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.

Dr. Atty. Noel G. Ramiscal IBP Bulacan MCLE Lecture August 8, 2015 on Social Media

Dr. Atty. Noel G. Ramiscal IBP Bulacan MCLE Lecture August 8, 2015 on Social Media

For his first lecture, Dr. Ramiscal apprised the attendees of several trends in the usage of social media in the legal arena. IT savvy lawyers from both sides of the fence can utilize social media evidence to devastating effect. Social media data is utilized now to identify witnesses, as smoking guns in criminal cases, to establish motive, opportunity, and state of mind of an accused, to determine the proper sentence of a convicted felon and to monitor for parole or probation violations. Defense counsel can use evidence from Facebook to find exculpatory evidence or material to impeach a witness.

Dr. Atty. Noel G. Ramiscal emohasizing a point in his August 8, 2015, IBP Bulacan, MCLE Lecture on Social Media

Dr. Atty. Noel G. Ramiscal emohasizing a point in his August 8, 2015, IBP Bulacan, MCLE Lecture on Social Media

Social media is becoming quite valuable in family law, particularly custody proceedings where the fitness of the parents is the most crucial issue. For example in one case, a mother admitted in her MySpace entries that she engages in sado-masochism and uses drugs and will use drugs when her daughter would be asleep. In several cases, some parents have maintained several social media accounts with conflicting views about their parental responsibilities. One mother had a MySpace account which claimed she is a fulfilled wife and mother of beautiful children, and another MySpace account wherein she held herself as single and not desiring children. One father’s parental rights were terminated by the court where social media evidence was presented evidencing his infidelity and not wanting to have any children.

Social media data is also mined in labor cases, particularly in unlawful terminations and discriminations brought against employers by their employees. In one case brought against the famous coffee chain Starbucks, the illegal dismissal and sexual, racial and religious discrimination charges brought about by a female employee was dismissed due to the postings of the employee in her MySpace accounts like this one: “Starbucks is in deep sh[#]t with GOD!!! … I thank GOD 4 pot 2 calm down my frustrations and worries or else I will go beserk [sic] and shoot everyone ….”

In the Philippine context, Dr. Ramiscal brought to the attention of the lawyers the human rights case brought against the former Philippine President Gloria Macapagal Arroyo, and certain government officials concerning the alleged abduction and disappearance of Jonas Joseph T. Burgos. The Supreme Court tasked the Commission on Human Rights to report anew its factual findings and recommendations to the Supreme Court on this case because the Supreme Court found the previous investigation by the PNP-CIDG, by the AFP Provost Marshal, and even by the CHR had been less than complete. This time around, evidence from Facebook surfaced in connection with the identification of some of the alleged military abductors of Burgos. The PMA BATCH SANGHAYA 2000 had a Facebook account that is open to the public which contained 244 PICTURES. This Facebook account was unearthed as a Google search was conducted on the alleged identified abductors, and the name of one of them. A witness was shown the photos in the Facebook account and he identified two of the persons there as the alleged abductors of Mr. Burgos.

These and other developments in social media discovery were tackled by Dr. Ramiscal before a lively and supportive audience that included Attys. Tricia Santos and Fame Cruz (who scored the winning word “portmanteau”!).

Dr. Atty. Noel G. Ramiscal receiving the Certificate of Appreciation from the IBP Bulacan Pres. (Atty. Artico) and officers, August 8, 2015

Dr. Atty. Noel G. Ramiscal receiving the Certificate of Appreciation from the IBP Bulacan Pres. (Atty. Artico) and officers, August 8, 2015

Dr. Ramiscal was elated to find out that some of his schoolmates in the University of the Philippines Law School are doing prosperously well in Bulacan, including Atty. Pinky Bartolome, a bona fide thespian and the past president of the IBP Bulacan Chapter, and Atty. Francine Longid, another “artista” in the UP bunch. He was quite pleased to meet and chat with the current IBP Bulacan Chapter President, Atty. Arni Topico, and some of the officers and members, including Attys. Bobby Cruz and Samonte (who graciously lent his car and chauffeur to drive Dr. Ramiscal and his mother to the bus depot). One thing he learned about the Bulacan lawyers is their Passion for Service and Justice. Many of them (including Attys. Bartolome, Longid and Topico) are involved in international pro bono advocacies.

Dr. Atty. Noel G. Ramiscal raising the Cup of Excellence for the IBP Bulacan Lawyers August 8, 2015

Dr. Atty. Noel G. Ramiscal raising the Cup of Excellence for the IBP Bulacan Lawyers August 8, 2015

Dr. Ramiscal is quite grateful to all the IBP Bulacan officers and members for their generousity and the wonderful “pasalubongs” like the sumptuous Rosalie’s pinipig suman, Minasa, guyabano drink, and certainly one of the best tasting beefsteaks that Dr. Ramiscal tasted, from the Hapag restaurant [VEECS Catering Service], and the unparalleled “asikaso” of the IBP National staff including Ms. Arguson and Ms. Aida.

This was truly a wondrous and amazing point in the cyberlaw advocacies of Dr. Ramiscal.

To the over 1,000 strong members, a Grand Salute to the “Bulacan Lawyers(’) Unlimited Excellence”!

ON SOCIAL MEDIA’S PERILS TO PRIVACY, ITS TWO TYPES OF DISCOVERY, THE INTERNATIONAL BAR ASSOCIATION’S PRONOUNCEMENTS AND OTHER MATTERS: DR. RAMISCAL’S MCLE LECTURE FOR THE PHILIPPINE HEALTH INSURANCE CORPORATION’S LAWYERS

One of the biggest government owned and/or controlled corporation is the Philippine Health Insurance Corporation (PhilHealth), which has been at the forefront of several current news concerning alleged fraudulent practices perpetrated against it by health providers and medical practitioners.

When the University of the Philippines’ Institute of Administration of Justice (UP IAJ) invited Dr. Atty. Noel G. Ramiscal to be one of the lecturers for its Mandatory Continuing Legal Education (MCLE) seminars for PhilHealth’s 50 strong legal team (comprising of 35 lawyers and 15 legal researchers) with the topic on social media, he immediately accepted. The venue was the posh Widus Hotel and Casino at the Clark Freeport Zone, Pampanga.

Dr. Atty. Noel G. Ramiscal at WIDUS Hotel, PhilHealth MCLE lecture August 6, 2015

Dr. Atty. Noel G. Ramiscal at WIDUS Hotel, PhilHealth MCLE lecture August 6, 2015


Dr. Ramiscal’s lecture focused on the hazards of social media postings for the poster/user and on the other side, the windfall effects these postings have on their adversary. He discussed the privacy implications of the Philippine Supreme ruling on the case of Vivares et al vs. St. Theresa’s College, promulgated last September 29, 2014, which involved the Facebook posting of pictures of high school girls in their bathing suits, and other pictures of some of the same girls smoking and drinking liquor at a bar in Cebu, which were made available for public viewing. The girls were subjected to disciplinary proceedings and were not allowed to join the graduation exercises, to which their parents objected via court action. The Supreme Court made it very clear that no reasonable expectation of privacy could exist on Facebook postings unless the user intentionally and actually used the privacy settings in Facebook. Even then, the court noted that private postings can be shared or made available for the viewing of others, through the “friends” of the user without the user’s permission, thus destroying whatever expectation of privacy the user may have had in the first place.
Dr. Atty. Noel G. Ramiscal at WIDUS Hotel Macau Conference Rm, for his PhilHealth MCLE Lecture, August 6, 2015

Dr. Atty. Noel G. Ramiscal at WIDUS Hotel Macau Conference Rm, for his PhilHealth MCLE Lecture, August 6, 2015

It was in this lecture that Dr. Ramiscal discussed two different forms of discovery of social media evidence that the Philippine courts, and specially, the Supreme Court, have yet to officially recognize and promulgate rules on. One is informal discovery, which is done through the usual searches on search engines and websites by any party against an adversary for digital dirt. The other type is “formal discovery” which one party does through the court making use of the court’s power to compel the other party to produce social media evidence that are in the party’s private profile or space, or secluded from the view of the general public. Dr. Ramiscal apprised the audience of what they need to establish as the “predicate” for their production request and the bounds of legal propriety for the requests. He gave examples of acceptable requests and how courts in the U.S.A. have dealt with production requests of social media data in various ways.

Another essential area that Dr. Ramiscal discussed was the authentication of social media and how to counter hearsay arguments and arguments based on hacking/cracking attacks and fraudulent postings. One trend in this regard pertains to the “individualized information” that social media e-data contains which could be used to incriminate the user.

PhilHealth lawyers at Dr. Ramiscal's MCLE Lecture WIDUS Hotel, August 6, 2015

PhilHealth lawyers at Dr. Ramiscal’s MCLE Lecture WIDUS Hotel, August 6, 2015

Some of the PhilHealth lawyers at Dr. Ramiscal's MCLE Lecture WIDUS Hotel, August 6, 2015

Some of the PhilHealth lawyers at Dr. Ramiscal’s MCLE Lecture WIDUS Hotel, August 6, 2015

Dr. Ramiscal also discussed the 2012 survey of the International Bar Association of over sixty jurisdictions concerning the use of social media by lawyers, judges and even law students, and how such usage could legally and ethically impact on the professional dealings of lawyers who are online “friends” with judges in whose courts they appear, and even the investigations of law students’ questionable social media postings in cases where they are applying to take the bar exams.

In the case of PhilHealth, Dr. Ramiscal suggested that its legal team can investigate the social media accounts of medical practitioners and their patients in cases of suspicions of fraud. With the penchant of social media users to record all the goings on in their lives, down to the sometimes irrelevant and ridiculous details, the team can mine the social media data they can find to protect the interests of all PhilHealth members who are certainly harmed by the fraudulent monetary machinations of nefarious entities.

In closing, Dr. Ramiscal would like to thank all the wonderful PhilHealth legal team members who fully, truly and warmly appreciated his lecture (who gave positive written feedbacks), and the excellence of the PhilHealth driver (Mr. Jess Lopez) assigned to chauffeur him from Metro Manila to Pampanga and back.

ON THE OVERSIGHT IN THE APPLICATION OF THE PHILIPPINE RULES OF ELECTRONIC EVIDENCE IN CRIMINAL CASES BY THE PHILIPPINE SUPREME COURT (COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL)

Dr. Atty. Noel G. Ramiscal was fortunate enough to be invited to give two Mandatory Continuing Legal Education (MCLE) lectures for the Integrated Bar of the Philippine (IBP) Cavite Chapter, organized by the IBP National Office last July 31, 2015. As was his practice, he travelled from the province of Laguna to the conference site quite early to avoid being late, but the conditions are quite unpredictable and there was a road incident that caused a lot of bottleneck. Fortunately, the driver of the van that ferried Dr. Ramiscal was knowledgeable of all the side streets and interconnecting pathways of the variegated terrain of this prosperous province.

The IBP Cavite Chapter owned its building which was located in the Cavite Civic Center Compound that also houses some of the courts and a penitentiary.

Dr. Atty. Noel G. Ramiscal at IBP Cavite Center Bldg, July 31 2015

Dr. Atty. Noel G. Ramiscal at IBP Cavite Center Bldg, July 31 2015

It was a quaint building overflowing with lawyers. The members in this chapter exceed 1,000 and they were expecting about 39 new lawyers to join. On the day slated for the lectures an electrical wire exploded taking down the airconditioning system.
Some of the IBP Cavite lawyers who attended Dr. Ramiscal's lecture last July 31, 2015

Some of the IBP Cavite lawyers who attended Dr. Ramiscal’s lecture last July 31, 2015

It was fixed for a while and then it broke down again. It is a testament to the commitment of the lawyers to their professional development that they stayed on for the entire day up to the early hours of the evening enduring the hot and humid conditions inside and outside the building.

In his lecture on handling e-data,

Dr. Atty. Noel G. Ramiscal during his MCLE lectures for IBP Cavite July 31 2015

Dr. Atty. Noel G. Ramiscal during his MCLE lectures for IBP Cavite July 31 2015

Dr. Ramiscal canvassed and discussed the relevant Philippine laws, rules, and jurisprudence on the discovery of e-data, and concluded that there is no current legal or formal mechanism for the formal discovery of e-data in the Philippines, that could be followed in Philippine courts. He gave the audience a brief outline of the discovery processes and the legal issues connected with the discovery of e-data in the U.S.A. He also acquainted the audience of the possible penalties that may arise for any producing party of e-data that failed to put a “litigation hold” or completely observed a “preservation order” of e-data and their repositories. In his lecture on social media e-discovery, Dr. Ramiscal tackled among other things, the nature of social media data, and the fact that privacy concerns should not be mistaken, or be made an excuse for the exclusion of “private” social media data from discovery.

One significant matter Dr. Ramiscal brought to the attention of the attendees was the application of the Philippine Supreme Court of the Rules on Electronic Evidence to criminal cases.

