believes that computers and I.C.T. products can actually prevent corruption and lead to efficient public service.

My book traces the legal issues concerning the cryptographic features of the AES machines and the veritable absence of any comprehensive source code reviews by Philippine legitimate source code reviewers since the Roque case up to the 2015 Pabillo case and ties all the related issues, to come up with several major proposals that are quite valid and useful in the legal, political and social milieu of the Philippines after the 2016 elections.
Cryptology front cover
These proposals include overhauling the cryptosystem evaluation of any I.C.T. products that will be sold or used in the Philippines, and making the source code reviews for these products, not a piecemeal process, nor a per agency process, but a systematic process to be overseen by the three agencies I identified, which are the NPC, the DTI and the former Information Communication Technology Office, which has now been upgraded to the DCIT. This must be done to prevent the monumental fiascos committed by the COMELEC in its handling of the source code reviews of the AES machines in the past three automated elections from ever happening again. The justifications and the extensive details of my proposal are in my book.

For this article I desire to emphasize that these agencies, particularly the NPC, must consider not only the AISEP program I referenced earlier, but also the U.S. and Canadian Cryptographic Module Validation Program (CMVP) which the US National Institute of Standards and Technology (NIST) and the Communications Security Establishment Canada (CSEC) jointly developed, and the process observed by the Communications-Electronics Security Group (CESG) in the United Kingdom which conducts the CESG Assisted Products Service (CAPS) on cryptographic products. Together with AISEP, these systems or processes establish I.C.T. standards in the proper review of source codes of cryptographic goods.

Another matter that these agencies must look into are the practices of these governments in choosing the right set of cryptographic products to safeguard the data of their respective governments and citizens. The U.S. and Australian government have, for example, selected a suite of cryptographic technologies that are suited for protecting the security, integrity and non-repudiability of different types of electronic data, including digital signatures. These are very important, specially for the NCP, because its I.R.R. placed it as the lead agency when it comes to setting the guidelines for data protection and encryption [See Sec. 9, a., 1. Rule III].

The IBP Bulacan Chapter’s Humanitarian Outreach Program

One of the best things about taking my advocacies to the road is the opportunity to meet new people as well as get in touch with former classmates and schoolmates who are doing so well, not only in their personal and professional lives but in their advocacies as well.

Dr. Atty. Noel G. Ramiscal's Cryptology MCLE Lecture for IBP Bulacan, July 23, 2016

Dr. Atty. Noel G. Ramiscal’s Cryptology MCLE Lecture for IBP Bulacan, July 23, 2016

I was in Bulacan last year and totally enjoyed myself in my MCLE lectures. This year, I was truly amazed at the huge and warm support I got from the lawyers attendees, with the added bonus of seeing and conversing for quite some time with one of my classmates in UP Law, Atty. Pingki Bartolome Bernabe, who was the past IBP Bulacan President. Pingki is one of those kind, brilliant, creative souls, who would do wonders in her life, no matter what profession she is in. She was one of the very few people I could talk with in law school and I felt she never judged me in any way, which meant so much to me during that trying time. My mom and I were quite fortunate and appreciative in joining her in the ride back to Manila in her SUV. She’s got four amazing children, a doting husband, a successful career and a wonderful advocacy that has blossomed into a thriving movement in IBP Bulacan.
Dr. Ramiscal with current IBP Bulacan Pres. Atty. Topico, the past IBP Pres. Atty. Bartolome Bernabe and a lawyer gentleman from Bulacan, July 23 2016

Dr. Ramiscal with current IBP Bulacan Pres. Atty. Topico, the past IBP Pres. Atty. Bartolome Bernabe and a lawyer gentleman from Bulacan, July 23 2016

She and the current IBP Bulacan President, the dashing and jovial Atty. Arni Topico, and several other lawyers (including the fabulous Atty. Francine Longid and the suave Atty. Paul Alcudia) have banded together, and through their own resources have given lectures and pro bono services to our overseas foreign workers stationed in different countries. They have been tapping into the international network of pro bono lawyers with strong positive results, working with foreign lawyers and helping acquit some of our countrymen criminally charged in other countries and creating goodwill for our country by helping foreign nationals who get into legal trouble in the Philippines. This year, their group will be presenting a paper in an international conference and will participate in a European summit on pro bono/legal aid service. They are performing a very specialized service that answers a niche need that should be emulated by other IBP Chapters and recognized by the Supreme Court. I am so proud and uplifted by the accomplishments of this group of devoted, exceptional lawyers! May their initiative be blessed with more connections and the necessary funds to make it sustainable! This is a perfect example of lawyers bettering the world with their talents! May their tribe increase and prosper!
Dr. Atty. Ramiscal with the great IBP Bulacan officers, July 23 2016

Dr. Atty. Ramiscal with the great IBP Bulacan officers, July 23 2016


As always, thank you to the excellent IBP staff of Bulacan, Ms. Aida Oasay, and IBP National, Ms. Flora Arguson. To all the wonderful, gorgeous IBP Bulacan lawyers I met last July 23, 2016, and the great IBP Bulacan officers, I would like to say that it was truly a privilege and an honor to have served as one of your MCLE lecturers! I am genuinely moved by your generousity of Spirit and Kindness. Ilah’s dulce de leche and Eurobake’s inipit, were good, Rosalie’s Suman sa Pinipig were heavenly, but Il-Jamie’s crispy pata is worth coming all the way from Laguna to Bulacan! Thank You! God Bless Us! Insha Allah!

LAWBYTES 111: DR. RAMISCAL’S PHILIPPINE CYBERLAW: SHOULD ONE SURRENDER TO THE POLICE THE ACCESS CODES OR DECRYPTION KEYS TO ENCRYPTED DIGITAL CONTENT ONE POSSESSES?

One of the most important issues that I raise in all my lectures at the Mandatory Continuing Legal Education organized by different providers in the Philippines and talks in other fora concerning cyber privacy, data security, and cybercrimes deal with the matter of encrypted content in a person’s or suspect’s electronic devices which are the subjects of searches and seizures, warrantless or not, by the police.

This matter has become an intriguing topic in human rights circles because of the differences in treatment by the law, legal enforcement officers and judicial authorities in different jurisdictions.

In the United Kingdom, the Regulation of Investigatory Powers Act (RIPA) criminalizes the willful non-disclosure of access codes, computer passwords and decryption keys or “keys to protected information” that custodians have in their possession if these keys are relevant in a national security case or child indecency case. The custodian can be imprisoned for five years. In other cases where these codes or keys are not disclosed, the custodians can be jailed for two years.

The Office of the Solicitor General in Australia pushed for an amendment to the Australian Telecommunication Interception Act that would have made it a crime for possessors of pass codes and decryption keys, upon being asked by law enforcement agents, not to reveal such keys, When the said law was finally passed in 2015, it required that “(w)here a service provider encrypts retained data, the service provider must retain the technical capability to decrypt and disclose relevant retained data in a useable form in accordance with a lawful request or requirement under the TIA Act or Telecommunications Act.”

Dr. Atty. Ramiscal lecturing for the MCLE Seminars for the IBP Lanao del Norte

Dr. Atty. Ramiscal lecturing for the MCLE Seminars for the IBP Lanao del Norte

In the Philippines, the Cybercrime Prevention Act authorizes the police, in the search, seizure and examination of computer data to “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” (Sec. 15). The I.R.R. of the law does not actually add anything to what was said in the law. The 2015 Draft Manual on Cybercrime Investigation by the Department of Justice makes the existence of full disk encryption as a “consideration” in the acquisition of computer data and advises the use of “trusted tools” when volatile data is suspected to have been encrypted. It did not specifically task the law enforcement agents investigating the suspect of asking the latter for decryption keys to decode the encrypted content.

Dr. Atty. Ramiscal in one of his MCLE lectures for the IBP Leyte

Dr. Atty. Ramiscal in one of his MCLE lectures for the IBP Leyte

Encrypted content is difficult or computationally infeasible to decrypt in cases where the cryptographic software or product used, employed cipher keys that are sufficient in strength, and which there is no efficient algorithm or known attack that can break it. Even if the police manage to make a mirror copy or forensic copy of the hard disk drive of the computer, the encrypted content that resides on this drive may not be decoded or extracted by the police.

Dr. Atty. Noel G. Ramiscal with IBP CALMANA Pres. Atty. John Ibe

Dr. Atty. Noel G. Ramiscal with IBP CALMANA Pres. Atty. John Ibe

As people become more aware of the need to protect their privacy, they will resort to using encryption software which can make investigation of cybercrimes definitely more challenging for the police, who may be tempted to resort to shortcuts. It is in this instance where the police might be tempted to ask, threaten, coerce or cajole a suspect to give up the decryption key or access codes. So the question posed by this article becomes utterly relevant. Unfortunately, there is no Philippine jurisprudence or rule employed by the police on this matter. MCLE FOR IBP MAKATI LAWYERS 1 MARCH 12 2016

In all my MCLE lectures this year on cybercrimes, or electronic evidence, including those for the Integrated Bar of the Philippines Chapters of CALMANA (February 6, 2016), Laguna (February 13, 2016), Makati (March 12, 2016), Leyte (April 29, 2016), Negros Oriental (May 17, 2016) and the latest being Lanao del Norte (July 12, 2016), I apprise the lawyers/attendees of several US cases where the courts have decided that the police have no right to request the disclosure of access codes or decryption keys, as violative of the person’s right against self-incrimination.

Dr. Atty. Ramiscal with some of the gorgeous lawyers and the fabulous Judge Dottie of IBP Lanao del Norte

Dr. Atty. Ramiscal with some of the gorgeous lawyers and the fabulous Judge Dottie of IBP Lanao del Norte

In 2010, the U.S. District Court for the Eastern District of Michigan in United States v. Kirschner addressed whether a defendant’s Fifth Amendment privilege against self-incrimination extended to the defendant’s computer password. The court analogized a computer password to a wall safe combination that only resides in someone’s mind, in fact it is a product of the mind. This information is testimonial, without which the government cannot pursue its case, and being so, it is therefore protected by the right against self-incrimination.

In a 2012 case, the Eleventh Circuit applied the same principle to decryption keys concerning Doe, a YouTube user who was investigated by the government for sharing child pornography. Since the electronic devices that Doe utilized were all encrypted, the prosecutor ordered him to decrypt the devices. Doe challenged this as a violation of his right against self-incrimination which the Eleventh Circuit upheld. It held that the “decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents.” The court stated that, “[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use the ‘contents of his own mind’ to explicitly or implicitly communicate some statement of fact” that could be incriminatory, and without which the government would not be able to prove its case.

