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

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 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. 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

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

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

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

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

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

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

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

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. 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

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

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

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

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

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

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. 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

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

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

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 105: TRENDS IN ETHICS FOR CYBERLAWYERS, CYBERCRIMES, CRYPTOLOGY AND SOCIAL MEDIA FOR CEBU: COPYRIGHT BY DR. ATTY. NOEL G. RAMISCAL

When Dr. Atty. Noel G. Ramiscal was personally invited by the Integrated Bar of the Philippines (IBP) Chapter in Cebu to give a series of lectures for their MCLE lecture seminar and for the students of three Cebu Universities on November 18, 19 and 20, 2015, he was thrilled and ecstatic to say the least! This will be the first time he will visit this beautiful and prosperous province and meet some of the big time legal practitioners in the Philippines, as well as lecture in institutions that have produced bar topnotchers in the Philippine annual bar examinations.

Despite the multiple flight booking re-schedulings, departure delays and challenges brought about by the recently concluded APEC meetings in Manila which affected the roads traversed by Dr. Ramiscal (together with his mother) who came all the way from Laguna to the NAIA airport, Dr. Ramiscal was quite grateful when the plane touched down at the Mactan International Airport. Cebu truly did not disappoint.

Dr. Atty. Noel G. Ramiscal at the Lapu-Lapu Shrine, Cebu, Nov. 18, 2015

Dr. Atty. Noel G. Ramiscal at the Heritage Museum, Cebu, Nov. 18, 2015

Dr. Atty. Noel G. Ramiscal at Fort San Pedro, Cebu, Nov. 18, 2015

While the construction of skyscrapers and roads contributed to the traffic congestion at some parts of Mandaue and Cebu city, the beautiful skyline, the restful colors of the bodies of water and the greenery of the mountains provide the perfect escape for the senses and for the soul. This is where the conveniences of a globalizing world together with the creature comforts of the old world meet and meld. And the food is simply scrumptious! It is easy to understand why many foreigners and locals alike are flocking to Cebu and staying.

IBP CEBU CHAPTER LECTURE

For his Mandatory Continuing Legal Education lecture for the IBP Cebu lawyers, Dr. Ramiscal was tasked to give some of the ethical and legal issues that lawyers confront in their utilization of technological tools as they extend their practice virtually, or even devote their entire practice within the ethers of cyberspace.

Cyberlawyering, as pointed out by Dr. Ramiscal is the next frontier for lawyers who desire to stay relevant. Richard Susskind in his book “The Death of Lawyers” predicted that the lawyers who will survive the technological wave (more like a “tsunami”) are those who can provide their clients with responsive portals that can operate on a 24/7 basis. The trend for single cyberlaw practitioners is to be certified in different jurisdictions to avoid jurisdictional conflicts and the ethical issues that abound. Lawyers in different countries or in different federal states have also established multi-jurisdictional firms operating within the Internet, with varying models and varying successes.

In order to utilize the internet effectively, lawyers and law firms must carefully devote their time, attention, resources, and must take into account their needs and the needs of their clients in developing or buying and implementing technological solutions for their practice. Dr. Ramiscal gave some examples of these solutions and even briefly expounded on the legal implications of the use of cloud computing storage, unbundling, technology or computer assisted reviews, predictive coding technologies, and even “billing” technologies that are currently available, that could streamline or cut down the costs of legal work as well as keep some lawyers “honest” particularly in charging their clients. In response to a question as to how online payment could be effected and some strategies in payment, Dr. Ramiscal talked about establishing a Paypal system account, or even a credit card payment account within the lawyer’s website. There are software solutions that provide interfaces and the system for billing clients and client payment. Dr. Ramiscal also discussed the alternative value billing strategy of an online law firm like the Valorem Law which places an important focus on the interests of the client.

Dr. Ramiscal gave the IBP Cebu lawyers updates, among others, on the latest innovations in the utilization of metadata, hyperlinks, and lawyer online advertising and referrals that included the purchasing of zip codes, Group-ons, and pay per click ads that actually challenge the current conservative stand of the Philippine Supreme Court on legal ads and solicitations which are rooted in the early pre-20th century American conceptions of the legal practice. Dr. Ramiscal pointed out that these new forms of advertising allowed in jurisdictions like the U.S. would be considered “malpractices” under the Philippine Rules of legal ethics and the Code of Professional Responsibility for lawyers.

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from IBP Cebu Pres. Atty. Malig-On Jr., Nov. 19, 2015

The sharing of fees between lawyers and non-lawyers which is a big “NO” under the current Philippine legal ethics rules, is actually now legally allowed in the United Kingdom, where law firms are permitted to partner with accounting, press relations, human relations and even entertainment firms to better and fully serve the needs of their global clientele.

Another trending issue that Dr. Ramiscal discussed is the rise of cybersecurity insurance companies that issue policies for cyberlaw firms/lawyers due to the fact that general insurance liability policies do not cover electronic data breaches, hackings and crackings. Law firms are considered to be one of the most vulnerable sectors and frequently targeted by crackers from certain countries specially if these firms have connections to volatile issues or governments that these crackers are hostile to.