The Rules which the Supreme Court promulgated in 2001 did not cover criminal cases. To correct this oversight, the Supreme Court issued Administrative Matter No. 01-7-01-SC, Re: Expansion of the Coverage of the Rules on Electronic Evidence, last September 24, 2002.

In the April 10, 2010 case of Rustan Ang y Pascua v. the Court of Appeals, the accused claimed that the damning electronic picture which was attributed to him should have been authenticated via the means of e-signature under the expanded coverage of the aforementioned rules. Unfortunately, and inexplicably, the Second Division of the Supreme Court held that “the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings”.
Then in March 10, 2014, the Third Division of the Supreme Court, ruled in People of the Philippines v. Enojas y Hingpit et al, that the Rules of Electronic Evidence do apply to criminal cases as a result of the 2002 Supreme Court issuance of the amendment.

It is curious to note that the “ponente” or the one who wrote the decisions in the 2010 Rustan Ang case and the 2014 Enojas case was the same Associate Justice.

During the time the erroneous Rustan Ang case served as the authority on the non-applicability of the rules to criminal cases, it caused a great ripple concerning the substantial limitations to evidentiary rights and objections the accused can raise in criminal cases involving electronic data.

The Philippine Civil Code provided that the decisions of the Supreme Court form part of the law of the land. So it would appear that the Rustan Ang decision would trump a mere 2002 administrative amendment done by the Supreme Court which this decision did not recognize.

Prior to the 2014 Enojas case, everytime Dr. Ramiscal would discuss the Rustan Ang case and its implications in MCLE lectures, he would answer lawyers who asked him if they can still use the rules of electronic evidence in criminal cases, in the affirmative. He had stated that they can do this in two ways. One, they can argue that said rules can provide some guidelines. Or second, they can place it as an issue in the criminal case itself, because there was no en banc decision, and no rule revoking the 2002 amendment. But the situation for criminal defense lawyers and their clients during this time due to the Rustan Ang case was far from ideal.

Dr. Atty. Noel G. Ramiscal with two IBP Cavite lawyers and officers, July 31 2015

Dr. Atty. Noel G. Ramiscal with two IBP Cavite lawyers and officers, July 31 2015


At the end, Dr. Ramiscal expressed his heartfelt appreciation for the IBP Cavite lawyers who stayed for the duration of his lectures, despite the humidity challenge, and for their sincere generosity and hospitality [Attys. Luna, Espiritu, Clorina, Yu and Anarna], and in particular to Atty. Lara (the tahong chips are superb!) and her assistant, Hazel. Kudos to the officers and members of this Chapter!

On Cloud Computing, Search and Seizures of E-Data, Unbundling and Other Matters: Dr. Ramiscal with the DENR Lawyers (Copyright by Dr. Atty. Noel G. Ramiscal)

Last July 14, 2015, Dr. Atty. Noel G. Ramiscal was given the opportunity to grace the Nobel Peace Conference Hall of the ICON Hotel in West Avenue, Quezon City, to share his views and research on some legal and ethical matters that confront lawyers who are trying to establish their practice on the Internet, with the lawyers of the Department of Environment and Natural Resources (DENR), Mines and Geo-Sciences Bureau, organized by the UP Institute of Administration of Justice.

DR. ATTY. NOEL G. RAMISCAL at Nobel Peace Hall, DENR MCLE LECTURE JULY142015 Icon Hotel

DR. ATTY. NOEL G. RAMISCAL at Nobel Peace Hall, DENR MCLE LECTURE JULY142015 Icon Hotel

In his Mandatory Continuing Legal Education (MCLE) lecture entitled “The Legal and Ethical Quandaries of Cyber Lawyers”, Dr. Ramiscal apprised the lawyers present of the current trends in software and mobile applications that have an impact in a practitioner’s choice of conducting online legal business. Since the DENR is a huge government agency with vast data (hard and electronic) resources, a pressing need for this agency would be the appropriate storage and retrieval of its electronic data.

DR. ATTY. NOEL G. RAMISCAL DENRMCLE Introduction JULY142015

DR. ATTY. NOEL G. RAMISCAL DENRMCLE JULY142015 Introduction

Dr. Ramiscal confirmed that some of the lawyers know and already use some form of cloud computing services. He advised them that if this is going to be done on an agency basis, there must be an appropriate review and investigation of the Service Level Agreements (SLAs) proffered by cloud computing providers to the agency. He emphasized several areas that deserve scrutiny. The service provider’s “data retention and return policy” must be examined thoroughly and must meet the satisfaction of the agency, that in case of any security breach, or any legal issue that crops in connection with the e-data of the agency, the service provider must be able to return the custody and possession of the e-data to the agency. In line with this, the DENR should be able to know where the servers of the cloud computing provider are located. This is for the purpose of determining if there are possible conflicts of law in the states where those servers are located and with the Philippine laws.

DR. ATTY. NOEL G. RAMISCAL DENRMCLEJULY142015 WITH SOME LAWYERS

DR. ATTY. NOEL G. RAMISCAL DENRMCLEJULY142015 WITH SOME LAWYERS

DR. ATTY.NOEL G. RAMISCAL DENRMCLEJULY142015 WITH SEVERAL LAWYERS

DR. ATTY.NOEL G. RAMISCAL DENRMCLEJULY142015 WITH SEVERAL LAWYERS

DR. ATTY. NOEL G. RAMISCAL DENRMCLEJULY142015 WITH OTHER LAWYERS

DR. ATTY. NOEL G. RAMISCAL DENRMCLEJULY142015 WITH OTHER LAWYERS

A pressing matter in this regard, are the possible different laws and regulations on searches and seizures of electronic data, as well as the preservation and destruction of such e-data in the servers located in the different countries. Compounding the legal difficulty is the need to scrutinize the agreements between the cloud computing provider and third parties (e.g., the owners of the servers) that are pertinent to the safekeeping, custody and preservation of the agency’s e-data. Dr. Ramiscal emphasized that signing SLAs with cloud computing providers is not a simple legal and ethical matter, where the agency’s e-data is concerned. Lawyers must strive to competently give their agency the necessary legal advice when faced with the technical and legal realities of cloud computing.

Dr. Ramiscal also dealt with issues that are relevant to the individual practice of lawyers, outside of their responsibilities to their agency. Government lawyers are given limited right to practice their profession. In some cases, the only way to serve some clients is to “unbundle” the legal services. “Unbundling” is the mode of performing certain specific legal services for a client, on a matter that does not require the full representation of a lawyer. It could be the preparation of documents or certain applications that need legal assistance, but beyond that, the client is empowered (with advice from the attorney) to do the necessary succeeding acts. Of course, this is laden with ethical obligations that lawyers must comply to safeguard the interests of their clients.

Other concerns raised by the utilization of computer technology, internet innovations and social media for the work place and personal use were discussed by Dr. Ramiscal for the benefit of the DENR lawyers.

DR. ATTY. NOEL G. RAMISCAL DENRMCLEJULY142015 WITH IBM'S WATSON

DR. ATTY. NOEL G. RAMISCAL DENRMCLEJULY142015 WITH IBM’S WATSON

He also apprised them of the latest trends in computer analytics that are now impacting the discovery of electronic evidence. These were made possible by the great strides made in the development of artificial intelligence, including IBM’s Watson, which pointed the way to the future of computer assisted reviews.

Dr. Ramiscal would like to thank the lawyers present who truly and graciously gave him their time of day and to the UP IAJ of course.

DR. ATTY. NOEL G. RAMISCAL MODELLING HIS OWN DESIGNED LEATHER BAG WITH DENR LAWYERS MCLEJULY142015

DR. ATTY. NOEL G. RAMISCAL MODELLING HIS OWN DESIGNED LEATHER BAG WITH DENR LAWYERS MCLEJULY142015

Delivering this lecture at the Nobel Peace Hall, at an “Icon”ic hotel, with a room of attentive and gorgeous lawyers, made Dr. Ramiscal feel as if he had won something!

“The Legal and Technological Developments in Cryptology” with the CDAS-ASEA (Copyright by Dr. Atty. Noel G. Ramiscal)

In the afternoon of July 9, 2015, Dr. Atty. Noel G. Ramiscal was escorted from Xavier University to the beautiful, wonderful and classy Chali Resort and Conference Center to lecture before a group of educators and administrators comprising the Council of Deans of Arts and Sciences, Arts and Sciences Educators’ Association Region 10 (CDAS-ASEA 10).

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 PRESENTATION

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 PRESENTATION

Since this is a body of academics from mostly the sciences, physics, mathematics, engineering and economics, Dr. Ramiscal’s talk on the “Legal and Technological Developments in Cryptology” aptly fitted into their program, arranged with unerring brilliance by Ms. Nathalie Igot, the CDAS-ASEA 10 Regional Coordinator and Dr. Rolito Ebaile, the CDAS-ASEA 10 Inc. President.

Dr. Ramiscal began his lecture with an exposition of different means and modes of hiding information from prying eyes and nefarious minds, concocted by humans in ancient times. He traced the development of codes from linguistic ones to the mechanical “bombes” developed during the Second World War and how the multidisciplinary field of cryptology arose with contributions from mathematics, quantum physics, quantum mechanics, biomolecular sciences and nanotechnology. While the D-Wave system is around, he apprised the educators of the most recent advances in the building of a true quantum computer that could be the real Achilles heel for any cryptography system that relies on the problem of factoring as the kernel of the system’s security. These included the study made in Yale University of tracking in real time quantum computing errors by the use of an ancilla atom, and the development by IBM of a four superconducting quantum bit circuit device built on a chip that can be used to address quantum decoherence.

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 MEMBERS

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 MEMBERS

Technological advancements like these when applied to practical devices can definitely have societal and legal impact on the security and privacy of information and the lives and freedoms of people who rely on these devices. Dr. Ramiscal explained the mechanisms under the Wassenaar Arrangement that are implemented by the States parties to the Arrangement to control and regulate the dissemination of, not only the technology but the knowledge surrounding the technology, to elements and entities within and outside these States that can potentially use them for criminal purposes. These have resulted in grave clashes between the State’s interest versus the human rights and academic freedoms of educators, students and those engaged in cryptological research. In the U.S.A. the unlicensed dissemination of cryptographic materials that exceed the minimum standards under the export controls is legally prohibited. In the U.K., the teaching of Physics by a teacher without any export license to a student from a country that is identified as a hotbed of terrorism can make the teacher liable under the U.K. Terrorism Law. In Australia, anyone who disseminates cryptologic knowledge in an online environment without any export license can be construed a supplier, exporter or provider of a Weapon of Mass Destruction (WMD) if there are reasonable grounds to believe or suspect that the recipient of such knowledge will use it to build or assist in the building of a WMD.

While the Philippines is not (yet) a member of the Wassenaar Arrangement, Dr. Ramiscal delineated the relationship between this Arrangement with the Arms Trade Treaty that the Philippines signed in 2013. He discussed how cryptology is crucially connected with conventional weapons that this Treaty regulates and how that can impact the balance of power between States.

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 SOME MEMBERS

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 SOME MEMBERS

Dr. Ramiscal talked at length about the importance of source code reviews for any ICT or security products that employ cryptologic features. He elucidated on what transpired during the 2010 and 2013 automated elections and the case rulings, highlighting certain matters that should be understood by the lay public, with respect to the procurement of the machines used in these elections and the nature of source code reviews. He also brought to the attention of the attendees certain issues that need to be threshed out in the Bitcoin online exchange sites in the Philippines, and the current e-Titling system being implemented by the Land Registration Authority, which relies on cryptography for its security.

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 WITH MS. IGOT DR. EBAILE AND MEMBERS

DR. ATTY. NOEL G. RAMISCAL CDAS JULY92015 WITH MS. IGOT DR. EBAILE AND MEMBERS

Dr. Ramiscal is most grateful to the spirited and opinionated bunch of educators who raised a lot of pertinent questions during his lecture. Thank you again to Ms. Igot and Dr. Ebaile for giving Dr. Ramiscal this wonderful opportunity to share the fruits of his research! This was memorable for Dr. Ramiscal because this was the first time that he gave this lecture to a group of educators in the sciences, and the principles and findings he discussed apparently resonated with them.

Social Media Discovery in Cagayan De Oro (Copyright by Dr. Atty. Noel G. Ramiscal)

Dr. Atty. Noel G. Ramiscal’s second MCLE lecture for the IBP Misamis Oriental Chapter, Cagayan de Oro (CDO) last July 8, 2015 revolved on the discovery of social media evidence. There is a growing trend in different jurisdictions around the world that puts social media data as an important source of proof for or against a party in almost all types of litigation. It was the perfect accompaniment for his first lecture which tackled the basic and some complex principles of electronic discovery on other pieces of electronic evidence.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015

Dr. Ramiscal began by giving a definition of social media and some statistics that put no doubt on the crucial importance of the usage of social media networks in the everyday lives of netizens. He gave several examples of online social networks (OSNs) and focused on the primary issues that affect their users legally.