Dr. Atty. Ramiscal with IBP Lanao del Norte Pres. Atty. Gandamra and host Atty. Canizares Mindalano

Dr. Atty. Ramiscal with IBP Lanao del Norte Pres. Atty. Gandamra and host Atty. Canizares Mindalano

So defense counsels can look up these cases if their clients accused of any form of cybercrime were placed in a similar situation. However, as I have stressed in my lectures, there is one U.S. case that is an exception to the ruling in these two cases. This case involved Sebastian Boucher who was investigated by the U.S. government for online child pornography. When he was apprehended, his laptop was accessed by a forensic expert who was able to view thousands of child pornography images. But when his laptop was shut down, upon rebooting the police were not able to open the files again because the encryption mechanism kicked in. Boucher refused the police’s order to hand over his decryption key. This time around the court supported the police because, it is already a “foregone conclusion” that his e-devices contained child pornographic images which were already seen by the forensic expert, and thereby solidifying the existence of probable cause against him. So Philippine government prosecutors can utilize the principle found in this case to argue for the government’s right to be presented the access codes or decryption keys to encrypted hard drives or e-devices the incriminating contents of which were already partially viewed by law enforcement agents.

Dr. Atty. Ramiscal receiving an appreciation plaque from IBP Leyte Pres. Atty. Patick Santo and Atty. Nick Esmale reading the citation

Dr. Atty. Ramiscal receiving an appreciation plaque from IBP Leyte Pres. Atty. Patick Santo and Atty. Nick Esmale reading the citation

I would like to thank all the IBP Chapters officers and staff who had welcomed me and enjoyed their time with me: the fabulous Makati lawyers who gifted me with lemon oil and raspberry vinegar which proved unforgettable; the amiable CALMANA lawyers who were truly hospitable; the convivial Laguna lawyers who were quite appreciative of my insights; kudos to the Negros Oriental/Dumaguete lawyers (IBP Pres. Atty. Riconalla, Attys. Rocky, Elton and Nabi) and staff (Maricar Habanilla, et al) who went all out in making sure that my mother and me were satisfied with our food and accommodation, thank you to the crispy chicharon that lasted for about a week and a half!; heartfelt thank yous are in order to the IBP Iligan lawyers, in particular, their Chapter President, Atty. Khanini Gandamra, Atty. Diosdado Español and Atty. Edgardo Prospero who treated us at Tomyum, the lovely host, Atty. Annabelle Canazares Mindalano, Atty. Angel Lim (who so graciously and generously ferried my mom and me to our destinations and who shared with us his love of music), the very helpful student Ms. Aleah Rakhim, the accommodating IBP staff, Ms. Carandang and Ms. Arguson, and to everyone who made us feel so welcome in Iligan despite the very short stay we had there [the Cheding and dodol are very much appreciated!]; and finally, especial, especial, especial thank yous to all the Leyte lawyers, Attys. Hasmin, Chap, Matriano, Nick Esmale, and of course my UP schoolmate, bar topnotcher and a top notch human being, Atty. Patrick Santo for the grand Tacloban experience! My mom and I are still gushing about the food at Ocho-ocho and we trust we can go back there someday! It was truly an honor and privilege to have met and shared my advocacies with you all! God Bless Us! Insha Allah!

LAWBYTE 109: DR. RAMISCAL’S PHILIPPINE CYBERLAW: THE PROPOSED FEDERALISM, ITS POSSIBLE CONSEQUENCES FOR THE PHILIPPINE CITIZENS AND RESPONSIBLE I.C.T. GOVERNANCE

When I received an invitation from the Council of Deans of the Arts and Sciences (CDAS), ASEA, Region 10, to give two lectures, one of which would be on the proposed change in the unitary Presidential system that we have to a Federal type of government, I was excited to say the least, not because I am an expert on the Federal system of government, but because it is a subject that had been percolating in my mind, and I would be interested in seeing how the current government of President Duterte would factor in the utilization of information communication technologies (I.C.T.) for responsible governance in his reforms. However, the CDAS invitation requested that I give only a “sketch” of what can happen in a Federal type of government, so I willingly and happily obliged.

Dr. Atty. Noel G. Ramiscal speaking before the CDAS ASEA 10 on Federalism and its possible consequences

Dr. Atty. Noel G. Ramiscal speaking before the CDAS ASEA 10 on Federalism and its possible consequences

Any lecture of this kind must acknowledge the major and influential proponents of Federalism in the Philippines prior to President Duterte. So my discussion incorporated the major elements of the federalism espoused by former UP President Jose Abueva and former Senator Aquilino Pimentel Jr., as well as my understanding of different types of federal governments in several countries. Since I had word from one of the lawyers of PDP Laban that the Pimentel type is the one that is apparently favored by the current administration, I inputted some of the basic proposals found in Resolution No. 10 that the former Senator propounded. But as I said several times to the audience, none of the proposed changes are set in stone because Pres. Duterte has not come out with any specific detailed proposal of his vision for a Federal government. All of these are speculative for now.

One of the points I discussed which elicited a lively reaction is the basic “soundbyte” provided by President Duterte in one of his interviews that he favors the privatization of taxation in a federal system of government. Since I could not find any other details in my internet and other researches for this issue, I posed the question of what aspect of taxation would be privatized. One member of the audience said that this system of taxation, according to the Pimentel model must be “uniform”. But as I said that is hardly responsive, nor specific. Taxation is the lifeblood of any government, no matter what its system is. But taxation has different aspects, kinds, phases and processes. Aside from the fact that it must be “uniform”, it must also be “proportional”, i.e. based on the capacity to pay. Right now, taxation is sort of “privatized” with private employers serving as “withholding” agents of the government, in terms of the income taxes of their employees. The authorization of banks, including private banks to accept tax returns and tax payments of Philippine taxpayers, which is a current reality, is another form of tax privatization. The current administration must delineate in specific details what it means to have taxation “privatized” in a federal form of government.

Dr. Ramiscal accepting a Certificate of Appreciation from CDAS ASEA 10 Pres., Dr. Eballe and CHED CDAS ASEA Region 10 Coordinator, Ms. Igot

Dr. Ramiscal accepting a Certificate of Appreciation from CDAS ASEA 10 Pres., Dr. Eballe and CHED CDAS ASEA Region 10 Coordinator, Ms. Igot

The power to legislate separate Federal and State laws is an attractive feature of a federal government for that would allow different States (about eleven proposed States and one proposed Federal Administrative Region) of the Philippines to enact laws that will actually fit the needs and issues of their constituents, who come from different ethnolinguistic, cultural and religious backgrounds. Even if this were so, I reminded the audience that the power to legislate is not absolute. If there is a Federal Constitution, any State law should observe the boundaries of such constitution. And since any Philippine State is not nation unto its own, any state law should also consider the effect and lesson of the pertinent international laws, treaties, norms and principles that the current Republic of the Philippines had agreed and signed to in the past, and in the future.

Another significant point I raised, among others, would be the costs of the change of government. Definitely, the proposals: to move the Legislative and Judicial Branches of Government outside of Metro Manila, the creation of State governments with their own State Assemblies, leaders, staff, and a state civil service, separate from a Federal civil service, the changing of names and the building of relevant structures and infrastructures, would cost a lot of money. I have not seen any research that actually estimated or quantified the costs of such a change. But that would definitely be gargantuan. The question that should be posed is: Can we afford the change or can we afford not to? We must bear in mind the threat of the Bangsamoro, the separatist and the secessionist movements that President Duterte have articulated on many occasions which a lot of people recognize as real. So the follow-up question is: Would the change of government ultimately appease and stop these movements? There must be some form of binding mechanism that a Federal government can exact from its State governments that would prohibit and prevent the latter from any future move of separation, barring any extra-constitutional, extra-legal, revolutionary event.

Apart from the costs, the process of changing the form of government may take quite some time. Former Senator Pimentel Jr., came out with a statement that it would take two years for a Constitutional Convention to effect this, and the remaining four years of President Duterte’s term to implement the change. President Duterte would go down in history as a transitional President, but this may not be a bad thing, as long as he is not distracted from effecting the other reforms he promised.

As for the role of I.C.T., this was an issue I actually posed to myself in course of the Q & A. It is indubitable that all government operations and good governance rely on a reliable, safe, secure I.C.T. backbone. The recent hacking and publication of over forty million unique personal information of Philippine voters contained in the COMELEC database, in a website maintained in the U.S. is just an example of a long standing series of security and privacy breaches that were committed in the past administration, which gave an indication of the ineptness, inefficiency and incompetence of the relevant agencies comprising the Philippine bureaucracy when it comes to the use of I.C.T.

I reminded the educators present in the CDAS-ASEA Region 10 conference of their monumental responsibility, particularly the educators in I.C.T., of teaching their students the ethical aspects of the use of technology. Technology can serve as a beacon and instrument of real effective change. It can be an antidote to corruption and can be used to expose of government crimes and wrongdoings. I told them of the trend in the U.S. of offering Master degrees in the Ethical Use of Technology. Just because a person can hack, does not mean he or she should hack. It is my hope that they will contribute to a world where our I.C.T. competent children would not accept corruption as a fact and way of life in the Philippines. See the abbreviated powerpoint presentation hereDr. Ramiscal’s Powerpoint presentation FEDERALISM AND ITS POSSIBLE IMPLICATIONS FOR PHILIPPINE CITIZENS.

I bolstered this point in my second lecture on the “Security and Privacy of Data” which is part of the digital and “legal” literacy advocacy that I have been involved with, and is in consonance with the CDAS-ASEA theme: 21st Century Themes and Skills: Multimedia Literacy Through the Web”. I showed the audience some forms of cyberprivacy crimes, i.e., crimes committed using I.C.T., that impact on the lives and livelihoods of people whose data were stolen or breached by outside elements, or through the practice of personal information controllers, some of whom are government agencies. A federal government must ensure that the additional layers of State governance would not introduce additional vulnerable security and privacy spots that can harm the people they seek to protect. My ultimate point was that educators should show the way by being ethical examples of I.C.T. enabled and aware citizens. I discovered that some members of the audience videotaped my presentation without my consent. I told them under the current Data Privacy law (R.A. 10173) the recording of my lecture is considered a form of “data processing” which should have been done with my prior notice and knowledge and I asked them to delete the recording, which they apparently did. Instead of being upset, I took this as another way of imparting crucial knowledge to them, which I trust they appreciated.

Dr. Atty. Noel G. Ramiscal with the CDAS ASEA 10 officers

Dr. Atty. Noel G. Ramiscal with the CDAS ASEA 10 officers

Anyway, all’s well that ends well. I would like to thank the CDAS ASEA Region 10 for their gracious invitation and generously billeting me and my mom at the tasteful and modern N Hotel. Especial thanks to the CDAS-ASEA 10 members, their helpful officers, including Dr. Adora Velez, the beautiful host, Ms. Jeneifer Nueva, their dashing President, Dr. Rolito Eballe for his welcome, insight and interest in my topics, and to the lovely and brilliant CDAS-ASEA 10 and CHED regional coordinator, Ms. Nathalie Igot for her inspiring presence and inspired way of communicating, which is why she is a credit to the public service. God Bless and Thank You all! Insha Allah!