Some of the IBP Cebu lawyers who attended Dr. Atty. Noel G. Ramiscal’s lecture at the Cebu Grand Hotel Ballroom, Nov. 19, 2015

Due to time constraints, Dr. Ramiscal briefly discussed some trending ethical issues in lawyers destroying the electronic data of their clients, and in not being able to grasp the legal implications of the usage of certain technologies that could prejudice their clients and themselves. One lawyer asked what could be done to provide protection to Philippine lawyers in the meantime that there are no apparent rules for these technologies that are already employed or within their grasp. Definitely, if things are left to the Supreme Court, Philippine lawyers might be waiting for a long time. The Code of Professional Responsibility for Lawyers has remained unchanged since 1988. The current Rules of Electronic Evidence have not been amended since 2002 and it contains errors that Dr. Ramiscal discusses in his lectures on electronic data that have profound effects on the rights and interests of litigating parties. So in answer to the query, Dr. Ramiscal challenged the IBP Cebu chapter members to act on this issue, to gather their collective wisdom and experiences and get assistance from experts, to formulate reasonable rules that can govern their online conduct and practice. One helpful suggestion the lawyer raised is to provide a course in law schools that focuses on electronic evidence and ethics. This is one measure that Dr. Ramiscal has suggested several times in his past lectures, which has yet to pass.

THE CEBU UNIVERSITIES LECTURES

As a sign of its true Generosity of Spirit, the IBP Chapter of Cebu established partnerships with the law schools of three Cebu universities, namely the University of Cebu (UC), the University of San Carlos (USC) and the South Western University (SWU), so that Dr. Ramiscal could lecture in these universities on matters concerning cybercrimes, cryptology and social media. Dr. Ramiscal gratefully accepted this opportunity to connect with the future leaders/movers/shakers of Cebu and the Philippines. Originally he planned separate lectures on these three topics because they are complex topics by themselves, but he just focused on their interconnections when he was asked to do a lecture on all of them within a two hour period for each university.

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

Dr. Ramiscal started his lectures by briefly acquainting the students with the progeny of the current Cybercrime Prevention Act (R.A. 10175) and his involvement in the process of drafting and critiquing the drafts of the cybercrime bills intermittently from 2000 up to the period of 2008 as a consultant of various agencies including the Information Technology E-Commerce Council, and the former Commission on Information and Communication Technology. He then delved on the various issues concerning un/lawful access to computing systems and e-data. Apart from citing several examples, this set the stage for a brief discussion concerning cryptology which is concerned with hiding information (cryptography) and uncovering data (cryptanalysis) by different processes.

The University of San Carlos Law School audience of Dr. Ramiscal’s lecture, Nov. 19, 2015

Currently, one of most well known cryptanalytic processes is concerned with the mathematical trapdoor of factoring a very large number. One student from SWU (who is in the field of applied mathematics) raised the very good question of what happens when quantum computers are finally realized that could solve this problem. Dr. Ramiscal responded that in such event, the rules in the Philippines concerning electronic keys, electronic signatures and asymmetric encryption (which appears to be the favourite form of encryption) found in different laws and in the rules of the DTI, DOST and the Supreme Court would have to be reconsidered.

South Western University Law School audience of Dr. Ramiscal’s lecture, Nov. 20, 2015

And as pointed out by Dr. Ramiscal, there are other forms of cryptography that do not rely on factoring as the trapdoor problem. He pointed out new developments in the field of nanomolecular technology and even the fully homomorphic encryption system of Dr. Craig Gentry that relies on the problem of lattices, which a quantum computer might not be able to break. These “forms” of cryptography are not expressly nor apparently recognized by the same Philippine laws and rules.

Dr. Atty. Noel G. Ramiscal having fun in his USC lecture, Nov. 19, 2015

Dr. Ramiscal showed two examples of the application of an end to end encryption system. The TOR developed by the US Naval Research Laboratory has progressed into being a guardian of the civil liberties and even the lives of human rights activists, as well as a tool of choice by cybercriminals because of its relative security that has not been shown to have been sufficiently breached. Another example is the Bitcoin, which Dr. Ramiscal happily observed that students from the three universities know or have heard about. One student from the USC even talked a little about the Bitcoin mining process.

Dr. Atty. Noel G. Ramiscal accepting a certificate of appreciation from Law School Dean Joan Largo and Fiscal Rodulph Carillo, University of San Carlos, Nov. 19, 2015

As pointed by Dr. Ramiscal, this hypervolatile cryptocurrency is being advertised to target the huge money remittance industry in the Philippines because of the low transaction costs and apparent ease of transaction. Unfortunately, what is not that well known is that its peer to peer encryption system might not be as secure as the TOR system. Mt. Gox, one of the most popular Bitcoin exchanges was hacked for a period of time by hackers who took advantage of the bugs in the source code of the Bitcoin and in February 2014 took down the exchange and stole some 850,000 pieces of Bitcoins.