OSNs like Facebook delineate content that is public and private, but these delineations are not markedly observed when it comes to criminal prosecutions or civil proceedings where the relevant content in a user’s private profile can be the subject of discovery. “Privacy” as a battle cry of embattled producing parties has been consistently shouted down by courts in the U.S., U.K., Europe and recently, even in the Philippines. The general jurisprudential trend is to deny any unqualified reasonable expectation of privacy even in private postings where the privacy of these postings has been compromised by the actuations of the user, or their Facebook “friends”. Dr. Ramiscal showed to the CDO lawyers certain techniques of e-discovery that they can employ to get the possibly incriminating content that could actually help them win their case.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY82015 SOCIAL MEDIA

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY82015 SOCIAL MEDIA

Dr. Ramiscal then delved into evidentiary issues in the admissibility of social media evidence in court. He expostulated on the various objections that could be raised including authentication and hearsay issues and how to meet them.

Since social media data like all electronic data can be subjected to spoliation or destruction by the user, Dr. Ramiscal apprised the CDO lawyers of tactics they can use to prevent the spoliation of this type of evidence. He also explained the measures they can seek against parties who have actually destroyed these e-data and their counsels who may have actually advised them or contributed to the e-data’s destruction.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015 CDO SMILING LAWYERS

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015 CDO SMILING LAWYERS

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015 LAWYERS

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015 LAWYERS

To round off his discussion, Dr. Ramiscal relayed to the CDO lawyers some legal tips in avoiding being placed in legal and ethical hot waters when it comes to approaching or “friending” any party related to any case they are involved in. Prudence, propriety and common sense are basically the rules of the day.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY 8 2015 WITH GORGEOUS CDO LAWYERS

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY 8 2015 WITH GORGEOUS CDO LAWYERS

To the attentive and most appreciative CDO lawyers who stayed through the duration of his second lecture, Dr. Ramiscal gives them his highest and warmest regards!

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY 8 2015 WITH ATTY. REY RAAGAS, IBP CHAP. PRES.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY 8 2015 WITH ATTY. REY RAAGAS, IBP CHAP. PRES.

Thank you to the IBP Misamis Oriental Chapter, the IBP National, and Ms. Arguson, for inviting him to their truly grand and “bonggacious” event! Special thanks to Attys. Raagas, Nuñez, Cuaresma, and Muchisimas Gracias to Atty. Charmine Caminao for her kind support and beautiful and brilliant presence!

Addressing and Preventing the Quagmires of Virtual Law Practice by Law Firms: Dr. Ramiscal at the Villaraza & Angangco Law Office (Copyright by Dr. Atty. Noel G. Ramiscal)

One of the firms in the Philippines that certainly practice “Big Law” in a grand manner is the Villaraza and Angangco law firm with their own building at Global Fort City in Taguig. When Dr. Atty. Noel G. Ramiscal was invited to give a Mandatory Continuing Legal Education (MCLE) lecture for the lawyers of this firm through the UP Institute of Administration of Justice last June 27, 2015, he lost no time in revamping his cyberethics presentation to cover the concerns of virtual practice by law firms. This is the second time he gave a lecture for this firm, the first being in 2013, and as always, it was a pleasant experience. The Rainmaker’s Lounge

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE272015 Lecture for the Villaraza & Angangco Law Firm

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE272015 Lecture for the Villaraza & Angangco Law Firm

where the lecture series were held was certainly tasteful and elegant. He felt at home with all the native jewelry pieces that were on display and the grand piano with the plush leather seat that he occasionally sat on during his lecture. A bronzed sculpted figure of Justice witnessed the proceedings.

Dr. Ramiscal focused his lecture on the legal and possible ethical quagmires law firms may face in the possibility of expanding their practice online. He gave examples of models of multi-jurisdictional virtual law firms (MJVLFs), some of which do not maintain any physical site or office and how they have managed to compete with the so-called “Big Law” firms. These MJVLFs are transforming the scape of legal practice with their innovative solutions to lowering the costs of access to law, without sacrificing the quality of service. Some of these firms do not hire associates, or as one put it “inexperienced lawyers” to handle client matters. These firms turn to technology solutions to answer the general needs of their clients, particularly in the creation, revision and storage of legal documents for different types of cases (See Vlotech, Directlaw, Rapidoc). Some of these firms have devoted client extranets with distinct features custom made for the needs of their clients, and some outsource messaging services (Ruby Secretary). Several firms use the portals of virtual worlds to render service or to attract clients. One such virtual world is “Second Life” where some lawyers and law firms from all over the physical world have converged to create and explore ways of practising law beyond what was thought possible several years ago.

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE172015 Lecture with other Villaraza & Angangco lawyers

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE172015 Lecture with other Villaraza & Angangco lawyers

Another major development that has arisen to answer the need for accountability in the legal industry for professional fees billed by law firms is the development of several software solutions (e.g. Rocket Matter and ViewaBill) that make the process of billing transparent to clients. Some of these are also used by in-house counsel to determine the reasonability of fees charged by outside counsel or consultant (e.g. SkyAnalytics).

All MJVLFs rely on some form of service offered by cloud computing providers, be it in the form of Infrastructure as a Service, or Platform as a Service, or Software as a Service. While cloud computing brings a lot of benefits, the possible breach of confidentiality in the privileged communications between lawyers and their clients in the documents stored in the cloud is a primary issue that no Philippine lawyer can afford to ignore. Dr. Ramiscal delineated the issues that lawyers should investigate before they sign any service license agreement with any cloud computing provider, for their benefit and the benefit of their clients.

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE272015 Lecture with the Villaraza & Angangco lawyers

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE272015 Lecture with the Villaraza & Angangco lawyers

The ease by which services can be accessed by clients from all over world via legal websites have made it also easier to facilitate and commit unauthorized practice of law (UPL). With the current move of standardizing credentials of professionals across different parts of the world, thereby making it possible to practice in different countries, the impact of this to the legal profession has not truly been studied in any comprehensive manner by any Philippine entity. While the still ineffective Cybercrime Prevention Act makes it seemingly simple to file cases against foreign lawyers whose acts of UPL amount to crimes in (the yet to be established) Philippine cybercrime courts, it is by no means settled if any judgment or order could be enforced against these lawyers in different jurisdictions. The difficulty becomes exacerbated with the rise of MJVLFs and the various ethical rules in countries that are affected by the acts of these errant lawyers.

These, and many other issues of significance to MJVLFs were discussed by Dr. Ramiscal to an appreciative and classy bunch of lawyers. Many thanks to the gracious V & A partners with whom Dr. Ramiscal had lunch with: Attys. Augusto San Pedro, Franchette Acosta, Juanito Sañosa, Thea Daep and Sylvette Tankiang, and the vivacious associates.

Navigating the Virtual Ethical Issues of Legal Practice for Cyberlawyers: On Online Advertising of Legal Services, etc. (Copyright by Dr. Atty. Noel G. Ramiscal)

Since Dr. Atty. Noel G. Ramiscal came back to the Philippines the second time in 2007, he has been advocating for the review and revision of several rules contained in the Rules of Court and the Code of Professional Responsibility for Lawyers concerning the practice of law as it pertains to cyberspace. In his June 23, 2015 Mandatory Continuing Legal Education (MCLE) lecture for the University of the Philippines Institute of Administration of Justice in Jorge Bocobo Hall, UP Law Center, Dr. Ramiscal apprised the lawyers of recent developments in other jurisdictions that involve the utilization of internet tools and innovations of lawyers as they impact on their online practice.

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE232015 Lecture at UP Law Center

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE232015 Lecture at UP Law Center

The thrust of the lecture were concerns that solo practitioners have to be aware of so that they can have some form of guideline as they navigate the uncertain virtual world, especially because the Philippine Supreme Court had not issued rules concerning the various aspects of virtual law practice.

Dr. Ramiscal discussed several models of practising law on a virtual scale that Philippine lawyers can consider as well as technological solutions they can employ for the benefit of their clients and themselves. He will blog about these solutions in his upcoming blogs.

One important issue that virtual practitioners must consider, especially in the Philippines are the current restrictions on legal advertising and the rule on malpractice.

In Ulep v. The Legal Clinic, Inc., Bar Matter No. 553 June 17, 1993, the Supreme Court held that news/paper advertisements of “The Legal Clinic” that included these:

SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.

and

GUAM DIVORCE.

DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours.
Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree’s Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children.

were held to be violative of the Code of Professional Responsibility which provides that “a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts….A lawyer shall not pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.”

In the case of Director of Religious Affairs. vs. Estanislao R. Bayot, the Supreme Court held that “It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public.”

Much of the rules on legal advertising that had been in place in the Philippines were adopted from several earlier Anglo-American rules on advertising and they had not been revised by the Philippine Supreme Court since the Code of Professional Responsibility had been promulgated in June 21, 1988.

The Philippine Supreme Court stance on legal advertising does not give Philippine lawyers much room to express themselves. In the Bates v. State Bar of Arizona [433 U.S. 350 (1977)], the U.S. Supreme Court observed that “the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on “trade” as unseemly. Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession”. The irony is, as this became an ethical rule, members of the general public, (not the well-heeled gentry and elite who know and have contacts with lawyers), whom lawyers sought to serve generally had no access to information about lawyers and their services. The Bates case brought to the attention of the U.S. Supreme Court the unnecessary restrictions placed on lawyer advertisements and the consequent ignorance of the general populace about lawyer’s services and its deleterious effects on the access to, and knowledge of, legal rights and dispensation of justice. Mindful of these, the U.S. Supreme Court struck down as unconstitutional a blanket ban on price advertising of legal services as an invalid restriction on the lawyers’ freedom of expression, and reasoning that such advertisement does not constitute an erosion of the dignity and quality of the profession but contributes to the general elucidation of the public, and ease whatever fear the members may have of the legal process and the costs of the services. Almost three decades after such decision, the ruling has essentially been observed.

With the advent of the Internet and social media, the limitations on the right to advertise one’s legal services continue to be explored, tried and tested, particularly in the U.S., where most of the social media companies are headquartered.
Dr. Ramiscal presented several issues concerning the mechanisms for the approval of legal ads in Twitter, Facebook, LinkedIn, and even in “deals of the day” services like Group-on.

DR. ATTY. NOEL G. RAMISCAL June232015 UP IAJ Lecture with some of the lawyers who attended

DR. ATTY. NOEL G. RAMISCAL June232015 UP IAJ Lecture with some of the lawyers who attended

He delved on the ethical placement of lawyer profiles in Martindale-Hubbell, the oldest lawyer-listing service in the U.S. which has existed for over a hundred years, and which has expanded to the Internet. Dr. Ramiscal discussed the case involving the legality of an online referral service which sells blocks of zip codes to lawyers, and in return they are given all the queries and potential legal business submitted to such service, which correspond to the zip codes they purchased. He also discussed the different treatments of several states concerning online rating services like the “Super Lawyers” and the “Best Lawyers” of America. Only one U.S. jurisdiction, New Jersey, outrightly bans the purported “self-aggrandizing” import of these titles. But other jurisdictions allow the advertisement of lawyers with the designation “Super Lawyer” or “Best Lawyer” if done with disclaimers. And in some states, such designations are allowed when they were not arbitrarily given or bought by the lawyer, and instead are backed up by legitimate peer review processes that are transparent and made known to the public by the evaluators. There is no question that online rating services like “Super Lawyers” and “Best Lawyers” have peer review processes that would qualify under these standards, giving their ratings credibility.

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE232015 UP IAJ lecture with some of the lawyers present

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE232015 UP IAJ lecture with some of the lawyers present

These, as well as other ethical and legal issues involving the practice of law in cyberspace were tackled by Dr. Ramiscal, which unfortunately, the Philippine Supreme Court has yet to address. Dr. Ramiscal trusts that his lecture provided some useful guidelines and principles lawyers can incorporate in their professional practice. Thank you to the animated, gorgeous and warm group lawyers that attended, and in particular to Attys. Percival Cortez, Isabel Florin, Fe Arche Mandez, Omar Papandayan, and Pete Maniego. Thanks and congratulations to Atty. Tess Granados for passing the bar examinations in California, for her daughter passing the Philippine 2014 bar examinations, and for her partner husband being honoured (and deservedly so) as a “Super Lawyer” in California!

The Importance of Cryptology in Digital Society: Dr. Noel G. Ramiscal at the Xavier University (Copyright by Dr. Atty. Noel G. Ramiscal)

Dr. Atty. Noel G. Ramiscal’s odyssey in Cagayan De Oro City continued in July 9, 2015 at the Xavier University, Ateneo De Cagayan, where he was invited to speak before the students and some faculty members of the Philippine History and Political Science Department. Dr. Ramiscal’s lecture on “Cryptology” is part of a lecture series organized by Asst. Lecturer Mr. Luke Igot, who handles the course on “Philippine Politics and Diplomacy”.