Great News: The Publication of Dr. Atty. Noel G. Ramiscal’s book “Cryptology: The Law and Science of Electronic Secrets and Codes”

It is with elation mixed with some form of relief that I officially pronounce in this, my own cyberlaw blog, the publication of my book “Cryptology: The Law and Science of Electronic Secrets and Codes”. It was partially funded by the University of the Philippines Institute of International Legal Studies (UPIILS). The grant covered only the year 2012. I submitted my output in January 2013 but I told UPIILS that I desire to work on it further and submit a more complete manuscript that will cover the latest developments in four countries that I have chosen for my study: Australia, U.K., U.S.A. and the Philippines. Little did I know at the time that it will take me almost three more years to finish what I set out to do, and I had to cover all my research and related expenses during this time. I also took the initiative of having some of the best people in the I.T. industry and Law review my book. I submitted the revised manuscript to the UPIILS, with the latest inputs being May 12, 2015.

The Front Cover of Dr. Ramiscal's "Cryptology" book published April 18, 2016, designed by Mr. Jon Malinis

The Front Cover of Dr. Ramiscal’s “Cryptology” book published April 18, 2016, designed by Mr. Jon Malinis

The book was supposed to have been published within the last half of 2015. But the government procurement process (over 7 months) and the printing process (over four months) did not make that possible. It was only during the latter half of April 2016 that the book was finally published and displayed at the UP Law Center. Due to administrative constraints of UPIILS, there was no launching held prior to the May 2016 elections, and up to now, there is no planned launching at all.

In the morning after the May 9, 2016 elections, grumblings about the security and credibility of the automated election process are already being sounded, and several election related deaths are already reported in some provinces. My book dealt, among others, with the particular issues concerning the procurement of the Automated Election Systems (AES) machines and the review (or lack therof) of the source codes of the AES machines, particularly in the May 2010 and 2013 elections and, the issues that surfaced on these matters up to May 2015 that have an impact on the May 2016 elections. Most of the facts detailed in the book are still true. All of the recommendations and proposals I made are still good even after the May 2016 elections. I trust that the independent Joint Congressional Oversight Committee on the Automated Election Systems (JCOCAES) would look at the matters that I specifically addressed to it so that meaningful and lasting reforms in the AES process could be made.

However, it is important to state that my book is NOT merely about electronic elections in the Philippines. It traced the historical, technical and legal developments of cryptography and cryptanalysis on the human rights and academic freedoms of the stakeholders, and the industries connected with cryptology in the countries included in the project. So for those of you who are interested in the art, science and law of hiding and breaking electronic codes and secrets, their life altering, and even life threatening implications, and their national security, and public interest considerations, please go to the UP Law Center and secure your copy.

I would like to thank everyone and everything who, and which, helped me during my almost five year journey into the world of electronic secrets: the GOD, the Jesus Christ Consciousness Within, my Source, and my mother, Juanita “Nitz” Ramiscal, my Inspiration; the wonderful reviewers of the book, Dr. William Yu, Mr. Edmundo “Toti” Casiño, Atty. Leo Romero, Dr. Lex Muga; Atty. Harry Roque Jr., who was the UPIILS Director and the staff of this institute; the Supreme Court PIO officials (especially Atty. Gleo Guerra) and staff; the UP IAJ people; Mr. Jon Malinis who brilliantly designed the front and back covers of my book; the generous world renowned cryptologist Dr. Bruce Schneier; and all the amazing men and women of the multidisciplinary field of cryptology from whom I have learned and continue to learn so much in the physical and the nanoworlds of possibilities.

These are what people have to say about my book:

Cryptology as a discipline arose from the human need to encode secrets (cryptography) and to break the codes enmeshed with these secrets (cryptanalysis). Dr. Atty. Noel G. Ramiscal’s book “The Law and Science of Electronic Secrets and Codes” is a timely and significant work that surveys and critiques the legal developments in the field of cryptology in the international arena, in particular, the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, and the implementation of its provisions in three countries which are considered the leading States in the battle against terrorism: the United States of America, Australia and the United Kingdom. Fusing legal and technological research and analyses, Dr. Ramiscal’s seminal study of the cryptological developments delving on the automated elections, source codes, e-procurement, eTitling of lands, cryptocurrency, electronic evidence, data privacy and legal ethics in the Philippines, breaks new ground. Dr. Ramiscal proposes the overhaul of the legal mechanism for source code reviews of any and all information communication technology (ICT) and security products that utilize cryptologic features which are, or would be sold or disseminated in the Philippines. We thus commend this research endeavor of Dr. Ramiscal and trust that it contributes to the edification and understanding of the issues concerning cryptology as a dual-use good, inherent or built-in in ICT and security products, and as a discipline that affects all stakeholders of the digital society.

Based on the Foreword – Atty. Harry Roque Jr., former UP IILS Director

As more and more products and services are offered over public computer networks like the Internet and Mobile Networks, this leads to the increased emergence of digital crime and fraud. Traditional methods of protection (security guards, walls, fences, locks and gates) are no longer sufficient in the light of the growing acceptance of digital transactions. It is imperative that all of us gain a better understanding about how our information is handled, managed and secured. It is also crucial that our legal and law enforcement professionals upgrade their knowledge of these digital threats and countermeasures. Unfortunately, there is a lack of readily accessible material that covers both information security and law. I am happy that Dr. Ramiscal has decided to embark in this ambitious project that would hopefully serve as a good introduction to cryptology while grounding it in legal contexts and applications.

Dr. William Yu, Professor, Ateneo de Manila University

Dr. Atty. Noel Ramiscal is able to elucidate on the complexities of cryptology in a comprehensive yet succinct form for the reader to appreciate the breadth and depth of the subject matter given its significance to law and society. Explicating the intricacies of authentication and verification and security in electronically transmitted exchanges based on best practices and global standards and connecting these with basic freedoms make this book a timely exposition to the emerging connected world where states and economies aim to coexist in a transitional blend, be it for politics, commerce or governance.

Mr. Edmundo “Toti” Casiño, former Philippine Computer Society President and IT guru

Law has oft been referred to as a confluence, requiring the practitioner to acquaint himself not only with the language of the statute, but with the myriad topics which the law may cover. This is vividly demonstrated in the esoteric but timely mix of cryptology and the law, which has been gamely tackled by Dr. Ramiscal in his latest work. Esoteric, because cryptology is a subject which few lawyers in this jurisdiction have bothered to read about, let alone master; timely, because as Dr. Ramiscal has pointed out in his work, cryptology has become more and more integral to the workings of modern government, to the extent that lawmaking bodies the world over have found it increasingly necessary to legislate on the subject. Truly, this work is a “must have” for any modern law library.

Atty. Leo S. Romero, Partner, Rualo Gonzalez Ong Romero Law firm

LAWBYTE 108: THE NON-EFFECTIVE IMPLEMENTATION AND IMPLIED REPEAL OF THE PHILIPPINE CYBERCRIME PREVENTION ACT? Copyright by Dr. Atty. Noel G. Ramiscal

Ever vigilant of cyber law issues that could impact the rights and interests of Philippine citizens who are netizens, Dr. Atty. Noel G. Ramiscal has presented lawyers and law students in his Mandatory Continuing Legal Education (MCLE) lectures and recently concluded lecture tours of three universities in Cebu an important legal issue that could catalyze into a case of first impression:

Did the 2012 Philippine Cybercrime Prevention Act (R.A. 10175) passed in 2012 become effectively implementable with the promulgation of its Implementing Rules and Regulations (IRR) and its later deposit with the University of the Philippines Office of the National Administrative Register (UP ONAR) three years after its passage?

Dr. Atty. Noel G. Ramiscal first expounded on this issue in his MCLE lecture on the “Substantive and Procedural Developments in Cybercrime Law” for the Office of the Solicitor General (OSG) lawyers last October 8, 2015 at the Malcolm Hall, UP Law Center. He also did the same for the Integrated Bar of the Philippines (IBP) Iloilo Chapter last October 29, 2015, at the Iloilo Convention Center; for the IBP Nueva Ecija Chapter last November 12, 2015 at the Rico Fajardo Hall, NEUST, Sumacab, Cabanatuan; for the IBP Batangas Chapter last November 27, 2015 at the OCVAS Training Center in Bolbok; for the lawyers who attended his MCLE lecture last December2, 2015 at the UP Law Center, Penthouse, Diliman; as well as in his lectures for the law schools of the University of Cebu (November 18, 2015), the University of San Carlos (November 19, 2015) and the South Western University (November 20, 2015).

Dr. Atty. Noel G. Ramiscal's lecture on Trends in Cybercrime Law for IBP Batangas, Nov. 27, 2015

Dr. Atty. Noel G. Ramiscal’s lecture on Trends in Cybercrime Law for IBP Batangas, Nov. 27, 2015

R.A. 10175 was approved last September 12, 2012. It specifies the mandatory action that will give rise for its implementation, thus:

Section 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.

If the named agencies followed the mandate of the law, they should have released the IRR at the latest by January of 2013. But they did not.

For those who remember their Philippine Administrative Law, and have done research on the full extent of legal due process via “notice” of the law to the general public, they would know that the full effective implementation of any law would only commence from the time the required certified copies were deposited with the UP ONAR at the U.P. Law Center which usually follows after they have been published in the Official Gazette or newspapers of general circulation. ONAR was established to fulfill the requirement under Section 3 of Book VII of the Administrative Code of 1987 which requires every agency in the Government to file three (3) certified copies of every rule (that includes Implementing Rules and Regulations) adopted by it with the University of the Philippines Law Center.

Dr. Atty. Noel G. Ramiscal's MCLE lecture for OSG lawyers, Oct. 8, 2015

Dr. Atty. Noel G. Ramiscal’s MCLE lecture for OSG lawyers, Oct. 8, 2015

Dr. Atty. Noel G. Ramiscal's MCLE lecture on Electronic Evidence for IBP Iloilo, Oct. 29, 2015

Dr. Atty. Noel G. Ramiscal’s MCLE lecture on Electronic Evidence for IBP Iloilo, Oct. 29, 2015

Dr. Atty. Noel G. Ramiscal's lecture on developments in Cybercrime Law for IBP Nueva Ecija, Nov. 12, 2015

Dr. Atty. Noel G. Ramiscal’s lecture on developments in Cybercrime Law for IBP Nueva Ecija, Nov. 12, 2015

Dr. Ramiscal was able to get a certified copy of all the pages of the R.A. 10175 from the UP ONAR last September 24, 2015. Such certified copy revealed that the certified copies of the IRR were actually deposited with the U.P. ONAR last September 21, 2015.

First page of the IRR of R.A. 10175 certified by UP ONAR, secured by Dr. Atty. Noel G. Ramiscal, September 24, 2015

First page of the IRR of R.A. 10175 certified by UP ONAR, secured by Dr. Atty. Noel G. Ramiscal, September 24, 2015

From the point of view of the administrative process of making laws effectively implementable, the actual date of the full effective implementation of R.A. 10175 is September 21, 2015.

Be that as it may, let’s go back to the question, is R.A. 10175, truly effectively implemented with the late passage of its IRR by three years?

The jurisprudence on implied repeals generally center on either the irreconcilability of two laws, or where the legislature intended one law to substitute an earlier law. Neither is applicable to this matter.

In this case, however, one must look at the directive of Section 28. The operative word in this section relative to these three agencies is the word “shall” which under the rules of statutory construction denotes an imperative act to be done within the specified timeframe.