Still in connection with the question of “access” Dr. Ramiscal differentiated ordinary cybercriminals and cyberterrorists from a different breed of hackers known as hacktivists who, like Deric Lostutter and Aaron Swartz, are motivated by higher ideals like exposing criminal injustice, corruption, fair open access to information that should be free, etc.

Dr. Atty. Noel G. Ramiscal with SWU students, Nov. 20, 2015

These are highly skilled and political people who use their computing skills to better the world as they see it. They do not sow terror on the populace, nor they do steal and profit from stolen e-data. Dr. Ramiscal noted the limited view of the Philippine Supreme Court on “ethical hacking” and stated that the means by which they carry on their agenda would be considered criminal under R.A. 10175. He gave tips on how to defend hacktivists.

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from South Western University student leader, Ms. Amy Suson, Nov. 20, 2015

Dr. Ramiscal also expounded on different crimes and how social media has become the treasure trove for prosecuting and defending cybercriminals. Incriminating websites are one of the best evidence for cyberfraud. Important is the development of online impersonation laws in several states which would answer impersonation of one’s likeness, name, or persona done by another for motives that are not for material gain, and in contexts that do not involve a prior relationship between the impersonator and the offended party.

Since UC allowed Dr. Ramiscal an additional hour to expound more on his topic, he discussed cases where social media evidence had been used in family, custody and labor cases. Facebook, Twitter, Youtube, Instagram and other social media platforms are utilized by terrorist groups as communication devices, propaganda tools and as a means of recruitment. He delved on several issues of intellectual property rights infringement from cases he handled or experienced, and expounded on the IPR issues concerning the source codes in the automated election systems machines used by the COMELEC. He also was able to discuss in part issues concerning hyperlinks, privacy and metadata.

Dr. Atty. Noel G. Ramiscal receiving a certificate of appreciation from the University of Cebu student leaders and resident fashionista, Atty. Ria Espina, Nov. 18, 2015

One UC student asked about the process of re-claiming his authorship of a digital photo he took which he uploaded in his Facebook site without any watermark, but which other people are now claiming as theirs. Dr. Ramiscal advised the student to preserve the Facebook post where the photo was originally uploaded because that will contain the unique metadata that could establish his claim. The post will contain the definite date of uploading and the timestamp and his unique story or perspective over the photo. The photo itself may contain metadata about its size, its file type, the kind of camera used to take the photo and other descriptors. On the question by the same student as to the “storied” method of narrating, which is simply the process of replicating content in posts including comments of others into one’s own online posts, Dr. Ramiscal advised that in order to avoid any charge of copyright infringement, the poster should always attribute the source of the replicated content and comments within his/her posts.

Dr. Atty. Noel G. Ramiscal with some of the gorgeous University of Cebu lawyers and Law School students

Dr. Ramiscal apprised the students of the fact that online privacy might be more of an illusion than a reality. The leaks by Edward Snowden revealed that certain governments are engaged in general surveillance of its citizens. Even search logins to search engines like Yahoo! or Google are also retained by these engines and it is possible to create digital dossier on the searcher based on what he/she searched. One UC student informed the audience that a relative of hers was forced by a government agency to open an email account and private social media so that the government agent could search instantly, without any warrant, the account holder’s emails and social media content. Dr. Ramiscal stated that this type of search should not be allowed and if individuals are coerced by government agencies to do so, they should object because such encroachment on one’s privacy rights is illegal. In the US, the government is prohibited to coerce any subject to hand over the passwords to his/her encrypted accounts on the ground that such will violate the Constitutional right against self-incrimination.

Dr. Atty. Noel G. Ramiscal and mom with the Fabulous University of Cebu Lawyers: Attys. Ria Espina, Anne Tan and Maricar Tallo

Dr. Ramiscal is truly grateful to the IBP Cebu’s Board of Directors and the IBP Cebu President Atty. Gonzalo Malig-on Jr.; and the Deans of the three law schools: Atty. Baldomero Estenzo (UC), Atty. Joan Largo (UCS) and Atty. Godwin Manginsay (SWU), for making all these possible. A heartfelt thank you goes to Atty. Mundlyn Misal Martin who coordinated everything and was Dr. Ramiscal’s primary contact both for the IBP MCLE and the university lectures. Especial thanks to the generous Atty. Rheinier Mora and his superb driver Mr. Romy Agan; the terrific triumvirate of UC lawyers: Attys. Ria Espina, Anne Tan and Maricar Tallo; the power couple of USC: Attys. Daryl and Dean Joan Largo, and the two USC students, Ms. Pearl Ronulo and Mr. Danrey Cabatana who helped coordinate the USC lecture; and the dedicated remarkable student leaders at SWU: Ms. Amy Suson, Mr. Corter Palange, the head of the Pantera fraternity, and their fellow students. Lastly, but definitely, not the least, an awesome shout out to all the amazing and incredible students of the three universities who gave Dr. Ramiscal such a massive reception and tremendous support! It had been truly an honor and a privilege to do these lectures for them! THANK YOU!!! God Bless Us!

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

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

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

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

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

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

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

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

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

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).

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

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, 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

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

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

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!