DR. ATTY. NOEL G. RAMISCAL JULY92015 XAVIER UNIVERSITY PRESENTATION

DR. ATTY. NOEL G. RAMISCAL JULY92015 XAVIER UNIVERSITY PRESENTATION

Dr. Ramiscal gave the students an overview of the historical and scientific developments of cryptology as they evolved on two fronts: cryptography (the discipline concerned with encrypting data) and cryptanalysis (the discipline of decrypting encrypted data). Cryptology has one of the most controversial lineage and paths amongst the scientific and academic disciplines. Its development has been marred and marked by the destruction of cryptological knowledge acquired during World War II at Bletchley Park in the United Kingdom by the order of its government and the discrimination against one of the most brilliant mathematicians/cryptologists that ever lived, Alan Turing, whose homosexuality led to his persecution, criminal prosecution and to his suicide. Turing invented the “Turing machine” which was the forerunner of the modern day computer, and he is now posthumously recognized as the founder of Computer Science.

DR. ATTY. NOEL G. RAMISCAL JULY92015 XAVIER UNIVERSITY STUDENTS

DR. ATTY. NOEL G. RAMISCAL JULY92015 XAVIER UNIVERSITY STUDENTS

Dr. Ramiscal showed the students the foundational principles of cryptology in the age of quantum computing and nanomolecular cryptology. He explained the importance of the 2002 breakthrough quantum computer developed by the IBM which determined the factors of 15 as 3 and 5, as well as the nanomolecular computer developed by the Tecnion Insitute in Israel.

Since the students’ course has an international law component, Dr. Ramiscal discussed the developments of the Wassenaar Arrangement which is an informal agreement between 41 states to regulate the dissemination of cryptologic knowledge and technologies to forces and elements that might use such knowledge to commit acts of terrorism.

On the other side of the equation, Dr. Ramiscal also discussed how cryptology has evolved to protect the privacy of information, as well as the rights and interests of individuals and entities over the information that could secure their lives and liberties. He gave some examples of how the technology of cryptology had been used to expose the oppression and tyranny committed by States against their own citizens.

In concluding his lecture, Dr. Ramiscal delved on the legal issues concerning the source codes of the automated election system (AES) machines that were utilized in the past two electronic elections in the Philippines and explained certain matters that all concerned members of the electorate (including these voting students) must know in the midst of so many prevarications of facts and truth, particularly the review of the AES machines’ source codes.

DR. ATTY. NOEL G. RAMISCAL JULY92015 XAVIER UNIVERSITY ATENEO DE CAGAYAN WITH MR. LUKE IGOT

DR. ATTY. NOEL G. RAMISCAL JULY92015 XAVIER UNIVERSITY ATENEO DE CAGAYAN WITH MR. LUKE IGOT

Dr. Ramiscal would like to thank Mr. Igot, for his creative and far-seeing approach to the course, which allows different experts in various fields to share their knowledge and research with the students on areas that have far-reaching impact on Philippine politics and economy. Dr. Ramiscal trusts that the students picked up certain useful insights or facts from his disquisition. It was truly a pleasure and a privilege to do this lecture for the Xavier University students.

ETHICS FOR THE GEN-Y (MILLENNIALS), Copyright by Dr. Atty. Noel G. Ramiscal

April 11, 2015 was a significant moment in the cyberadvocacies of Dr. Atty. Noel G. Ramiscal. He was invited to give two separate seminar lectures for the graduating interns of the Asia Pacific College (APC), as well as undergraduate students and graduate students enrolled in several degree programs of APC.

Some of the APC students who attended Dr. Atty. Ramiscal's first lecture

Some of the APC students who attended Dr. Atty. Ramiscal’s first lecture

The students come from disciplines ranging from multimedia, computer engineering, tourism, information systems, forensic science and management. The combined audience for both lectures reached over two hundred students.
Part of the batch of APC students that attended Dr. Atty. Ramiscal's first lecture

Part of the batch of APC students that attended Dr. Atty. Ramiscal’s first lecture

As the objective of the seminar series was to impress upon the students some values that are important as they embark on their professional lives outside of the APC (a CHED Center for IT Excellence), Dr. Ramiscal decided to apprise the students of some legal and sociological developments in the field of internet innovations and technology use.

Dr. Atty. Noel G. Ramiscal at the APC Conference Room with the 2 screen projectors

Dr. Atty. Noel G. Ramiscal at the APC Conference Room with the 2 screen projectors

He gave his lectures the titles of “Gen-Y Ethics” and “Ethics for the Millennials”
Dr. Atty. Noel G. Ramiscal in his second APC lecture

Dr. Atty. Noel G. Ramiscal in his second APC lecture

owing to the fact that almost all of these students were born in the 1990s when the Internet was starting its meteoric rise as a medium for communication and repository of information.

Dr. Ramiscal started his lectures by discussing the important principles of several intellectual properties (IP) that these students should know if they will work at IP driven companies or if they are going to exploit their own IP creations. Aside from expounding on the various works protected by different legal mechanisms under the IP Code, he also discussed the relevant principles under the Philippine Interior Design Act of 2012, the Civil Code, the Architecture Act of 2004, and R.A. 9150 which protects the industrial designs or layout designs or topographies of integrated circuits. Several Philippine IP controversies surrounding Flickr, a Philippine senator, the Philippine Supreme Court, the works of an indigenous community, and National Scientists, were highlighted to make the students aware of what they should not do to steer clear of IP quagmires.

APC students who graced Dr. Atty. Noel G. Ramiscal's second lecture

APC students who graced Dr. Atty. Noel G. Ramiscal’s second lecture

In order to make the students understand why they should not unlawfully misappropriate the works of another, Dr. Ramiscal discussed the major philosophical theories that inform IP laws which are the utilitarian theory of incentives, the Lockean theory of labor and the commons, and the Hegelian theory of the IP as embodying the personhood of the creator, which he had expostulated on his book freely available at this site:

https://noelthecyberlawyer.wordpress.com/2013/10/12/ebook-academic-freedom-intellectual-property-and-human-rights-of-educators-in-their-digital-learning-creations-by-dr-atty-noel-guivani-ramiscal/

An important component of the lectures was Dr. Ramiscal’s exposition on different crimes that can be committed using a computing system or network. He made it very clear that even if the Cybercrime Prevention Act of 2012 had been passed, it is not yet effective. This is due to the fact that its Implementing Rules and Regulations have not been made, released and published by the Department of Justice, and no copies of such had been deposited with the UP Office of the Administrative Register. apc5students So this law cannot be enforced against anyone, just yet. Dr. Ramiscal talked about illegal access to computing systems, illegal e-data interference, illegal e-data interception, computer Identity theft, cybersquatting, cyberlibel, cybersex, online child pornography, online voyeurism, cyberbullying, cyberharrassment and cybersuicide, with the relevant effective laws that cover them and their intersections with the Cybercrime Prevention Act of 2012. Another essential matter that he discussed is e-data privacy breaches that can lead to tragic consequences, epitomized by the murder of Amy Boyer. Unfortunately, just like the Cybercrime Prevention Act of 2012, the Philippine law on this matter, Republic Act 10173, entitled the Data Privacy Act of 2012, is not effective, up to now, because of the non-existent Implementing Rules and Regulations covering it.

Dr. Atty. Noel G. Ramiscal receiving his first Certificate of Appreciation from the lovely Ms. Avon Amores

Dr. Atty. Noel G. Ramiscal receiving his first Certificate of Appreciation from the lovely Ms. Avon Amores

Rounding off the section on crimes and law that can be committed in the workplace and in the academic environment, was Dr. Ramiscal’s talk on sexual harassment and hazing. He recounted his successful experiences as a public and private prosecutor of sexual harassers and hazing offenders, and how these have had an impact on his advocacies.

Dr. Atty. Noel G. Ramiscal receiving his second Certificate from the gracious Ms. Avon Amores

Dr. Atty. Noel G. Ramiscal receiving his second Certificate from the gracious Avon Amores

Finally, Dr. Ramiscal ended his lectures with a brief reminder about the fragility and the perils that can come from establishing love relationships online. He also reminded the students of the importance of Self-Forgiveness and Self-Acceptance, and learning how to value and stand up for themselves and for others and for what they believe, no matter where they are.

Dr. Ramiscal would like to thank the APC’s Managing Director and Executive Director for Student Services, Ms. Teresita Medado; the Executive Director of the Graduate School, Ms. JoAnne De la Cuesta; the Executive Director of SOCSIT, Ms. Rhea-Luz Valbuena; a true pearl of an Internship Specialist, Ms. Avon Amores; and to Mr. Toti Casiño, who is one of the most dedicated persons that Dr. Ramiscal knows to the cause of IT innovations and education. Last but never the least, Dr. Ramiscal would like to extend his heartfelt gratitude to the over two hundred strong students who attended and gave him a fantastic reception. Hopefully, with value-laden students like these joining the workforce, they can serve as vanguards of the Philippines’ IT and IP driven economy. TO THEM, MAY YOU ALL RECEIVE WHAT YOU DREAM, DESIRE AND DESERVE!

A PHILIPPINE LAWYER’S REACTION TO A 2015 E-DISCOVERY STUDY IN ASIA AND WHY THE PHILIPPINES HAS TO PLAY CATCH UP (Copyright by Dr. Atty. Noel G. Ramiscal)

Asian Business Legal Magazine and FTI Consulting early this year published a study on the subject of electronic discovery of evidence which they conducted as a result of their 2013 and 2014 surveys of a handful of lawyers and law firms in Asia.

The study purportedly covered not merely the legal, but the technical and cultural facets of e-discovery. It revealed that only “(s)ixty-five individuals from corporations and law firms completed an extensive online survey, while five e-discovery experts participated in phone interviews.” There was no data revealed as to which particular Asian countries these respondents came from. It was also stated that the “(r) espondents have collected data from 15 different Asian countries (plus the United States, Europe, Latin America and Africa). It may be worth noting that this list is not topped by one of the two Common Law countries (Hong Kong and Singapore), but China, with 60% of respondents having collected there.” As far as the Philippines goes, only 7% of the 70 respondents stated that they collected data from Philippine sources.

On its face, the number of respondents to the study might be deemed too small as to be truly representative of the realities, perspectives and experiences that lawyers and law firms in Asia undergo as the e-discovery processes are set in motion. Be that as it may, Dr. Atty. Noel G. Ramiscal’s reaction would focus on several important issues arising from the study, with respect to their particular import to the Philippines.

THE COSTS OF E-DISCOVERY

The study delved on the huge amount of electronic data that are involved per e-discovery project which pertains to a given case. For example, “(g)iven the huge increase in email correspondence, it is not unusual for each of the parties to be required to apply data storage and key word searches to more than 200,000 separate pieces of correspondence……Indeed, a recent Bingham Tokyo case had over 500,000 separate pieces of correspondence.” The study asked the respondents their estimates of the monetary value of e-discovery for multinational companies. 29% of the respondents declared they “do not know”, while some 2 to 3 % estimated the costs to be $2.5 Million – $5 Million, and the rest laid their estimates between less than $50,000 to $1 Million.

Dr. Ramiscal gave his first lecture on the costs of electronic discovery within the Philippine context way back in May 16, 2007 for the Financial Executives Institute of the Philippines (FINEX).

Dr. Atty. Noel G. Ramiscal receiving a plaque of appreciation from the FINEX

Dr. Atty. Noel G. Ramiscal receiving a plaque of appreciation from the FINEX

In his lecture entitled “Assessing the Costs and Legal Ramifications of E-Data to Your Business or Corporation” he gave specific examples of how much the discovery production costs of pertinent e-data in back-up tapes alone had set some parties back in the United States. For instance, in 2002, in Rowe Entertainment, Inc. v. William Morris Agency, Inc., the costs of e-data recovery was pegged at $9.75 million, while in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., it was set at $6.2 million. These cases did not include the costs for the time of the lawyers and paralegals reviewing the data to determine which is relevant. He then gave an estimate of how much it would take to recover e-data covering thousands of emails spanning several years, using an e-discovery software with the help of an IT specialist at 2007 Philippine prices and context, for a medium sized non-multinational company.
Dr. Atty. Noel G. Ramiscal lecturing before the FINEX officers and members

Dr. Atty. Noel G. Ramiscal lecturing before the FINEX officers and members

He placed the conservative estimate of Php3 million, excluding attorney’s fees for the review of the documents for privilege or confidentiality and relevance.