One could then argue and for good substantial reasons that the Philippine Cybercrime Prevention Act had already been impliedly repealed by the inaction of the concerned agencies for almost three years beyond the legal ninety day period wherein they were supposed to formulate the IRR. They were remiss in their legal duty of observing the time frame. Plus, the lengthy period of their inaction hardly seems reasonable.

The filing of the required copies with UP ONAR is crucial because each rule as provided in Section 4, Book VII of the Administrative Code shall become effective fifteen (15) days from the date of filing with the UP Law Center “unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule”.

But the fact is, R.A. 10175 based its “effective implementation” on the passage of the IRR. Furthermore, there is no statement in the law itself being effectively implemented without the IRR due to any “imminent danger to public health, safety and welfare”.

Moreover, there is also no proviso that offered an alternative way for the law’s effective implementation despite the agencies’ inaction or unreasonable delay. Unlike Republic Act No. 9211, the Tobacco Regulation Act, June 23, 2003, which provided:

Section 37. Implementing Rules. – The IAC-Tobacco shall promulgate such rules and regulations necessary for effective implementation of this Act within six (6) months from the date of publication of this Act. The said rules and regulations shall submitted to the COC- Tobacco for its review. The COC-Tobacco shall approve the implementing rules and regulations within thirty (30) working days of receipt thereof: Provided, That in the event the implementing rules and regulations are not promulgated within the specified period, the specific provisions of this Act shall immediately be executory…

R.A. 10175 did not cover the circumstance when the agencies tasked with the important function of creating the IRR would not fulfill their duty within the timeframe set by the law.

One can take notice of the fact that the law underwent constitutional challenges which was resolved by the Supreme Court in an en banc decision in February 2014 which upheld the constitutionality of most of the law’s questioned provisions. This contingency is neither a legal impediment nor a legal excuse for the involved agencies not to have come up with the IRR within the stipulated time stated in the law. The fact that the Supreme Court ruled unconstitutional certain provisions of the law (e.g. the criminalization of spamming, the real time collection by police enforcement agents of “traffic data” upon their own determination of “due cause”, etc.) would not diminish the responsibility of these agencies in coming up with the timely and necessary IRR, since the affected rules could be amended later on to reflect the Supreme Court’s ruling.

These agencies also involved certain entities in its consultative process conducted last 2014, in order to come up with the IRR. But this consultation process which was not expressly sanctioned under the law, was done two years after the law was already passed. And even with this consultation, it took these agencies more than a year to finally release the IRR.

This is a matter that deserves judicial scrutiny. The judiciary must weigh all the factors bearing in mind that if they decide to excuse this, that would give all the more reason for government agencies to flout their power, and the judiciary would give the impression that they are authorizing these agencies’ irresponsibility and approve their non-observance of laws that they are meant to implement!

In all his lectures, Dr. Ramiscal has asked audiences of their stand on this issue. To those who believed that the Cybercrime Prevention Act is effectively implemented despite of what was NOT done by these agencies, they cannot come up with a clear articulate legal reason to support their position.

Even with the Supreme Court’s 2014 en banc ruling on some of R.A. 10175’s provisions, the law still contains legally objectionable features which had not been the subject of any petition, that if implemented, will certainly have deleterious effects on the legal rights of Philippine citizens, particularly those accused of cybercrimes, and telecommunication, internet and service providers, the details of some of which, were elucidated upon by Dr. Ramiscal in his lectures.

To those defense lawyers whose clients are the subject of pending cybercrime cases, who have come up to Dr. Ramiscal and asked his opinion, he has always said that this issue should be the preliminary question they should raise in their clients’ defense. In one of his dinners after his lectures, he was fortunate enough to discuss this issue with the powerhouse couple of Atty. Daryl Largo, a big-time legal practitioner in Cebu, and Atty. Joan Largo, who is currently the Dean of the University of San Carlos, and who represented the St. Theresa’s College (STC) in the now famous Vivares v. STC case.

Dr. Atty. Noel G. Ramiscal with mom, the University of San Carlos power couple Atty. Daryl and Joan Largo and two USC student leaders

Dr. Atty. Noel G. Ramiscal with mom, the University of San Carlos power couple Atty. Daryl and Joan Largo and two USC student leaders

This issue, as stated by Dr. Ramiscal, is an important threshold question that is significant due to the fact that the Cybercrime Prevention Act generally raised the penalty of any crime committed to, through, or via any computing system or e-device to one degree! Thus, it must be tested in court.

As always, Dr. Ramiscal would like to express his immense gratitude to the OSG, the UP IAJ, the IBP Iloilo Chapter, the IBP National, the IBP Nueva Ecija and IBP Batangas, for giving him this opportunity to present his views and insights on the state of cybercrime law in the Philippines. Utmost thanks goes out to Atty. Maricar Villanueva Hiballes, the beautiful and gracious IBP Iloilo Chapter President, the IBP Iloilo staff, the UP IAJ staff, and the wonderful and generous IBP Iloilo lawyers who truly welcomed Dr. Ramiscal!

Dr. Ramiscal dining with the elegant IBP Iloilo Pres. Atty. Hiballes, the lovely (ret) Judge Pison, and the wonderful staff of UP IAJ, SC and IBP Iloilo, Oct. 28, 2015

Dr. Ramiscal dining with the elegant IBP Iloilo Pres. Atty. Hiballes, the lovely (ret) Judge Pison, and the wonderful staff of UP IAJ, SC and IBP Iloilo, Oct. 28, 2015

Especial shout out to the lovely and vivacious (ret.) Judge Rose Pison, who is always a great dinner companion!

Grand thanks to the debonair and accommodating Atty. Bembol Castillo,

Dr. Atty. Noel G. Ramiscal with IBP Nueva Ecija President, Atty. Bembol Castillo

Dr. Atty. Noel G. Ramiscal with IBP Nueva Ecija President, Atty. Bembol Castillo

the IBP Nueva Ecija Chapter President, the IBP Nueva Ecija staff, Ms. Elisa Cruz, Mr. Joey Pastor (the SC monitor), and the kind and lively IBP Nueva Ecija lawyers!

Utter gratitude to the IBP Batangas President, Atty. Erwin Aguilera, and its Board of Directors,

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from IBP Batangas Atty. Pargas and staff, Ms. Aloria, Nov. 27, 2015

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from IBP Batangas Atty. Pargas and staff, Ms. Aloria, Nov. 27, 2015

the dapper Atty. Neil Adrian Pargas, the very helpful Ms. Tina Aloria and the whole IBP Batangas staff, Mr. Junrich, Mr. Jun, the SC monitor, and the precious Ms. Flora Arguson!

One of the best privileges of doing this tour is meeting and connecting with fellow MCLE lecturers like the marvelous Judge Charito Macalintal Sawali, and the brilliant Atty. Erickson H. Balmes (a man of many talents), with whom Dr. Ramiscal and his mom had several breakfast sharings. Greatest appreciation to Atty. Balmes,

Dr. Atty. Noel G. Ramiscal with fellow MCLE lecturer Atty. Erickson H. Balmes, IBP Batangas, Nov. 27, 2015

Dr. Atty. Noel G. Ramiscal with fellow MCLE lecturer, Atty. Erickson H. Balmes, IBP Batangas, Nov. 27, 2015

as well as the Eulo blend of coffee that he and his family cultivate and share with their friends! This would not be complete without the recognition of the indefatigable and truly exceptional Atty. Bono Adaza, who has attended two of Dr. Ramiscal’s recent MCLE lectures. To you sir, Mabuhay po kayo at Salamat po!

Dr. Ramiscal also acknowledges the vital partnerships the IBP Cebu Chapter (through its Board of Directors, its President, Atty. Malig-On, Jr., and its Treasurer, Atty. Misal Martin) established with the University of Cebu, the University of San Carlos and the South Western University, that allowed Dr. Ramiscal to share some of his knowledge, experience and fruits of his research with the wonderful and appreciative law students of these universities! God Thanks to all of you!

LAWBYTE 107: THE FALSE BASES FOR THE UNDULY RESTRICTIVE SOURCE CODE REVIEW GUIDELINES IMPOSED BY THE COMELEC, Copyright by Dr. Atty. Noel G. Ramiscal

Last September 10, 2015, in October 8, and 29, 2015, in November 12, 2015, in November 18, 2015, and in November 27, 2015, Dr. Atty. Noel G. Ramiscal took the rare opportunity of bringing to the attention of the lawyers in the Integrated Bar of the Philippines, Nueva Vizcaya Chapter, the Office of the Solicitor General (OSG) lawyers, the IBP Iloilo, IBP Nueva Ecija and IBP Batangas Chapters, in his Mandatory Continuing Legal Education (MCLE) lectures presented for them, and the students who attended his lecture in University of Cebu (UC) which ran for three hours, respectively, a little known and legally unexplored fact in the whole unfortunate saga of the source code reviews concerning the automated election systems, like the PCOS machines used by the Commission on Elections (COMELEC) in the 2010 and 2013 e-elections in the Philippines.

Dr. Atty. Noel G. Ramiscal's lecture on Pre-Trial and Trial Skills on E-Data for IBP Nueva Vizcaya, September 10, 2015

Dr. Atty. Noel G. Ramiscal’s lecture on Pre-Trial and Trial Skills on E-Data for IBP Nueva Vizcaya, September 10, 2015

In 2009, Atty. Harry H. Roque, Jr., who has achieved the reputation as a stalwart defender of the rights of the downtrodden, together with several others filed a case in the Supreme Court to stop COMELEC from continuing the May 10, 2010 automated elections for reasons that are beyond the purpose of this article. Atty. Roque, Jr. lost, and as expected, he filed a Motion for Reconsideration which the OSG, arguing for the COMELEC, opposed in its Comment. One of the issues raised in the Motion pertained to the source code review by legitimate Philippine source code reviewers who were not given the unfettered freedom to review the source codes which was given to the international certification entity hired by the COMELEC, Systest Labs Inc. which actually reviewed the source codes of the AES machines using its own tools and software in its own laboratory in Denver, Colorado. The OSG’s colourful response to this was:

To allow a free- for-all review of the source code as the petitioners would suggest is to encourage unscrupulous individuals or groups to make a mockery of our elections and allow them opportunity to change its results as they please. It bears stressing that the source code is the instruction that commands the machine to accept the ballot, to read and count the votes, to scan the ballots and transmit the results. To indiscriminately allow its review is tantamount to feeding the burglars the very fittings of the main door such that they would know the type of key to be used and make it easy for them to commit burglary…(The review) under a controlled environment (is necessary), if only to ensure that no scrupulous individuals or groups will be able to replicate the source code, tamper with it, intercept the machines and feed the PCOS machines with tampered source code. It is the public respondent COMELEC’s bounden duty to secure the PCOS machines, including the source code.