The study highlighted the fact that almost one third of the respondents did not know how to estimate the costs, without giving any reason why. In his FINEX lecture, and his succeeding Mandatory Continuing Legal Education (MCLE) lectures on this matter, Dr. Ramiscal delineated some of the complicated processes involved in the electronic discovery of e-data (e.g., litigation holds, preservation orders, etc.), made all the more uncertain because of the non-existent rules, then and now, from the Philippine Supreme Court that deal precisely with the legal and proper way of e-discovery. Such lack of proper rules and awareness of e-discovery techniques in the Philippines, that the Supreme Court has the duty to lay down, can certainly contribute to the lack of knowledge of Philippine lawyers as to the costs of e-discovery.

THE NON-FINANCIAL COSTS OF NOT COMPLYING WITH E-DISCOVERY

While the study stressed the fact that the scope of e-discovery is quite broad due to the prevalence of electronic evidence, what it did not dwell on is the non-financial consequences of failing to observe e-discovery procedures. This is an important lacuna in the study.

Aside from the monetary costs, Dr. Ramiscal in his FINEX Lecture and subsequent MCLE lectures had always emphasized the costs of losing one’s business and reputation arising from not observing e-discovery procedures like intentionally destroying electronic evidence pending an imminent litigation or violating an already established preservation order.

Dr. Atty. Noel G. Ramiscal during the Question & Answer portion of his FINEX lecture

Dr. Atty. Noel G. Ramiscal during the Question & Answer portion of his FINEX lecture

A very clear example that he usually gives are the e-discovery infractions committed by the Arthur Andersen accounting firm with their Enron account which led to the dissolution of the firm. These are matters that many law firms, corporations, and courts in the Philippines may not even realize at this stage.

WHO BEARS THE COSTS OF E-DISCOVERY?

The study noted that a lot of e-discovery requests come from government regulators. This meant that the company under regulation is bound to comply, and implied that it will bear the costs of e-discovery.

But that is not the whole reality. When a contentious case arises before the court, for example an intellectual property case involving patents, it is expected that both parties will resort to e-discovery process. In some cases the extent of the requests may be unreasonably broad which, if followed, can lead to unnecessarily heavy financial costs. The American courts have established some sophisticated doctrines and guidelines to follow in cases like this, recognizing the fact that making one party bear the costs of e-discovery would in many cases be unfair. This is another matter that Dr. Ramiscal has continually explored in his lectures for the MCLE seminars he has been invited to by the UP IAJ and the Integrated Bar of the Philippines tackling electronic evidence and electronic discovery.

The study could have been more relevant had it tackled this very particular nitty gritty aspect of e-discovery that involves both clients and their lawyers.

TRANSBORDER DATA FLOW

Finally, the study underscored the challenges concerning privacy and transborder data flows to and from jurisdictions whose privacy laws may conflict with one another. This is a very important matter, and one that is demonstrably illustrated as far as the Philippines goes.

The Philippine Legislature has passed Republic Act 10173, entitled “AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER PURPOSES” in 2012. Almost three years have passed but the Implementing Rules and Regulations (IRR) of this law had not been passed. The National Privacy Commission has not yet been operationalized. Meanwhile, issues confronting the data rights of Philippine citizens have arisen without any specific government directive or direction addressing these issues. In the same vein, Republic Act 10175, “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES” passed in 2012 also has no IRR. This law could complement or intersect with some of the provisions of Republic Act 10173. Under the Administrative law and jurisprudence of the Philippines, without the proper publication of the IRRs of these laws in the Official Gazette or newspaper of general circulation, and proper deposit of their copies with the Office of the National Administrative Register, these laws are not effective against any entity.

CONCLUSION

The Asian Business Legal Magazine and FTI study of e-discovery’s value for the Philippines lies in being an eye opener of some of the important issues concerning e-discovery which the key players in the Philippine government, including the Philippine Supreme Court, and the pertinent executive agencies must deal with. With the electronic initiatives of the Philippine Supreme Court under Chief Justice Sereno (who is a champion of IT-enabled courts), the matter concerning e-discovery of e-data deserves to be duly and timely addressed, especially since the establishment of Philippine Cybercrime courts under Republic Act 10175 had not yet been actualized due to the non-passage of the law’s IRR.

Cite: Dr. Atty. Noel G. Ramiscal, A PHILIPPINE LAWYER’S REACTION TO A 2015 E-DISCOVERY STUDY IN ASIA AND WHY THE PHILIPPINES HAS TO PLAY CATCH UP, (URL), (date of access)

ON BITCOIN: THE ADVENT OR DEMISE OF A STATELESS CRYPTOMONEY? (Copyright by Dr. Atty. Noel G. Ramiscal)

With the establishment of peer to peer networks, the possibility of sharing and procuring information, music and other types of e-data over virtual networks had and continues to be explored by netizens. It should come as no surprise that the concept of “making” money online without the backing of a central authority, via supposedly secured cryptosystems, would be launched and established.

Dr. Atty. Noel G. Ramiscal started discussing the virtual currency “Bitcoin” way back in 2013 as part of his Mandatory Continuing Legal Education (MCLE) lectures on e-data and e-evidence, with the latest being last January 23, 2015. It is not the only virtual currency in existence, but it is the one that is the subject of much controversy.

As a concept, it was attributed to a white paper authored by an entity that went by the alias “Satoshi Nakamoto” and e-published for the “Cryptography Mailing List” in 2008. Simply put, it is an open-source payment system driven by the Bitcoin currency which is in turn driven by cryptology that is reliant on mathematics. How does one earn such currency? Per a given transaction, one has to harness or mine the sheer computational powers of a computing system to solve a mathematical problem which encrypts the pending transaction. This is done by a process called hashing which verifies or confirms the transaction. The verified transaction is time-stamped by the network and it becomes part of a “block” or a chain of blocks in the network, which are comprised of logs of transactions that had been verified, which are known as “proof of work”. The network maintains a public master transaction log which indefinitely stores and publishes these block chains to all the users who are, in turn, given access to the details of this log. The number of bitcoins issued to the miner depends on a predefined formula and the inbuilt system limitation of 21 million coins. Once the miner successfully mines a bitcoin, a private key is sent to the e-wallet of the miner which may be inside his/her computer or located in a remote server. This private key is meant only for the miner and must not be shared to anyone for it constitutes a cryptographic signature unique to the miner that proves his/her identity and allows for the miner to spend the Bitcoin. The price per Bitcoin fluctuates from as low as $2 to as high as $699. Each day brings in a new rate and foreseen and unforeseen risks [see Joseph Burleson, Bitcoin: The Legal Implications Of A Novel Currency, 33 Rev. Banking & Fin. L. 99 (2013); Omri Marian, Are Cryptocurrencies Super Tax Havens?, 112 MILRFI 38 (2013); and Cara R. Baros, Barter, Bearer, And Bitcoin: The Likely Future Of Stateless Virtual Money, 23 UMIABLR 201 (2014)].

The operation of a cryptocurrency without any regulation of a State body is cause enough for some governments to scramble for ways to penetrate or put some semblance of control over the end result of the activities of the miners themselves. So Germany came out with the solution of taxing the bitcoins of its residents in the form of capital gains tax. Canada imposes a barter tax if miners exchange bitcoins for goods without any cash, and those who buy bitcoins at trading exchanges are imposed a tax. In the U.S.A. there is a judicial pronouncement that bitcoins are investment contracts which can be treated as securities.

The bitcoin enterprise has also been associated with criminal activities ranging from money laundering, to the trade of bitcoins for fake passports, stolen social security cards, illegal drugs and illegal services, which the infamous online Silk Road bazaar epitomized.

But probably the most potent threat to its future existence is from within. Being an open source system, it is also vulnerable to cracker attacks. Last year, Mt. Gox, the most popular bitcoin exchange crashed amid speculations and findings of hacking, fraud and embezzlement. It is uncertain whether it could ever recover.

It remains to be seen if this type of cryptocurrency will be embraced by Philippine investors. There are several websites operating as bitcoin exchanges or trading sites in the Philippines, accepting ATM remittances and bank cash deposits. The trading here is most certainly not insured by the Philippine Deposit Insurance Corporation nor regulated by the Philippine Securities Exchange Commission. It would do well for the Bureau of Internal Revenue and the Department of Justice to earnestly study this matter. Considering the risks involved, it will probably be better to invest one’s hard earned currency in something less risky. At this stage, let us face it, if one does not have any bitcoin, there is no reason or necessity to acquire one.

Cite: Dr. Atty. Noel G. Ramiscal, ON BITCOIN: THE ADVENT OR DEMISE OF A STATELESS WIKIMONEY?, (URL), (date of access)

Article on “FASHION LAW IN THE PHILIPPINES”

Dr. Atty. Noel G. Ramiscal has debuted his new website on his advocacy on “Fashion Law”, with the first article: FASHION LAW IN THE PHILIPPINES, at his new blogsite on Fashion, Gems and the Law! It can be accessed at this URL:

https://noelthefashiongemlawyer.wordpress.com/2015/04/10/fashion-law-in-the-philippines-copyright-by-dr-atty-noel-g-ramiscal/

Article on “DIAMOND: A COMMON ROCK IN SOME OF THE MOST VIOLENT PLACES”

Read up on Dr. Atty. Noel G. Ramiscal’s article: DIAMOND: A COMMON ROCK IN SOME OF THE MOST VIOLENT PLACES, at his new blogsite on Fashion, Gems and the Law! It can be accessed here:

https://noelthefashiongemlawyer.wordpress.com/2015/04/10/diamond-a-common-rock-in-some-of-the-most-violent-places-copyright-by-dr-atty-noel-g-ramiscal/

Article on “HERKIMER DIAMONDS: A NEW GEM FOR THE NEW AGE”

If you are looking for a natural alternative gem for diamonds, read up on Dr. Atty. Noel G. Ramiscal’s article: HERKIMER DIAMONDS: A NEW GEM FOR THE NEW AGE, at his new blogsite on Fashion, Gems and the Law! It can be accessed here:

https://noelthefashiongemlawyer.wordpress.com/2015/04/10/herkimer-diamonds-a-new-gem-for-the-new-age-copyright-by-dr-atty-noel-g-ramiscal/

Article on ANYOLITE: A CONTEMPORARY BIRTH GEM FOR ARIES

Read up on Dr. Atty. Noel G. Ramiscal’s article: ANYOLITE: A CONTEMPORARY BIRTH GEM FOR ARIES, at his new blogsite on Fashion, Gems and Law! It can be accessed here:

https://noelthefashiongemlawyer.wordpress.com/2015/04/10/anyolite-a-contemporary-birth-gem-for-aries-copyright-by-dr-atty-noel-g-ramiscal/

On CAD 3D Printed Guns, Livers, Dresses???

Read up on Dr. Atty. Noel G. Ramiscal’s article on: COMPUTER AIDED DESIGN (CAD) 3D PRINTED GUNS, LIVERS, DRESSES, ANYONE? at his new blogsite on Fashion, Gems and Law. It can be accessed here:

https://noelthefashiongemlawyer.wordpress.com/2015/04/10/computer-aided-design-cad-3d-printed-guns-livers-dresses-anyone-copyright-by-dr-atty-noel-g-ramiscal/

THE CRYPTOLOGY RESEARCH PROJECT OF DR. ATTY. NOEL G. RAMISCAL, THE AUSTRALIAN CONNECTION AND THE NEED TO OVERHAUL THE PHILIPPINE SYSTEM CONCERNING AUTOMATED ELECTIONS AND AUTOMATED TRANSACTIONS

Dr. Atty. Noel G. Ramiscal was introduced to the legal necessity and beauty of cryptology (the art and science of encrypting and decrypting secret messages) in an “Internet and Law” class he took facilitated by Dr. Alan Davidson in 1999, when Dr. Ramiscal was taking up a combined class and thesis Master of Laws degree (Advanced) at the University of Queensland, Australia under a very competitive AUSAID scholarship program. He belonged to the last batch of people from the private sector to be granted the AUSAID scholarship. Dr. Davidson took all the members of that class through the basic elements of cryptography and demonstrated the use of an open free type of cryptography called Pretty Good Privacy (PGP). Dr. Ramiscal had first hand access to the software and learned later on about the essential legal, particularly the human rights, issues concerning the significance of encrypting secrets. His fascination with cryptology grew with his own research.

In 2003, he was back in Australia for his Ph.D. in law, undertaken under the Australian Government and the University of Queensland’s International Postgraduate Research Scholarship programs. Since he has decided to concentrate on Information and Technology Law concerning higher education, he thought he could incorporate his initial research on cryptology concerning four jurisdictions: Australia, UK, USA and the Philippines. He sat in some non-credit classes and chatted with cryptographers just so he could have the confidence to discuss and write about cryptology. Two of the papers he wrote relative to cryptology, academic freedom and terrorism, were accepted and presented by him in two international conferences, one in Brisbane, and another one in Abu Dhabi, United Arab Emirates. In the end, the portion on cryptology he wrote for his Ph.D. thesis was excluded because it made the thesis exceed the maximum word limit. That did not stop him from talking about the subject in his professional lectures and in his classes at UP Los Baños where he taught as an Associate Professor for a time.