Dr. Atty. Noel G. Ramiscal making the point for the OSG lawyers that Copyright violations are inherent in legitimate source code reviews, Oct. 8, 2015

Dr. Atty. Noel G. Ramiscal making the point for the OSG lawyers that Copyright violations are inherent in legitimate source code reviews, Oct. 8, 2015

There were two reasons that could be gleaned from this response. The first is the popular concern that allowing an unfettered review would give the Philippine source code reviewers the chance to tamper with the source code and hence tamper with the election results. This immediately presumed bad faith on the part of the Philippine source code reviewers. This is contrary to the fact that the COMELEC had the power to vet the qualifications of the Philippine source code reviewers and to disallow any unscrupulous entities from accessing the source codes. In truth, the COMELEC’s actuations placed the source codes of the AES machines used in the 2010 elections beyond the review of any legitimate Philippine source code reviewer, even up to this very day.

The second, and seemingly reasonable reason, concerns the intellectual property rights (IPR) claims that Smartmatic-TIM apparently had on the source codes. This can be culled from the OSG’s reference to burglary, with the view that having access to the source codes can allow an IPR infringer to replicate and steal the source codes and use them for nefarious purposes.

Dr. Ramiscal explained to the OSG lawyers (as well as the IBP Nueva Vizcaya, Iloilo and Nueva Ecija lawyers), citing the evidence he gathered from his research project/book “Cryptology: The Law and Science of Source Codes and E-Secrets” that IPR infringements are evidently inherent in any legitimate, complete and credible source code reviews. Source codes that are subject to standard legitimate reviews are not given to source code reviewers in read copies only. The replication of source code parts, modifying them and even reverse-engineering them in the process of conducting a thorough source code review are to be expected, since legitimate source code reviewers will run the source codes through their software tools and programs, which was what Systest Labs Inc. did on its source code reviews for the AES machines used in the 2010 e-elections. Dr. Ramiscal, had discussed this in his Mandatory Continuing Legal Education (MCLE) lecture presented before the UP Institute of Administration of Justice way back in 2010.

Dr. Atty. Noel G. Ramiscal with some of the wonderful lawyers at IBP Nueva Ecija, Nov. 12, 2015

Dr. Atty. Noel G. Ramiscal with some of the wonderful lawyers at IBP Nueva Ecija, Nov. 12, 2015

Dr. Ramiscal also gave examples of procedures in the U.S., Canada, Australia, New Zealand and the United Kingdom, culled from his book, where entities that are allowed by law to conduct legitimate source code reviews of cryptographic products do so under the condition that the source code owners of these products give them the license to access the source codes and conduct their source code reviews with absolute freedom.

Dr. Atty. Noel G. Ramiscal with gorgeous IBP Batangas lawyers and staff, Nov. 27, 2015

Dr. Atty. Noel G. Ramiscal with gorgeous IBP Batangas lawyers and staff, Nov. 27, 2015

Finally, Dr. Ramiscal mentioned in his OSG lecture, the e-voting pilot tests in 2011 and 2013 in Norway where the government allowed any member of the populace in Norway, or anyone in the world for that matter, to access and download the source codes developed by Scytl, available on a government site, so the codes can be reviewed by all, and encouraged all the reviewers to publish their results.

Prior to the elections, the Norweigian government published versions of the source codes for all to access and review with the following notice:

Trust is vital for the Norwegian electoral system. It is therefore important that everyone who wishes to do so can find out how the system works. In order to safeguard this principle, the ministry is now publishing the source code for the e-voting system. In this way those who wish to do so, and who understand computer programming, can download it and inspect it. [Publishing is] one of several means to make it possible for outsiders to check how the elections are carried out (Pages 139 to 140, Dr. Ramiscal’s book, citation omitted).

Contrary to the sentiments expressed in the OSG Comment, the Norweigian government’s action did not lead to unscrupulous people opening up the “brain” of the AES machines and infecting it or tampering it to defeat the will of the electorate. The complete transparency and the allowance of the Norweigian government for the source code reviewers to publish their reviews led the Norweigian government to discontinue the e-voting for 2015 due to many documented findings about the source codes’ defects and the breaches in the security of the results and the privacy of the voters.

One of the major findings and recommendations in Dr. Ramiscal’s book was to view source code reviews done by any source code reviewer (whether from the Philippines or a foreigner) as an instance of fair use, or legitimize it by making it an exception to the strict copyright stranglehold provisions of the Intellectual Property Code of the Philippines.

Dr. Atty. Noel G. Ramiscal presented a Major Recommendation to the OSG lawyers on the matter of the source code reviews of the AES machines, Oct. 8, 2015

Dr. Atty. Noel G. Ramiscal presented a Major Recommendation to the OSG lawyers on the matter of the source code reviews of the AES machines, Oct. 8, 2015

In light of all these, Dr. Ramiscal opined that the new Guidelines issued by the COMELEC [COMELEC RESOLUTION 9987, September 14, 2015 {IN THE MATTER OF THE GUIDELINES IN THE CONDUCT OF THE SOURCE CODE REVIEW IN THE AUTOMATED ELECTION SYSTEM FOR THE 09 MAY 2016 NATIONAL AND LOCAL ELECTIONS}] basically culled from its 2010 and 2013 Guidelines, with its unduly restrictive procedures and non-disclosure agreements, are discriminatory, unjust and if followed would lead to sham source code reviews.

Dr. Atty. Noel G. Ramiscal's MCLE lecture on Electronic Evidence for IBP Iloilo, Oct. 29, 2015

Dr. Atty. Noel G. Ramiscal’s MCLE lecture on Electronic Evidence for IBP Iloilo, Oct. 29, 2015

In concluding this matter, Dr. Ramiscal specifically appealed to the OSG lawyers to rethink their agency’s position on source code reviews, and for all the lawyers in the IBP Chapters he was privileged to lecture for, to strive to keep abreast of the technological and legal developments in this area, so that they could better serve the cause of Truth and Justice in the Public Service and protect the True Will of the Philippine Electorate. A huge thanks to the OSG, UP IAJ, the IBP National, and the IBP Chapters of Nueva Vizcaya, Iloilo, Nueva Ecija and Batangas for allowing Dr. Ramiscal to share these with the lawyers who attended his lectures.

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from the gorgeous lady lawyers and officers of IBP Nueva Ecija, Nov. 12, 2015

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from the gorgeous lady lawyers and officers of IBP Nueva Ecija, Nov. 12, 2015

A mighty shout out goes to the IBP Cebu Chapter (especially to its Board of Directors, its President, Atty. Gonzalo Malig-on, Jr., and Treasurer, the ever gracious and lovely Atty. Mundlyn M. Martin), for co-sponsoring the lecture given by Dr. Ramiscal to the UC students, in partnership with the University of Cebu, represented by the Dean of College of Law, Atty. Baldomero Estenzo.

The University of Cebu Law School audience of Dr. Atty. Noel G. Ramiscal, Nov. 18, 2015

The University of Cebu Law School audience of Dr. Atty. Noel G. Ramiscal, Nov. 18, 2015

Heaps of appreciation as well to UC’s resident fashionista: the amazing Atty. Ria Espina, the wonderful Atty. Anne Tan, the marvellous Atty. Maricar Tallo, and the magnificent UC law students who apparently were not fazed nor tired by Dr. Ramiscal’s three hour lecture on the trends in cybercrime, cryptology and social media!

LAWBYTE 106: CYBER SERVICE OF PROCESS THROUGH SOCIAL MEDIA AND RELATED MATTERS THAT FUTURE PHILIPPINE CYBER JUDGES MUST KNOW, COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL

December 2, 2015 is another memorable day in Dr. Atty. Noel G. Ramiscal’s advocacies, particularly in delineating some of the crucial areas that judges in the Philippines should be aware of, as part of their broad duty of competence particularly in the area of cyberlaw. Dr. Ramiscal was invited by the University of the Philippines Institute of Administration of Justice to give a lecture on “Competence and Ethics for Cyber Judges” on that day and he took it as a wonderful opportunity to apprise the attendees of some of the crucial technological developments and cyber issues that they may encounter in their practice, which they may have to bring to the attention of judges. As Dr. Ramiscal said, it is better to have such type of knowledge as part of the arsenal of cyberpractitioners so they can best present their arguments and enlighten judges on the state of technology and law on a particular issue as part of their ethical duty as agents of the court and Truth. In light of this, Dr. Ramiscal apprised the attendees of several legal developments in the utilization by judges in several jurisdictions of information technological tools in their professional and personal lives and how that had impacted on their careers.

Dr. Atty. Noel G. Ramiscal at his MCLE lecture for UP IAJ, Dec. 2, 2015

Dr. Atty. Noel G. Ramiscal at his MCLE lecture for UP IAJ, Dec. 2, 2015

One of the most crucial issues Dr. Ramiscal discussed was the question the fabulous and extraordinary Atty. Lorna P. Kapunan posed to him in one of his MCLE lectures in 2012 [that dealt with legal trends in cyber ethics for lawyers]:

Can anyone serve any court process through the internet, particularly social media?

Dr. Atty. Noel G. Ramiscal posing with the fabulous Atty. Lorna Kapunan and her two wonderful law partners, after his MCLE lecture, Nov. 2012

Dr. Atty. Noel G. Ramiscal posing with the fabulous Atty. Lorna Kapunan and her two wonderful law partners, after his MCLE lecture, Nov. 2012

Dr. Ramiscal’s answer then, as it is now, is a resounding yes, with the qualification that lawyers should convince judges of the need to do so, particularly when the party sought to be served has proven to be quite elusive!
The current Philippine Rules of Court on the modes of service and summons have not been amended to take into consideration the recent technological advances in communication, particularly those provided by the Internet. The modes of service and summons under the same rules are still grounded in personal service, by mail, by substituted service, and in the case of defendants whose whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon them “by publication in a newspaper of general circulation and in such places and for such time as the court may order” (Rule 14, Section 14).

Ms. Evelyn Cuasto, of UP IAJ introducing Dr. Atty. Noel G. Ramiscal, last Dec. 2, 2015

Ms. Evelyn Cuasto, of UP IAJ introducing Dr. Atty. Noel G. Ramiscal, last Dec. 2, 2015

Dr. Ramiscal is of the opinion that service of court process via the Internet, particularly through social media, is a very timely, effective, efficient means of service that will in fact give effect to the Philippine Constitution’s due process clause in its Bill of Rights, and will complement the rules on service and summons under the Rules of Court. He has always maintained that “such places” which Rule 14, Section 14 mentioned should be broadly construed to include the Internet, or “cyber places” where real people meet and interact virtually, with oftentimes real tangible and intangible results.

Furthermore, Rule 14,

SEC. 15. Extraterritorial service.—When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer (bold italicized emphasis supplied).

must also be taken to accommodate service of process via the Internet as another “sufficient” manner of service.

Dr. Ramiscal has always held that service of process through social media may even be more effective and can actually give “real” notice to a party as opposed to the traditional modes of service that the Rules of Court expressly provide. In this day and age, where almost anyone with Internet access will have some form of social media account, particularly Philippine citizens who are considered (in a 2013 survey) as the 6th most connected peoples in the world, and a text messaging force to be reckoned with (consider Philippine beauty pageant contestants winning photogenic awards in international beauty pageant contests through texts), Philippine courts, especially the Supreme Court, cannot ignore or close their eyes to the massive potential of the internet as providing actual real notice to elusive parties. It must also be emphasized that Philippine newspapers’ sales of their physical trade is on the decline, and in fact, they have now established online presences to remain competitive and relevant.

Other lawyers who attended Dr. Atty. Ramiscal's Dec. 2, 2015 lecture on Ethics and Competence of Cyber Judges at UP Law Center, Diliman

Other lawyers who attended Dr. Atty. Ramiscal’s Dec. 2, 2015 lecture on Ethics and Competence of Cyber Judges at UP Law Center, Diliman

Instead of publishing service through these papers, serving court or legal processes to social media accounts of targeted parties would be more direct and most likely to be received by the parties which would give them the real opportunity to respond. Dr. Ramiscal gave some of the mechanisms that must be featured in this type of service. But it is the Philippine Supreme Court that should lay down the parameters of the cyberservice of legal processes.

If the Philippine courts would allow cyberservice of process through social media, it will join the ranks of “enlightened” countries that include Australia, New Zealand, Canada, the United Kingdom and some states in the U.S.

Some lawyers who attended Dr. Atty. Ramiscal's Dec. 2, 2015 lecture on Ethics and Competence of Cyber Judges at UP Law Center, Diliman

Some lawyers who attended Dr. Atty. Ramiscal’s Dec. 2, 2015 lecture on Ethics and Competence of Cyber Judges at UP Law Center, Diliman

To rephrase the decision of a U.S. court in New England Merchants National Bank v. Iran Power Generation & Transmission Co.:

Courts . . . cannot be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper or steam ships. . . . No longer must process be mailed to a defendant’s door when he/she can receive complete notice at a social media space he or she can access and control at any electronic terminal at any part in the world, while the door to his/her castle is steel and bolted shut and his/her physical self is nowhere to be found (bold italicized rephrasing supplied by Dr. Ramiscal).

Dr. Ramiscal would like to express his gratitude to the UP IAJ and its wonderful staff for giving him this chance to share his insights, experience and research into a topic that can no longer be ignored: what should cyber judges know about the intersections between IT and the law. He would also like to extend his utmost gratefulness to the over 150 strong lawyers who graced his lecture, who came from different parts of the country, including his former colleagues at Punongbayan & Araullo (Atty. Nigel Avila and Atty. Nimfa Dumalig) and a grand man of Law and Politics, Atty. Bono Adaza. This group was truly supportive. God Thanks to you all!

LAWBYTE 104: THE ILLEGAL USES OF BITCOIN, COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL

In his Mandatory Continuing Legal Education (MCLE) lectures for the lawyers of the Securities and Exchange Commission (October 15, 2015), the Office of the Solicitor General (October 8, 2015) and the Bangko Sentral ng Pilipinas (October 2, 2015), and his lectures for the law students of three Cebu universities (November 18, 19, 20, 2015) Dr. Atty. Noel G. Ramiscal discussed some of the technical features of the cryptocurrency called Bitcoin. This virtual currency is already available in the Philippines since 2014. Currently the Philippine online Bitcoin exchanges are unregulated by any Philippine government agency. This may be an unfortunate circumstance when Philippine Bitcoin users realize that it is a hypervolatile currency that can rise in value of up to U.S. $1,200 per Bitcoin or down to $0.00 when an exchange loses all its Bitcoins due to hacking which is what happened to the Mt. Gox exchange in Japan in 2014.

Bitcoin for BSP, Dr. Atty. Noel G. Ramiscal, Oct. 2, 2015

Bitcoin for BSP, Dr. Atty. Noel G. Ramiscal, Oct. 2, 2015

But even with the fall of Mt. Gox, Bitcoins continue to be popular for several reasons, chief of which are three. First, since Bitcoins are mined using a peer-to-peer system software, they can be transferred almost instantaneously to any part of the world, to any digital wallet, that mined them or bought them without the delay associated with traditional money wire transfers. The second, and the most attractive reason is the anonymity provided to the user/miner/seller/buyer. Cryptocurrencies like Bitcoins are designed to be as good as cash, without requiring the user to divulge his/her identity or any information pertaining to the transaction. And third, since Bitcoin transactions are not regulated by any third party/agency, the usual reporting and transaction costs are not present.

Bitcoin currently has legal uses. It could be used to purchase items from some Philippine stores (e.g., Bench reportedly accepts Bitcoins as payment). It could be used to make donations. It could also be used for investment purposes. But the selling point in the Philippines is that Bitcoins can be used for overseas money remittances due to the ease and small costs of transaction in comparison with other established money transmitters.

Rightly or wrongly, Bitcoins have been associated with the dark, netherworld of the Internet. It is the most popular cryptocurrency accepted in internet black markets like Silk Road, where combined with other secure mechanisms employed by the denizens of these markets, the digital trail for these transaction are almost impossible to trace. Bitcoins are employed as mode of payment for contract killings, online child pornography, stolen credit cards, fictitious IDs, illegal drugs, and there is even anecdotal evidence that these are used in human trafficking. In his MCLE lecture at the SEC, one of their knowledgeable lawyers revealed that the Philippine Drug Enforcement Agency (PDEA) has verified that Bitcoins are used by Philippine illegal drug traffickers. In his lecture for South Western University, he cited international reports that bitcoins are also used to fund global terrorism.

One of the suggestions of Dr. Ramiscal is to look at Philippine bitcoin exchanges which target the Philippine multi-billion dollar remittance market kept alive by the remittances of our Philippine overseas workers, as money transmitters and regulate them as such. Another suggestion of Dr. Ramiscal is to look at how Philippine Bitcoin users use the money. If they buy Bitcoins for investments, then their gains should be reported and taxed. The Philippine SEC should probably consider if Bitcoins are a form of “security” that it can regulate. While for now, they are not illegal per se, Bitcoins have been banned in China and Russia because they can destabilize the local currency.

In the family law arena, there is also evidence that proves that Bitcoins are utilized by tech savvy spouses to hide their monetary assets from their spouses and children. This is especially crucial in the dissolution of the marriage and in the ensuing division of the marital assets of whatever property regime the spouses had established during their marriage under Philippine laws. It may also affect the settlement of estates and the legitimes of the legal heirs who survive a Bitcoin user.

Bitcoin for SEC, Dr. Atty. Noel G. Ramiscal, Oct. 15, 2015

Bitcoin for SEC, Dr. Atty. Noel G. Ramiscal, Oct. 15, 2015

Dr. Ramiscal wrote something about this type of cryptocurrency in his book “Cryptology: The Law and Science of Source Codes and Electronic Secrets”. Philippine lawyers should take the time to know the technical intricacies of this virtual currency and how to discover it, to serve their clients better.

Many thanks to the UP IAJ, the SEC, the OSG, the BSP and the SWU. Especial thanks to the fabulous Atty. Celia Sandejas (a fellow MCLE lecturer) and some of the gorgeous BSP lawyers that truly appreciated Dr. Ramiscal’s lecture. Deo Gratias!

LAWBYTE 103: A “SECOND LIFE” FOR CYBER LAWYERS: SEC (COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL)

Dr. Atty. Noel Guivani Ramiscal was quite thrilled to receive his third invitation to lecture at the Mandatory Continuing Legal Education (MCLE) seminars for the lawyers of the Philippine Securities and Exchange Commission (SEC). In his October 15, 2015 MCLE lecture, Dr. Ramiscal discussed the trends in ethics and legal practices of lawyers that utilize the internet and internet innovation tools to better and further their practice, both in real time and in virtual time.

Dr. Atty. Noel G. Ramiscal in his MCLE Lecture for the SEC, Oct. 15, 2015

Dr. Atty. Noel G. Ramiscal in his MCLE Lecture for the SEC, Oct. 15, 2015

In his portion on e-discovery of e-data, Dr. Ramiscal emphasized several valuable sites for the legal cyberpractitioner who is trying to find the so-called “cyber dirt” or incriminating e-data against his/her opponent. Dr. Ramiscal lauded the SEC as one of the truly effective government agencies that address and combat fraud and its website contains a veritable trove of useful information that Dr. Ramiscal had used in the past to expose corporate fraudsters to his clients and friends.

One of the most interesting portions of his lecture that elicited a lot of reaction is his discussion of virtual worlds being used by lawyers to promote themselves online, or to serve as training and even meeting platforms. The development of three dimensional virtual worlds was gladly embraced by online gamers and enthusiasts, who are for the most part, young people, who grew up with X-boxes and the World of Warcraft. The NSA has recently released some findings that these 3D virtual worlds are quite popular with cybercriminals as well, as a gateway point for meeting other criminals and for making deals.

Enterprising lawyers have also jumped on the bandwagon. The most popular virtual world for lawyers is “Second Life” which is created by Linden Labs. Signing-up is free and one must download the software. Everything in Second Life is created “in-world” and because it is three dimensional, the feelings and sensation in participating in Second Life activities can seem so real that other people have literally forsaken their “real” lives for their “Second” lives, leading to real time divorces.

Attorney Benjamin Duranske founded the Second Life Bar Association as a way for lawyers from all over the world who are Second Life inhabitants to meet socially and professionally and to advertise their services to Second Life inhabitants. Many of the biggest corporate firms in the world have Second life presences. This virtual world has its own currency, the Linden, which could actually be exchanged for U.S. dollars. Savvy legal practitioners are able to translate their virtual presences into real cash by securing big time clients in Second Life.

Some SEC Lawyers who attended Dr. Ramiscal's MCLE lecture, Oct. 15, 2015

Some SEC Lawyers who attended Dr. Ramiscal’s MCLE lecture, Oct. 15, 2015

Of course, ethical issues abound concerning the practice of law in Second Life. Matters concerning the appearance of a lawyer’s avatar (the online persona of the lawyer), advertising, solicitation and virtual contact with clients, and taxation of the Linden are interesting issues that Second Life lawyers discuss in their Second Life Continuing legal Education seminars held “in-world”. And for the committed virtual law firms and lawyers that are after cutting their overhead costs, Second Life offers the virtual functionality of conferring with their clients from any part of the world, “in-world” which could truly save so much money for their clients.

Other SEC Lawyers who attended Dr. Ramiscal's MCLE lecture, Oct. 15, 2015

Other SEC Lawyers who attended Dr. Ramiscal’s MCLE lecture, Oct. 15, 2015

The Philippine Supreme Court and bar associations have yet to weigh in on the challenges that cyber law practice presents to the Philippine legal profession and give some guidelines.

Dr. Ramiscal is probably the first, and currently the only Philippine lawyer that offers a whole lecture devoted solely to legal/ethical issues for cyberlaw practitioners in the Mandatory Continuing Legal Education seminars. He started doing this way back in 2011, for the University of the Philippine Institute of Administration of Justice (UP IAJ), and every year, new technological developments or new applications of existing technologies to the legal profession abound. He has taken it as his bounden duty to incorporate these matters into his lecture so as to give the attendees some new insights and information into practising “cyberlaw”. He is grateful to the UP IAJ for giving him the great opportunity to share his knowledge and insights to his fellow lawyers, and on this occasion, he is filled with gratitude to the Securities and Exchange Commission MCLE Committee for inviting him back. In Dr. Ramiscal’s experience, the SEC lawyers are truly one of the best and helpful bunch of Philippine lawyers one could possibly interact with.