In 2008, Dr. Ramiscal was granted the “First Outstanding Australian Alumnus” award by the Philippine Australian Alumni Association (PA3i),

Dr. Atty. Noel G. Ramiscal in front of the Philippine Australia Alumni 2008 Forum poster

Dr. Atty. Noel G. Ramiscal in front of the Philippine Australia Alumni 2008 Forum poster

in conjunction with the Australian Embassy for his legal research and advocacies undertaken for the “betterment of his countrymen”. In his acceptance speech before his fellow alumni, the Australian Ambassador and the officers of PA3i,
Dr. Atty. Noel G. Ramiscal with his "Most Outstanding Australian Alumnus" award received from then PA3i Pres. Romero and Amb. Rod Smith

Dr. Atty. Noel G. Ramiscal with his “Most Outstanding Australian Alumnus” award received from then PA3i Pres. Romero and Amb. Rod Smith

he acknowledged the huge debt of gratitude he has for the Australian Government and the University of Queensland for allowing him the latitude to research on any subject he desired and fairly recognizing his talents. He has always maintained that in Australia, one can succeed on pure merit alone because of the Aussie mentality that believes in giving everyone a fair chance.
Dr. Atty. Noel G. Ramiscal having a light moment with Australian Ambassador Rod Smith and PA3i officers in the award ceremonies

Dr. Atty. Noel G. Ramiscal having a light moment with Australian Ambassador Rod Smith and PA3i officers in the award ceremonies

He has sworn since then to live up to the distinction of the award through his personal and professional advocacies concerning IT and Law and striving to make the intersections between these two disciplines clear for the guidance and empowerment of their stakeholders.

In 2012, Dr. Ramiscal was granted a research grant by the University of the Philippines International Institute of Legal Studies headed by the brilliant and eminent international law and human rights expert, Atty. Harry Roque, Jr. His research grant was for the study of the international and national law issues concerning cryptology. Dr. Ramiscal gave a copy of the manuscript to Atty. Roque Jr. last January 27, 2015, at the Jessup Moot Court Competition Room of the UP Law School.

Dr. Atty. Noel G. Ramiscal presenting his manuscript to the UP Institute of International Legal Studies Director, the brilliant Atty. Harry Roque Jr.

Dr. Atty. Noel G. Ramiscal presenting his manuscript to the UP Institute of International Legal Studies Director, the brilliant Atty. Harry Roque Jr.

It took him three years to complete because of the many developments that happened, and continue to happen, in this multidisciplinary field. His research gave a historical account of the development in cryptology which had impacted the arts and different sciences from the authorship of Shakespeare’s sonnets to quantum physics, quantum mechanics, and biomolecular nanotechnology. It covered the current trends and controversies in cryptology in several jurisdictions. He scrutinized the limitations and repercussions imposed by the current Wasennaar Arrangement between forty one countries on the research, entrepreneurial endeavours and possible human rights of the citizens and businesses in these countries. He also explored the connection between the Arrangement and the Arms Trade Treaty (which the Philippines signed in September 2013).

Dr. Ramiscal traced the history and development of export controls on cryptology which is considered a dual use munition or good in the US, UK and Australia. The research connected the concerns of these States with terrorism, in its physical and virtual forms. He analyzed the constitutional challenges brought by the American academics against the export licensing system of the US Government, as well as the recent legal trend of states subpoenaing accused for the disclosure of their decryption keys to possibly incriminating evidence. Dr. Ramiscal discussed and critiqued the current UK Vetting System for the publication and dissemination of academic works and even teaching to certain students of certain countries that might impart information concerning cryptology which can be used in terrorism, as well as the impact of other UK laws on the privacy and academic freedoms of citizens and educators respectively. For Australia, Dr. Ramiscal looked at the legislation concerning export controls, Weapons of Mass Destruction, terrorism and crimes, and case laws which provide a guide into the Commonwealth’s approach to unregulated cryptography. One of the pressing and controversial proposals put forth by the Office of the Solicitor General is the issuance of “intelligibility disclosure notices” relative to encrypted content.

The Philippines presented a challenging legalscape as far as the research was concerned. While the Philippines is not a member of the Wassenaar Arrangement and is not one of those countries listed as having any official encryption policy or export control on dual use goods that incorporate cryptological features, it is a country that has been mired in source code controversy over the automated election system (AES) machines procured since 2009 by the Commission on Elections (COMELEC). Dr. Ramiscal dissected several election issues exclusively pertaining to the source codes of the AES machines and their non-review in the 2010, and selective review in the 2013, automated elections by legitimate third party source code reviewers. He considered several matters pertaining to the procurement activities of the COMELEC regarding the 2016 automated elections. Within the context of cryptology, Dr. Ramiscal also probed different issues pertaining to the government’s electronic procurement system, the Land Registration Authority’s electronic titling system, the (still to be activated) National Privacy Commission’s (NPC) responsibility for the security of electronic data of Philippine data subjects, the need to review the role of data privacy controllers and third party certification authorities of electronic data, and even the necessity for reconsidering the ethical obligation of lawyers to secure their client’s confidential information via cryptology. The result of Dr. Ramiscal’s research is a proposal that will overhaul the whole system of protecting the rights and interests of the Philippine electorate, as well as the privacy rights of Philippine citizens over their electronic data.

In order to finish and submit his research output, Dr. Ramiscal had to sacrifice an invitation to join the Australian Alumni Night bash at Greenbelt in January 26, 2015, which is “Australia Day”. Anyway, to all the Aussie alumni and luminaries who attended, the best days ahead!

Dr. Ramiscal is grateful to the UPIILS grant given to him, to the wonderful Atty. Harry Roque Jr., and to the supportive UPIILS staff, and in particular, to the very kind Ms. Aurelia Tolentino.

TRENDS IN ELECTRONIC EVIDENCE AND WHY THE 2012 CYBERCRIME PREVENTION ACT CAN HARM THE TELECOMMUNICATIONS SERVICE PROVIDERS AND PRIVATE CITIZENS

January 23, 2015 was the day Dr. Atty. Noel G. Ramiscal got to give a lecture for the Mandatory Continuing Legal Education (MCLE) seminars conducted by the Integrated Bar of the Philippine (IBP) Makati Chapter held at the posh A. Venue Hotel in Makati. It was the first time he was invited to the MCLE gathering of this IBP Chapter and it was an opportunity that he was blessed to have.

Dr. Atty. Noel G. Ramiscal with the Integrated Bar of the Philippines, Makati Chapter President, Atty. Somera and Attys. Mia and Brent

Dr. Atty. Noel G. Ramiscal with the Integrated Bar of the Philippines, Makati Chapter President, Atty. Somera and Attys. Mia and Brent

Aside from going over the basics of electronic evidence, Dr. Ramiscal decidedly concentrated on the trends that have developed over the past two years in UK, US and Australia on the matters involving electronic evidence as well as the scanty developments in the Philippines concerning the 2012 Cybercrime Prevention Act. Thus, Dr. Ramiscal introduced the attendees to the government positions of UK, USA and Australia in accessing encrypted content by compelling persons subject of investigations to hand over the decryption keys. He tackled the interesting possible legal complications of extracting evidence from unusual resources like eye trackers, fMRI, and the technologies developed by the US Department of Homeland Security to determine if a person exhibits suspicious or incriminating behaviour. These are a far cry from the lie detection tests and the supposed physical gestures that reveal a person’s deceptiveness which are becoming a thing of the past.

The issues of privacy versus national security were highlighted by Dr. Ramiscal in his discussion of the TOR technology and the Bitcoin controversies. He reminded the audience of how an apparently unbalanced application of laws involving computer crimes can result in tragic circumstances like the death of Aaron Swartz, “the Internet’s Own Boy” who gave his talents, skills and life to liberate information and others from ignorance.

The place of social media in the arsenal of a good litigator was imparted to the attendees in Dr. Ramiscal’s discussion of the types of data that can be gathered in electronic discovery, the protocols required in presenting them in court and some of the legal tips that lawyers must know in order to connect social media data with a particular person.

Pushing his advocacy to a different level, Dr. Ramiscal expounded at length how the 2012 Cybercrime Prevention Act of the Philippines can actually lead to the detriment of Telecommunication Service Providers (TSPs) with its imposition of preservation and destruction of electronic data obligations to these TSPs without any reasonable legal and ascertainable parameters, without any incentives and without accountability on the part of the government. He demonstrated to the audience how the preservation and destruction of e-data provisions of this law, imposed on TSPs, which he had been advocating against since 2012 in his MCLE lectures, can operate to harm not only the interests of TSPs but also the rights of accused people, and even those acquitted of crimes.

Dr. Ramiscal contrasted the 2012 Cybercrime Prevention Act with the proposed amendments to the Australian Telecommunication Interception Act and showed how the latter bill (though not perfect) managed to take into consideration the TSPs’ and the privacy rights of citizens in its provisions, and avoid become an unduly one sided piece of proposed legislation. The 2012 Cybercrime Prevention Act’s provisions on these matters are so deeply flawed that they cannot be corrected by the Implementing Rules and Regulations that the Department of Justice had been tasked to write, and which up to now, have not been officially published and no certified copies have been deposited with the UP Office of the National Administrative Register as required by law.

Rounding up his lecture was his disquisition on several developments that piqued the interest of his audience like virtual adultery and intimate partner violence of domestic violence that can be carried over virtually. He also showed the audience the computer aided design (CAD) files of the first 3D printed handgun made by Cody Wilson, who was named by Wired magazine as one of the 15 most dangerous people on the planet. He gave an analysis of how this type of electronic data should be considered “speech”, and depending on how one views these files, they can be protected speech or speech that facilitates a crime.

The beautiful audience

Dr. Atty. Noel G. Ramiscal with some gorgeous IBP Makati lawyers

Dr. Atty. Noel G. Ramiscal with some gorgeous IBP Makati lawyers

gave Dr. Ramiscal one of the warmest and enthusiastic response to his lectures, ever. Dr. Ramiscal is truly grateful of the IBP Makati President, Atty. Somera, and the organizers, including Attys. Brent, Mia and Jovian Dumlao. It was truly a privilege to do this for the Makati IBP.

Electronic Evidentiary Issues in ECommerce

August 13, 2014 was another auspicious day for Dr. Atty. Noel G. Ramiscal’s IT Law evangelism. He was given the opportunity to deliver a lecture on electronic evidence issues in ecommerce by the UP Institute of the Administration of Justice during its ongoing Mandatory Continuing Legal Education Seminar series for lawyers.

Dr. Atty. Noel G. Ramiscal at the start of his MCLE lecture

Dr. Atty. Noel G. Ramiscal at the start of his MCLE lecture

It was the first time that he gave a lecture that focused on the intersections between ecommerce and electronic evidence, which can be quite complex and diverse, as he found out in his research.

In the first half of his lecture, Dr. Ramiscal discussed the different concepts, definitions and implications of electronic data as applied in different jurisdictions and under Philippine laws, rules and regulations. He reviewed the different rules contained in the Philippine E-Commerce Code, the Cybercrime Prevention Act, the Revised Penal Code, the Rules of Court on Evidence, the Rules on Electronic Evidence and several Supreme Court circulars and cases decided by the same court. He then delved at length on the significance of these laws, rules and jurisprudence from an information technological perspective, with several IT innovations in e-commerce as his take off points. He gave the audience his considered views on crucial concepts, principles and pronouncements that the legislators and the judges erroneously made that can prove to be future stumbling blocks or obstacles to the success and security of ecommerce in the Philippines. He recommended several legislative measures and changes to the rules of electronic evidence. He also offered tips as to how legal practitioners can offer different types of electronic data as evidence in court and how to counter objections as to the authenticity, reliability, relevancy, and other grounds that can be raised against the admissibility of e-data.

The rest of the lecture was devoted to technological developments in ecommerce and the legal controversies they engender. Dr. Ramiscal explained for example how the TOR technology has challenged the core principles of copyright and how exit node operators can be held liable for infringing or illegal material that can be attributed to have “come” (i.e., “exited”) from them, even though they never created and may not even be aware of the content of such material. He delved on the case of Aaron Swartz and how his actions which could be considered “acts of civil disobedience” should not be likened to acts of ordinary computer criminals. The Bitcoin controversies in several jurisdictions as well as the mechanism for such a technology were elucidated upon by Dr. Ramiscal with the objective of apprising the lawyers of up to date and “meatier” information that the tv show “The Good Wife” would not be able to provide.

All in all, this was one lecture that Dr. Ramiscal was gratified to give because it allowed him to share information with fellow practitioners which he trust would be useful in their practice and advocacies.

Electronic Titling of Lands in the Philippines: The Voluntary Titling Standardization Program (VTSP) of the Land Registration Authority

On July 9, 2014, Dr. Atty. Noel G. Ramiscal was given a great opportunity to lecture before the Land Registration Authority (LRA) Mandatory Continuing Legal Education (MCLE) seminar series held in conjunction with the University of the Philippines Institute of Administration of Justice (UP IAJ).

Dr. Atty. Noel G. Ramiscal during the welcoming rites of his LRA MCLE Lecture

Dr. Atty. Noel G. Ramiscal during the welcoming rites of his LRA MCLE Lecture

In a very candid two hour lecture, Dr. Ramiscal, apprised the lawyers of LRA from the different regions of the Philippines who converged in their East Avenue Conference Hall of different international developments and standards relative to information technology innovations that have significant impact in the way nations and people deal with one another. Dr. Ramiscal talked about politically motivated cyber attacks on different states by other states and possibly by state-sponsored “cracktivists” and the new information warfare weapons that they unleash including new designer worms, viruses and electro-magnetic pulse bombs. As he emphasized, no government structure or agency that rely on computer systems to secure their operations and electronic data is safe in the event of a zero day attack or an all out information warfare. He also discussed the developments and implications of intimate internet terrorism and virtual adultery and some of the solutions some jurisdictions have come up to address these matters.

But the most important thing that Dr. Ramiscal addressed in his lecture, which he deemed would be most useful to LRA officials and lawyers was the Voluntary Titling Standardization Program (VTSP) which was implemented via LRA Circular 11, s of 2011. Sec. 4 c. of this circular provided “(a)ll the pertinent data in the manually issued Title shall be encoded and the corresponding annotations shall be made using the format and templates provided in the Computerized System, except for annotations already existing in the manually issued Title, which shall be copied en toto on the resulting eTitle”. It then provided that the resulting encoded data and all the pertinent documents shall be examined by the Registration examiner and if everything appears to be aboveboard, then s/he shall transmit the same to the approving authority, which in this case would be the Registrar. The manually issued Title would be scanned, deactivated and kept in a vault for security purposes. Sec. 2 of the said Circular requires the surrender only of the Owner’s and all Co-Owners’ (as the case may be) Duplicate Certificates of Titles. The e-Title would be controlling.

Dr. Atty. Noel G. Ramiscal during his July 9, 2014 MCLE Lecture for the LRA

Dr. Atty. Noel G. Ramiscal during his July 9, 2014 MCLE Lecture for the LRA

Dr. Ramiscal requested the presence of the pertinent IT official of LRA, together with the relevant (lawyer) officials of LRA who were in attendance to shed some light on this important undertaking. In the discussion that ensued, it was made clear that the VTSP is a “registration” system, not a mere “recording” system, and as such it gives constructive notice to the world about the accuracy of the data embodied in the e-titles, particularly the ownership of the lands subject of the e-titles. It was also made clear from the statements made by those present during the lecture that the security of the e-titling process and the e-titles are handled by a foreign company whose cryptology system was supposedly proprietary and the details of which were not known to the LRA officials and employees present.

Dr. Ramiscal, with the express approval of the lawyers and LRA officials present, gave his perspectives and suggestions as to how to make the e-titling process a more useful process. He shared with them his professional experience in conducting a survey of land titles and land conflicts of one hundred twelve (112) State Universities and Colleges (SUCs) in the entire Philippines when he served as a Technical Consultant for a government agency. Apart from the conflicting data about the land areas of these SUCs gathered from different sources, including the SUCs themselves, the data involving controversies surrounding land ownership and encumbrances like mortgages were also not clear. Dr. Ramiscal impressed upon the LRA officials and employees the necessity and importance of a registration system that could capture all the relevant, current, and accurate data about the titled lands in the Philippines, which could obviate further controversies and be the basis of rational national and local policies and actions. The E-Titling system of the LRA could be the right step in that direction and could truly be a more meaningful tool for all land stakeholders, claimants and investors.

Dr. Ramiscal expressly stated his desire to see the VTSP of LRA succeed and to assist in this regard, Dr. Ramiscal shared some insights. With respect to capturing all the needed e-data about titled lands, including past and ongoing land controversies and encumbrances, Dr. Ramiscal apprised those present about the metadata initiatives from several organizations including the Mortgage Industry Standards Maintenance Organization (MISMO), which could make the data process and searching more efficient and effective. He also discussed several types of cryptological systems and the ways and means by which other governments have deployed these systems to protect their computing systems and e-data. In particular he discussed the Suite B system endorsed by the Australian government which consists of standards that need to be observed in employing symmetric and asymmetric cryptological technologies to safeguard the security, integrity, authenticity and reliability of e-data assets.

Dr. Atty. Noel G. Ramiscal's photo of the wonderful LRA lawyers who graced his July 9, 2014 MCLE lecture

Dr. Atty. Noel G. Ramiscal’s photo of the wonderful LRA lawyers who graced his July 9, 2014 MCLE lecture

Furthermore, Dr. Ramiscal expressed his view that a mere administrative circular would not suffice to cloth LRA with the enabling power to make the E-Titling system the compulsory land titling system in the Philippines. The appropriate measure for this is a law that gives protection for LRA officials, most notably the Registrar that issues the E-Title, in cases of false/fraudulent E-Title registration perpetrated by third parties or by the registrants themselves. Such law must articulate and provide the rationale why the functional equivalence rule between paper and electronic documents recognized under the E-Commerce Code of the Philippines and the Philippine Rules on Electronic Evidence no longer applies to E-Titles. There were other several points that Dr. Ramiscal would have liked to raise to flesh out his concerns but the constraints of an MCLE lecture would not permit him to do so.

Dr. Atty. Noel G. Ramiscal receiving a plaque of appreciation from LRA Dep. and Atty. Robert Nomar V. Leyretana

Dr. Atty. Noel G. Ramiscal receiving a plaque of appreciation from LRA Dep. and Atty. Robert Nomar V. Leyretana

Thank you to all the wonderful LRA officials and employees who graced his lecture and even clapped on several occasions on some of the points he made. This is part of Dr. Ramiscal’s commitment to deliver lectures that are relevant and useful to the very receptive and appreciative audience he has been blessed to address and share his insights with in all his MCLE Lectures. And kudos to all the UP IAJ people involved in the LRA MCLE series for their amazing professionalism. God Bless Us!

Braving Superstorm Glenda: The Passion and Commitment of Lawyers to the MCLE Program and the Need to Review and Amend the Philippine Rules concerning Social Media

Last July 16, 2014, Dr. Atty. Noel G. Ramiscal braved the elements to attend and deliver a lecture for the Mandatory Continuing Legal Education (MCLE) seminar series held by the University of the Philippines Institute of Administration of Justice (UP IAJ) at Jorge Bocobo Hall, UP Diliman Law Center. The travel on the way to UP from Calamba, Laguna was an eventful one (to say the least) with flying trees, shrubs, branches, slippery roads and covertly flooded intersections. He took four modes of transportation just to get to UP before 7 in the morning and prepare for his morning lecture. Dr. Ramiscal congratulated the thirty or so lawyers who attended the lecture despite “Glenda”. They provided the inspiration for his lecture.

Dr. Atty. Noel G. Ramiscal in his July 16, 2014 MCLE Lecture at the height of Superstorm "Glenda"

Dr. Atty. Noel G. Ramiscal in his July 16, 2014 MCLE Lecture at the height of Superstorm “Glenda”

Dr. Ramiscal’s lecture focused on the ramifications of the Philippine Cybercrime Prevention Act of 2012, the Supreme Court’s decision on some of the constitutional challenges to this law and other relevant laws and rules of court on the electronic discovery of social media evidence.

What is more, Dr. Ramiscal also discussed the international developments concerning the service of process, summons, subpoenas, and court notices via social media. Several jurisdictions like Australia, Canada, New Zealand, the United Kingdom and some states of the United States have already recognized the necessity and importance of serving court processes via social media like FaceBook and Twitter to observe the important one of the important elements of due process, which is notice to the person involved. Since over 1.2 billion people have now subscribed to FaceBook, it is more than probable that serving court processes through it will fulfil this requirement and might be more effective than actual service, substituted service, or service by registered or ordinary mail. Dr. Ramiscal also apprised the lawyers about the 1965 “Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” which does not prohibit and can actually accommodate international service of process via social media.

Throughout his lecture, Dr. Ramiscal highlighted several rules in the current Philippine Rules of Court that need to be reviewed and amended to reflect and accommodate the developments in the discovery of social media evidence as well as the service of court processes to an appreciative audience.

Just as when he was about to leave, the UP IAJ staff requested him to deliver a second lecture since the lawyer who was scheduled to lecture could not make it due to some transportation issues. He fully understood and sympathized with everyone involved, including the lawyers who were already there to comply with their MCLE requirements, so he agreed. In a span of about twenty minutes he prepared a powerpoint presentation on significant developments concerning cybercrime in the Philippines which was quite different from his morning lecture and delivered it extemporaneously with as much panache and humor that he can muster, while outside of the UP Law Center “Glenda” mercilessly continued to batter everything on its path with its winds.

A great shout out to the UP IAJ staff, Atty. Golda Miñoza, Mesdames Mabel Perez and Zen Antonio, Ms. Eve and Mr. Ariel, all the fantastic lawyers that attended the lectures which showed their commitment to the MCLE and to the caterer and staff that served us great food for the soul! Thank you! God Bless Us!

The International Laws of Cyberwar and Cyberhatred

March 14, 2014 marked the day that Dr. Atty. Noel G. Ramiscal shared aspects of his research on the international laws relevant to cyberwarfare to a group of lawyers employed by the biggest earner and taxpayer in the Philippines, the Manila Electric Company (MERALCO). This was part of the Mandatory Continuing Legal Education (MCLE) seminar series conducted for the benefit of the MERALCO lawyers by the UP Institute of Administration of Justice.

Dr. Atty. Noel G. Ramiscal MCLE MERALCO Lecture 3 14 2014

Dr. Atty. Noel G. Ramiscal MCLE MERALCO Lecture 3 14 2014

Dr. Ramiscal has been researching on the laws of engagement in the very possible outbreak of cyberwar for several years now. MERALCO was a suitable venue for his lecture entitled “International Law: Contemporary Issues and Developments In Dealing With Information Technology Innovations” because, as he explained to the audience, if the Philippines became the subject of a cyberwar and the warriors wage a firesale, MERALCO would be one of the primary dual use utilities that can be the subject of a digital blitzkrieg possibly accompanied by physical attacks on its plants, that can lead to the total stoppage of the operations of the Philippine government and bring massive collateral damage to the populace.

In his lecture, Dr. Ramiscal introduced the audience to the weapons of cyberwarriors and possible and actual scenarios that have transpired over the years. Since the actual international laws for engagement in digital warfare are not yet settled, he apprised the lawyers of certain principles taken from international law and international humanitarian law that can be relevant to the engagement of cyber combatants. He also gave the lawyers some information on the developments concerning the Arms Trade Treaty which the Philippine Government signed last September 25, 2013, and its relevance to cyberwar if the weapons regulated by the treaty would have components that are computer based or ran by computers. Dr. Ramiscal further discussed the relationship between this treaty and the Wassenaar Arrangement that he had discussed several years back in his lectures concerning cryptology.

Dr. Atty. Noel G. Ramiscal MCLE Lecture MERALCO Lawyers 3 14 2014

Dr. Atty. Noel G. Ramiscal MCLE Lecture MERALCO Lawyers 3 14 2014

Rounding out his lecture, Dr. Ramiscal gave certain pointers and developments in the international law concerning the regulation of “hatred” that is practiced and expressed through cyberspace. He made the point that the internet had changed the dynamics and proliferation of hatred and other e-motives that can even fuel a cyberwar. The Internet has made it possible for a select group or even individuals who possess the technical knowhow to spread their terror and bring down governments on their knees without even engaging in physical combat.

Dr. Ramiscal would like to extend his gratitude to the UP IAJ and MERALCO for this opportunity to further his advocacies on law and information technology. Special thanks to the attentive lawyers, and the stylish lawyers who even invited him for a “selfie”. Kudos to Atty. Platon who knew the title of Billie Holiday’s song, “Strange Fruit” which Dr. Ramiscal used as an example to illustrate the venom of race hatred.

Dr. Atty. Noel G. Ramiscal and the MERALCO Lighthouse Grand Piano

Dr. Atty. Noel G. Ramiscal and the MERALCO Lighthouse Grand Piano

Heaps of praises to the MERALCO Conference Room which had one of the best sound systems that Dr. Ramiscal experienced in his lectures. And finally, the 360 degree view of the Light House is an experience to behold.

Virtual Lawyering in the Philippines

For much of 2012 and 2013, Dr. Ramiscal had lectured and engaged in dialogues with lawyers, in the government and private sector with respect to the practice of law online.