LAWBYTE 102: THE ETHICAL IMPLICATIONS OF JUDGES’ CYBER FRIENDSHIPS WITH LAWYERS: COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL

Dr. Atty. Noel G. Ramiscal gave a lecture on “Judicial Ethics in Cyberspace” to what is probably one of the liveliest groups of lawyers/participants in a Mandatory Continuing Legal Education (MCLE) seminar last October 22, 2015 at the UP Law Center, Bocobo Hall. It was a particularly remarkable occasion for Dr. Ramiscal because it was attended by several lawyers with whom he had pleasant experiences in the past like Atty. Kim Baltao, and also by one of the staunchest advocates for clean electronic elections, Congressman Bono Adaza.

Dr. Atty. Noel G. Ramiscal with legal luminary Atty. Bono Adaza, Oct. 22, 2015

Dr. Atty. Noel G. Ramiscal with legal luminary Atty. Bono Adaza, Oct. 22, 2015

It was also timely because the Implementing Rules and Regulations of the 2012 Cybercrime Prevention Act (R.A. 10175) was deposited about a month ago with the UP Office of the National Administrative Register, apparently signifying the effectivity of this law (that Dr. Ramiscal has questioned time and time again) which established the cybercrime courts in the Philippines.

While none of the lawyers who attended the lectures are judges, most, if not all of them have had to, or continuously deal with judges in their professional capacity, either as prosecutors, private defense counsels, or court attorneys. Dr. Ramiscal, in his lecture apprised the lawyers of several ethical developments concerning judicial deportment in different countries. He gave examples of judges being fired or being forced to resign because of their unethical and even illegal conduct or actuations against lawyers and parties in their cases, which have been captured by electronic devices, or which they have committed using these e-devices or computing systems they have access to in their professional or personal capacity. The 2014 admonition of the Philippine Supreme Court of Judge Maria Cecilia I. Austria (A.M. No. RTJ-09-2200, April 2, 2014) due to her improper posting in the now defunct “Friendster” site of a seductive/suggestive photo of herself with the apparent purpose of finding a compatible partner pales in comparison to some of the downrightly distasteful and even bizarre online actions of several judges in other jurisdictions. For example, Dr. Ramiscal discussed the case of Seamus McCaffery, a Pennsylvania Supreme Court Justice, who sent or received more than 200 emails containing pornography or sexually explicit content between late 2008 and May 2012 to his fellow Justices, lawyers and judicial staff. He attempted to dismiss his behaviour by releasing an official statement that his “coarse language and crude jokes” were a normal part of his time serving as a police officer and as a Marine. “That’s not an excuse, just a fact”. He decided to step down last year to prevent an ethics investigation and to keep his pension.

Dr. Ramiscal informed the lawyers of several developments that pertain to online friendships between judges and lawyers, which may be relevant to those who have judges as “friends” in their social media accounts.

Some of the lawyers that attended Dr. Ramiscal's Oct. 22, 2015 MCLE lecture

Some of the lawyers that attended Dr. Ramiscal’s Oct. 22, 2015 MCLE lecture

In 2012 the International Bar Association released the results of a study it conducted of 47 jurisdictions, excluding the Philippines, relative to the “The Impact of Online Social Networking on the Legal Profession and Practice”. Due to this study, the IBA released the “International Principles on Social Media Conduct for the Legal Profession” in 2014. The 2012 study’s value cannot be overemphasized. It was the first multi-jurisdictional study that among others, took into consideration the online friendships between lawyers and judges. Almost 70% of the respondents who were asked whether they consider it acceptable for lawyers and judges to have each other as contacts on online social networking sites, said it was proper. Of these, almost half felt that it is still acceptable to be online friends with judges before whom they appear in court proceedings.

Other lawyers that attended Dr. Ramiscal's Oct. 22, 2015 MCLE lecture

Other lawyers that attended Dr. Ramiscal’s Oct. 22, 2015 MCLE lecture

The Republic of Malta has actually prohibited judges from joining any online social networking sites, let alone be online friends with lawyers. Different states in the U.S. have different positions on this matter. Florida and Oklahoma prohibit judges from befriending lawyers who appear before them. New York and Kentucky allow such friendships with certain reservations or qualifications. Some legal ethicists opine that the nature of the online friendship must first be examined before ruling on any judicial impropriety.

There is currently no rule on cyberfriendships between lawyers and judges in the Philippines. But based on the Philippine Supreme Court decision on Judge Austria, it is clear that the court allows judges to participate in social media sites. What it does not allow are instances where the judges’ use of these sites would compromise the integrity and independence of the judiciary through the online antics of judges.

Like his lecture on Ethics for cyberlawyers, Dr. Ramiscal is the first and only MCLE lecturer that has one whole lecture dedicated solely to issues concerning the competence and utilization of internet tools by judges. He would like to thank the UP Institute of Administration of Justice for giving him this grand opportunity to share his research on these matters and for the gracious lawyers who had given their animated and generous support as well! Deo Gratias!

LAWBYTE 101: THE ADVENT OF DRIVER(HUMAN)LESS INTELLIGENT CARS AND THE BECKONING OF A NEW LEGAL FIELD, COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL

In the long drive from Cubao to Nueva Vizcaya (and back), where Dr. Atty. Noel G. Ramiscal delivered several Mandatory Continuing Legal Education (MCLE) lectures for the Integrated Bar of the Philippines, Nueva Vizcaya Chapter, Dr. Ramiscal was utterly grateful to the graceful and precise maneuverings of the Victory Liner Bus drivers, especially through the steep landslide prone areas of this province.

In preparing for one of his lectures, Dr. Ramiscal decided to tackle one of the truly “hot” and trending topics in cyberlaw, which is that of smart cars that can ferry humans and goods through smooth or treacherous terrains, without the need of human assistance. The notion of intelligent cars driving themselves into some automated highway systems have been around since the late 1930’s when General Motors introduced this concept in the 1939 World Fair. 50 years later Carnegie Mellon engineers successfully steered an Autonomous Land Vehicle In a Neural Network (“ALVINN”) through a roadway utilizing camera and laser range finder images. Almost two decades after that, vehicles that won in the 2004, 2005, and 2007 Grand Challenges of the Defense Advanced Research Projects Agency (“DARPA”) were based on the ALVINN prototype. Google’s driverless vehicles, which were shown in the 2013 film “The Internship” underwent a makeover in 2015 and are now plying streets in the U.S. with no record of any serious crash incident [see Thierer and Hagemann, REMOVING ROADBLOCKS TO INTELLIGENT VEHICLES AND DRIVERLESS CARS, Wake Forest Journal of Law and Policy, June, 2015, 339].

Dr. Atty. Noel G. Ramiscal's lecture on Social Media E-Discovery for IBP Nueva Vizcaya, September 9, 2015

Dr. Atty. Noel G. Ramiscal’s lecture on Social Media E-Discovery for IBP Nueva Vizcaya, September 9, 2015

The race to win the hearts, minds and purses of the travelling/commuting public has been on the rise, with BMW and Mercedes Benz coming up with rival luxurious prototypes of these smart cars which they foresee will be the next wave of technology that will be adopted by consumers in the fashion of smartphones and android tablets. As shown in a video presented by Dr. Ramiscal, these cars are so intelligent that they could find parking spaces for their busy/preoccupied owners once they alight from the cars, and these cars can parallel drive flawlessly. Smart cars are foreseen to be the answer to the commuting challenges of people who do not drive, those who are incapacitated to drive, elderly people, children and people with special needs. What is more, these smart cars are, from the pieces of evidence gathered by the vehicle industries worldwide, better than human drivers. The Eno Center for Transportation projected that in the U.S. alone, the annual benefits of “50% market penetration of driverless cars (that is, 50% of all vehicles on the road being fully autonomous vehicles) are estimated to include 9600 lives saved, almost 2 million fewer crashes, close to $160 billion in comprehensive cost savings, a 35% reduction in daily freeway congestion, and almost 1700 travel hours saved. Even at the low estimate of 10% market penetration (that is, for every nine manual cars on the road there is one driverless vehicle), “this technology has the potential to save over 1000 lives per year and offer tens of billions of dollars in economic gains, once added vehicle costs and possible roadside hardware and system administration costs are covered” (cited in Thierer and Hagemann).IBP NUEVA VIZCAYA LAWYERSIBP NUEVA VIZCAYA LAWYERS 3IBP NUEVA VIZCAYA LAWYERS 2

Despite these projections, are these driverless cars legal? In the U.S., several states have passed laws that still require a licensed human driver to be in the cars and navigate them in case they ran awry. Some states require that a manual override feature that is accessible to the human driver must be in the car. From these indications, there is still legislative hesitance about the over-all acceptability of humans relinquishing total control to the intelligent car’s computing system. This hesitation may be addressed to some extent with the current development in the vehicle to vehicle (V2V) communications platforms that some companies are pushing for.

Aside from these, the advent and penetration of smart cars in the real world markets would displace most, if not all the human drivers and chauffeurs who rely on their driving skills to earn a living. They will go by the way the horse and buggy carriage drivers went over a century ago (except for the current “kotseros” in Quiapo and Intramuros that eke a living from vendors and tourists). As pointed out by Dr. Ramiscal in this seminal lecture of his, legal definitions, insurance liability, torts concepts, criminal law, security and privacy standards that govern providers and manufacturers of these smart cars and the consumers/commuters will have to be re-written, re-adjusted and re-written some more. Ethical issues concerning assigning economic values to software algorithms that decide who will live and who will die in crash situations will have to be confronted. This is a new legal field that will beckon to new and enterprising lawyers who are tech savvy and insightful enough to put themselves ahead in the game.

Dr. Ramiscal desires to give his full appreciation to the IBP National and the IBP Nueva Vizcaya lawyers, who gamely attended, listened to, and participated in his MCLE lectures in the span of two days that are filled with new developments in the Information Technology and Communications fields and their intersections with diverse areas (explored and largely unexplored until now) in the Law.

IBP Nueva VIzcaya Pres. Atty. Leslie Costales introducing Dr. Ramiscal, September 9, 2015

IBP Nueva VIzcaya Pres. Atty. Leslie Costales introducing Dr. Ramiscal, September 9, 2015

Especial thanks to the dashing and dynamic IBP Nueva Vizcaya Chapter President!

Dr. Ramiscal also would like to note the generosity of the IBP Nueva Vizcaya Chapter in billeting him at the Saber Inn which was unpretentious,

IBP Nueva Vizcaya, Saber Inn

IBP Nueva Vizcaya, Saber Inn

IBP Nueva Vizcaya, Saber Inn, Dr. Atty. Noel G. Ramiscal posing in front of QUADRO CAFE, September 9, 2015

IBP Nueva Vizcaya, Saber Inn, Dr. Atty. Noel G. Ramiscal posing in front of QUADRO CAFE, September 9, 2015

IBP Nueva Vizcaya, Saber Inn, Dr. Atty. Noel G. Ramiscal posing in front of QUADRO CAFE, September 9, 2015[/caption] commodious, comfortable and which has certainly one of the best restaurants with unbeatable value and accommodating staff (Quadro Cafe) in the Philippines. He is especially fond of their beef with ampalaya, chicken wings, sinigang na hipon, chow fan/chorizo rice and puto bumbong, the flavors of which pleasantly linger in the palate! Deo Gratias!