Dr. Atty. Noel G. Ramiscal MCLE lecture circa 2012 UPLC

Dr. Atty. Noel G. Ramiscal MCLE lecture circa 2012 UPLC

Dr. Atty. Noel G. Ramiscal MCLE Lecture for PNP Lawyers

Dr. Atty. Noel G. Ramiscal MCLE Lecture for PNP Lawyers

Dr. Atty. Noel G. Ramiscal in his MCLE Lecture on Online Legal Practice for SEC Lawyers

Dr. Atty. Noel G. Ramiscal in his MCLE Lecture on Online Legal Practice for SEC Lawyers

Dr. Atty. Noel G. Ramiscal at the AIM for his MCLE lecture on Virtual Lawyering for the Romulo Mabanta lawyers

Dr. Atty. Noel G. Ramiscal at the AIM for his MCLE lecture on Virtual Lawyering for the Romulo Mabanta lawyers

Dr. Atty. Noel G. Ramiscal's MCLE Lecture on Virtual lawyering for the Siguion, Reyna, Montecillo and Ongsiaco law firm lawyers

Dr. Atty. Noel G. Ramiscal’s MCLE Lecture on Virtual lawyering for the Siguion, Reyna, Montecillo and Ongsiaco law firm lawyers

The passage of the Cybercrime Prevention Act of 2012, and the lifting of the TRO by the Philippine Supreme Court over this act (in its decision dated February 21, 2014), together with the same court’s declaration of the unconstitutionality of some of its provisions, have not really settled many of the issues that Dr. Ramiscal had extensively discussed in his Mandatory Continuing Legal Education (MCLE) lectures.

More specifically, these are the issues concerning the regulation of virtual lawyering, cyber advertising and cyber auctioning of legal services, jurisdictional issues of cross border online legal services, cloud computing legal issues, online legal process outsourcing, and of course, the variegated complexities of ethical lawyering in cyberspace. In his MCLE lectures, a lot of lawyers had expressed publicly (during the open forum) and privately to Dr. Ramiscal, their challenges at applying legal concepts meant for the physical world to the online world.

Dr. Atty. Noel G. Ramiscal after his MCLE Lecture for the Philippine Bar Association on Virtual Lawyering

Dr. Atty. Noel G. Ramiscal after his MCLE Lecture for the Philippine Bar Association on Virtual Lawyering

Since the recent decision on the Cybercrime Prevention Act did not address nor give any guidelines on virtual lawyering in the Philippines, there is a necessity for private lawyer associations like the Integrated Bar of the Philippines and the Philippine Bar Association, legal experts, jurists, the Philippine Supreme Court and concerned legislators to address the growing legal and ethical concerns that the online practice of law can engender. The Code of Professional Ethics for Lawyers, and the Code of Judicial Conduct, as well as the Rules on Electronic Evidence and pertinent rules in the Rules of Court need a thorough review. A good compilation and annotation of all the Philippine Supreme Court decisions concerning the internet and its innovations that might have some bearing on online legal practice is also a must.

In the meantime, Philippine lawyers who must engage in some form of online practice must be guided by their common sense in their online transactions. The simple rule is, if you cannot do it physically, do not do it digitally. And lastly, do not underestimate the efficacy and power of disclaimers.

IN MEMORIAM: CAPT. CONRADITO DUMLAO

There are persons that one will meet in this lifetime whose very presence can guarantee a lightening of spirit, even a source of comfort. Capt. Conradito Dumlao was one such person, and to those of us who were privileged to know him, personally and/or professionally, he was the quintessence of the phrase “an officer and a gentleman”. He led an exemplary life serving the public, both in the Philippines and in the United States through his detective agency, Truth Verifier Systems Inc. (TVSI), which is certainly one of the most successful and multi-award winning bi-coastal detective agency founded by a Philippine citizen.

I got to know him when I came back to the Philippines to take a break from my Ph.D. researh in Australia in 2005. My good friend from Punongbayan and Araullo, Attorney Vladimir Alarique Cabigao, who is now in Australia, introduced him to me. Without batting an eyelash, Capt. Dumlao asked me what my legal specialization was, and when I told him of my Ph.D. research on Information technology law, he immediately signed me up as the speaker on E-commerce and electronic fraud for the American Chamber of Commerce meeting the following day! That began a series of long conversations between him and myself (interspersed with occasional conferences where we both served as speakers) regarding the state of the laws and regulations concerning cybercrimes in the Philippines and the United States, when we met in times when we were both in the Philippines.

“Capt. Dumlao”, as I called him, out of awe and respect, did not look at a person’s appearance, economic status, sexual orientation, or any of those differences that matter to most people, when he dealt with his staff, his clients and the public. He was an egalitarian, who was kind in demeanor, but firm when he had to be. His experience and expertise and brand of humor were showcased in the many lectures he conducted on lie detector tests and other types of technology that detectives used to ferret the truth.

He was a builder of bridges, a charismatic communicator and a rainmaker. His PR skills, innovative spirit, and professional credibility led to his company, the TVSI, to be awarded by the Philippine National Police with many accolades over the years, and had also led to stints in the Philippine showbusiness! TVSI’s lie detector tests and agents were featured regularly on several seasons of Showbiz Central. TVSI is also a most sought after agency by the big law and accounting firms for their investigative work.

Dr. Atty. Ramiscal with the Association of Certified Fraud Examiners (ACFE) with Capt. Dumlao at the center

Dr. Atty. Ramiscal with the Association of Certified Fraud Examiners (ACFE) with Capt. Dumlao at the center

It is no secret that he was in love with his wife of many decades, and their children. One only had to attend their family gatherings to sense the palpability of this love. He was also genuinely interested in, and protected the welfare of his staff, who only have good things to say about him.

When I received news of his transition, I was deep in several professional commitments, so I did not have the chance to go at his wake. I created this blog to make up for that and to express how grateful I am to his taking me in as a lecturer in his firm’s continuing education seminars. He will always be to me, a man of unstinting integrity, who never judged me, and who only sought the good in people. He was a soldier of light, a rare gracious soul, who made other people feel good about themselves.

Captain Dumlao, we thank you!

Lawbytes 113 : Dr. Ramiscal’s CyberLaw on Spamming: Why the Bangko Sentral ng Pilipinas and Telcos are violating the Spamming Law in the Philippines [Part 1] Copyright by Dr. Atty. Noel G. Ramiscal

In my lecture tours since last year, I have been requested to dissect the many interesting and complex issues concerning different kinds of cybercrimes for different audiences. I always make it a point to discuss the interconnections between the Cybercrime Prevention Act (R.A. 10175) with the Data Privacy Law (R.A. 10173), both of which were passed in 2012. Since the National Privacy Commission (NPC) was operationalized by the past President only last March 8, 2016, and the Implementing Rules and Regulations for R.A. 10173 are still in the process of being formulated, almost after four years since this law was passed, I have apprised the audiences of the various complications these circumstances have wrought, in the light of several security and data breaches that government agencies and private businesses have suffered, with the personal identifying information of over forty million Philippine registered voters being hacked from the Commission on Elections (COMELEC) database prior to the May 2016 elections, and published on wehaveyourdata.com, a U.S. website, as a most recent reminder that personal data can be lost via official “nincompoopery” and brazen non-accountability.

But a most pressing matter that probably many people would not know about is the LEGALITY of spamming in the Philippines! Yes, Maria, Pedro, Juan, spamming is LEGAL in the Philippines. It was not always so.

R.A. 10175 actually criminalized “The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services” [Sec.4.c.(3), Chapter II]. The law however made exceptions when spamming is allowed, and these are when any of these conditions are present:
Sec.4.c.(3) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject. receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.
These conditions were placed in the law for the protection of both the recipients and the senders of unsolicited electronic communications.

However, in the February 11, 2014 decision of the Philippine Supreme Court in the consolidated cases of Biraogo v. NBI and PNP, G.R. No. 203299; ALAB NG MAMAMAHAYAG et al. v. Office of the President et al., G.R. No 203306; Adonis et al. v. Exec. Secretary et al., GR 203378; Disini et al v. DOJ Secretary et al., G.R. 203335; Senator Guingona III v. Executive Secretary et al, G.R. No. 203359; Bagong Alyansang Makabayan et al. v. Aquino III, GR 203407; Ateneo Human Rights Center v. Exec. Sec. et al, GR 203440; National. Union of Journalists, PPI, et al, v. Exec. Sec., GR NO. 203454; Castillo, Andres v. DOJ Sec. et al., GR No. 203454; Cruz et al, v. Aquino III, et al., GR 203469; Philippine Bar Association v. Pres. Aquino III, GR NO. 203501; Bayan Muna v. Exec. Sec., GR 203509; National Press Club v. Aquino III, GR 203515; and Philippine Internet Freedom Alliance v. Exec. Sec., et al, GR 203518, ruled that spamming is NOT illegal.

To get the full understanding of how the Supreme Court grasped the issues concerning spam, the relevant three paragraphs of its decision are quoted here:

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the “efficiency of computers.”

Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression (italics supplied, citations omitted).

This ruling as of now had not been overturned. According to the Philippine Civil Code, the decisions of the Supreme Court form part of the law of the land. Even if this decision is riddled with technical and legal errors, it is the law as far as spamming is concerned.

Dr.Atty.Noel G. Ramiscal at his lecture for the BPI LEADr and BPI University, August 3, 2016

Dr.Atty.Noel G. Ramiscal at his lecture for the BPI LEADr and BPI University, August 3, 2016

An interesting development that I discovered in my research on, and advocacies against cybercrime, since 2015 was the Bangko Sentral ng Pilipinas (BSP) Circular issued by the BSP Deputy Governor, Nestor Espenilla Jr., last March 25, 2015, which was Memorandum Circular No. -M2015-017. It had the title “Prohibition against push messages or commonly known as unsolicited text messages”.
Banks and their subsidiaries were reminded by this BSP Circular of Sec. 4 of R.A. 10175 or the Cybercrime Prevention Act concerning the criminalization of spamming or sending unsolicited commercial messages as well as several National Telecommunications Commission’s (NTC) pronouncements including Memorandum Circular No. 03-03-2005 A, dated July 3, 2006, as amended by NTC MC No. 04-07-2009 dated July 7, 2009 on this subject. The BSP Circular even stated that the NTC circulars “protects and promotes the interest of the subscribers/end-users of public telecommunications entities (PTEs) by prohibiting content and/or information providers (CP) from sending and/or initiating push messages. A subscriber who wants to avail the services of the CPs and/or PTEs may send his written consent through correspondence, text message, internet or other similar means of communication to the PTE.”

Finally, the Circular stated that the Banks “shall remain responsible for all the violations of the aforementioned regulations and law committed by their outsourced agency/personnel”.
I apprised the lawyers and employees of the Bank of Philippine Islands in my August 3, 2016 lecture for them sponsored by the BPI LEADr and the BPI University, as well as the lawyers and foreign service officers of the Department of Foreign Affairs, last August 12, 2016 and the lawyers who attended my lecture for the UP IAJ last August 15, 2016, of this matter.

It seems apocryphal, even downright scandalous, that the BSP which has over 200 lawyers in its employ could miss the February 11, 2014 decision of the Supreme Court legalizing spamming, or the “push messages” which it viewed as “criminal” citing the same provision of R.A. 10175 which the Supreme Court struck down as illegal. In the decretal portion of the Supreme Court’s decision, the court even stated:

WHEREFORE, the Court DECLARES:

1.VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications.

Dr. Atty. Noel G. Ramiscal"s MCLE Lecture for Globe Telecom last April 6, 2016

Dr. Atty. Noel G. Ramiscal”s MCLE Lecture for Globe Telecom last April 6, 2016

The BSP apparently is not alone in thinking that spamming is still illegal. In my lecture for the lawyers of the Globe Telecommunications last April 6, 2016 at their Tower in Bonifacio Global City, I apprised the lawyers that Globe Telecom’s privacy policy and fair use policy which prohibit spamming do not comport with the Supreme Court’s ruling. One of the lawyers cited the NTC Circulars which prohibit spamming. But these are not in point because they were issued way back in 2006 and 2009. Smart’s Corporate Website Terms and Conditions states: You further understand and agree that sending unsolicited e-mail advertisements to the Web site or any user of the Web site or through voice computer systems is expressly prohibited by these Terms and Conditions. Any such unauthorized use of our computer systems is a violation of these Terms and Conditions and applicable “anti-spam” laws.

Adding to the confusion is the monumental oversight by the NTC in not coming up with a clear guideline [after February 11, 2014 and up to now] that will construe and implement the Supreme Court decision for the telecommunication companies.

This is a very important issue that affects not merely the telecommunication companies, but all Philippine net denizens, whose personal identifying information could have been compromised due to some vicious spamming attacks. More on Part 2 of this series.