LAWBYTE 100: THE RIGHT AGAINST SELF-INCRIMINATION IN THE MIDST OF CYBER INNOVATIONS, Copyright by DR. ATTY. NOEL G. RAMISCAL

The dizzying pace of technological developments, particularly in software and machines that could capture or be embedded with sensors that can record and analyze human information, or data that could be collected from human subjects without any apparent intrusion or awareness of their subjects, is an enormous legal challenge for privacy and human rights activists, as well as for lawyers who have to contend with various sources of electronic data and their presentation in judicial or quasi-judicial bodies. Dr. Atty. Noel G. Ramiscal brought this to the fore in his several Mandatory Continuing Legal Education (MCLE) lectures for different chapters of the Integrated Bar of the Philippines which included the Parañaque, Pasay, Las Piñas and Muntinlupa, the Nueva Vizcaya and the Iloilo chapters.

IBP PPLM VP Atty. Paul Alcudia introducing Dr. Atty. Noel G. Ramiscal, September 4, 2015

IBP PPLM VP Atty. Paul Alcudia introducing Dr. Atty. Noel G. Ramiscal, September 4, 2015

In the cyberage, the electronic data privacy right and the right against self-incrimination of a human being are two different rights that are interrelated due to the fact that they arise from a human source. The Philippines has a Data Privacy law (R.A. 10173) that was passed in 2012, but for more than three years now, this law has not been implemented through any Implementing Rules and Regulation. The National Privacy Commission the law created lies inutile under the Office of the Philippine President. Even if the law appropriated money for its establishment, it has yet to be operationalized. This has had a deleterious effect on industries that rely on data processing and data management, including the BPOs. What is more, there is no guidance coming from the Executive, Legislative and Judicial branches of the government as to the proper appreciation and handling of sensitive personal information that includes health information and other pieces of information, that are processed in multifarious electronic devices, which in the wrong hands could lead to the damage and injury of the person affected.

Dr. Atty. Noel G. Ramiscal's MCLE Lectures for IBP PPLM

Dr. Atty. Noel G. Ramiscal’s MCLE Lectures for IBP PPLM

An instance of a potential evidentiary question would arise in considering whether or not certain pieces of data generated by, or culled from human beings, are testimonial in nature, and thus could be subject to objections based on the right against self-incrimination.

Consider pattern locks in mobile phones and other devices that rely on certain hand movements known only to the users, which are tied to algorithms that these devices recognize, which result in their operation. Could these be in the same category as passwords or decryption keys, which in several U.S. cases have been determined to be “products of the mind”, and thus give the arrested person the right to object to their production?

Many e-devices like tablets and PCs are equipped with facial recognition software. They are opened by the user exposing his/her face to the device. It could be argued that a person subject to an arrest warrant, and whose e-devices are subject to a search warrant cannot deny the police his/her face to open the e-devices which could expose his/her criminal activity, the argument being the face is not a testimonial piece of evidence. Like a thumbprint, it is a mere biometric lock that reveals nothing by way of a “testimony” or evidence that is not already known by the police.

However, what about technologies that scan not merely the face, but the data about the regions of the face’s temperature, eye blinks, heart rates, body movements, to spot deceptive or suspicious behaviour (most of which are beyond the observation capacity of the police), and based on these, provide law enforcement agents with cause to arrest a person? These “pre-crime” technologies are now utilized in airports and even in employment situations.

Some of the IBP PPLM lawyers who attended Dr. Ramiscal's lectures, September 4, 2015

Some of the IBP PPLM lawyers who attended Dr. Ramiscal’s lectures, September 4, 2015

But probably the most exciting and horrifying technological developments (depending on how one looks at it) center on machines that could actually read and print the thoughts of a person’s mind. This might not be a far- fetched possibility given the advances made on functional magnetic resonance imaging technologies.

As of now, these interesting issues have not been resolved, nor even apparently discussed in the Philippine setting. It is thus the mission of Dr. Ramiscal in his lectures to bring these issues to the attention of the lawyers, who may in the future be able to help resolve the evidentiary and Constitutional rights quagmires these technologies bring. Dr. Ramiscal would like to thank the IBP National, and the IBP PPLM, IBP Nueva Vizcaya and IBP Iloilo and UP IAJ for this opportunity given to him. Especial thanks to Atty. Paul Alcudia, the noble and kind IBP PPLM VP, and one time classmate of Dr. Ramiscal in UP Law, and to all the beautiful and supportive lawyers of IBP PPLM!

JUDICIAL COMPETENCE AND ETHICS IN THE CYBERAGE (COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL)

Dr. Atty. Noel G. Ramiscal has been desiring to lecture on what it takes to be a competent and ethical judge in the cyber world, ever since the Philippine Cybercrime Prevention Act was passed in 2012. That law decreed the creation of cybercrime courts that are mandated to hear the offenses covered by the law. It was not clear if members of judiciary were consulted about this, or even if the legislators actually did research on the training and capacity of Philippine judges to handle cybercrime cases. What is clear is that as of August 25, 2016 [as confirmed by Dr. Ramiscal with the University of the Philippines Office of the National Administrative Register (UP ONAR)], this law is not yet effective because its Implementing Rules and Regulations (IRR) had not yet been promulgated by the Department of Justice, the Department of Interior and Local Government and the Office of Information Communications and Technology in the Department of Science and Technology, and no certified copies of such IRR had been filed with the UP ONAR.

So when the UP Institute of Administration of Justice (IAJ) invited Dr. Ramiscal to debut his lecture on “Judicial Competence and Ethics in the Cyberage”, for its Mandatory Continuing Legal Education (MCLE) seminar on August 25, 2015, he eagerly accepted. This was the first MCLE lecture given under the auspices of the UP IAJ that focused solely on the use of technology by judges in their professional and personal lives and the legal implications of such usage.

Dr. Atty. Noel G. Ramiscal at UP J. Bocobo Hall for his UP IAJ MCLE Lecture, Aug. 25, 2015

Dr. Atty. Noel G. Ramiscal at UP J. Bocobo Hall for his UP IAJ MCLE Lecture, Aug. 25, 2015


It is incontrovertible that the courts, including the Philippine Supreme Court, have increasingly utilized internet resources in their decisions and dispositions of the cases before them. Dr. Ramiscal discussed the perils of internet extrajudicial researches made by judges and law clerks as to how they can impact the due process rights of parties who were not allowed to present, examine, or contest online data that the judges or their clerks have already seen. This type of research should be properly regulated by the Philippine Supreme Court because even if these internet resources were not made part nor acknowledged in the decision itself, they may have already influenced or predisposed the judge to rule on the case in a certain way. Guidelines should also be formulated by the Supreme Court and the PHILJA as to the proper indicia of authenticity and reliability of internet resources and as to the proper handling of “link rot” of internet resources.
Some lawyers who attended Dr. Ramiscal's Aug. 25, 2015 UP IAJ MCLE lecture

Some lawyers who attended Dr. Ramiscal’s Aug. 25, 2015 UP IAJ MCLE lecture

The ideation of a judge as being competent, credible, independent and with moral integrity can best be seen on the decisions that they produce. On this score, Dr. Ramiscal apprised the audience of eighty lawyers the issues at stake in online judicial plagiarism, taking as his framework the Philippine case against Supreme Court Associate Justice Mariano C. Del Castillo and his unnamed court researcher [A.M. No. 10-7-17-SC, October 15, 2010, IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO], who were accused of plagiarizing three articles found in an online legal repository (Westlaw) that the Supreme Court subscribes to. He will write at length about this in another issue. Judges must, in dealing with cyberlaw issues, also be responsible and taken to task for their erroneous decisions because these can deleteriously affect the lives and liberties, not only of the parties involved, but future stakeholders dealing with the same issues. Major areas for improvement in the Philippines would be the correct understanding of handling electronic evidence and discovery issues of e-data. The Philippine Rules of Electronic Evidence has not been amended since 2002 and some of its provisions are just plain wrong from a technological and legal standpoint.

Other lawyers who attended Dr. Ramiscal's Aug. 25, 2015 UP IAJ MCLE lecture

Other lawyers who attended Dr. Ramiscal’s Aug. 25, 2015 UP IAJ MCLE lecture


In this lecture, Dr. Ramiscal tackled some of the most important issues concerning the use of technology by the courts, in particular, service of legal process via social media and the e-filing system in the Supreme Court which he opined lacked a secure technological foundation. He then examined some of the crucial concerns relative to the use of technology and social media by judges, not only in the court, but also in their personal lives (e.g. Facebook friendships, Facebook likes, LinkedIn connections) that may seriously affect or even eclipse their professional standing and credibility. In his “Roll of Judicial Dishonor” Dr. Ramiscal showed examples of judges from the U.S.A., Canada and the Philippines who have sullied the image and ideations of judges as persons of high moral and intellectual integrity with their actions that ranged from inappropriate posting of their personal images (one of whom had nude pictures that can be accessed in the public online domain), to unbecoming sexting, to outrageous, sexist, racist emails and online remarks, and violent displays of their temper caught on social media.

To conclude his lecture, Dr. Ramiscal discussed some of the developments in other jurisdictions that are intended to help judges deal with cyberlaw issues, as well as their utilization of social media. Unfortunately, there appears to be no parallel moves to enlighten and empower Philippine judges, particularly those who will preside in future cybercrime courts, to be competent and ethical administrators of Justice in the cyberage.

Dr. Ramiscal would like to thank the UP IAJ, Atty. Armand Arevalo, Ms. Evelyn Cuasto, Raffy and Ariel, and to all the splendid lawyers who were genuinely interested in this lecture that Dr. Ramiscal debuted for UP IAJ. It was also truly a great pleasure to see Atty. Dulce Punzalan (Dr. Ramiscal’s classmate in UP Law) as well as meet new friends (Atty. Manalastas and Atty. Javier) in this event!

ON SOCIAL MEDIA E-DATA TRENDS AND THE FACEBOOK EVIDENCE OF THE ALLEGED MILITARY ABDUCTORS OF JONAS JOSEPH BURGOS (COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL)

Dr. Atty. Noel G. Ramiscal was thrilled to get an invitation to do two lectures for the Integrated Bar of the Philippines (IBP) Chapter in Bulacan, for the Mandatory Continuing Legal Education (MCLE) seminars organized by the IBP National. In the morning (3 a.m.) of August 8, 2015, he set on the road from Calamba, Laguna to go to Malolos, Bulacan, to stave off the onslaught of any rain storm and traffic that might impede his reaching the Hiyas ng Bulacan Convention Center, Balagtas Hall, on time. As it turned out, he was early and was able to catch the informative lectures of Atty. Ted Villanueva.