August 17, 2021 is certainly one of the most important dates in my cyberlaw advocacies. I was privileged to conduct a 4 hour training session, via Zoom, which was attended by about 300 participants all over the Philippines, for one of the biggest and most important State University Colleges (SUC) in the Philippines, the Mindanao State University, and its Institute of Information Technology (MSU IIT), and their funding partner, the Commission on Higher Education (CHED) Region 10. The occasion was MSU IIT’s and CHED Region 10’s commitment to engage their personnel in Gender and Development (GAD) projects through gender mainstreaming activities, like the Learning and Development (L & D) sessions that the Civil Service Commission had emphasized in its MC 19, s. 2016, to be one of the effective means of human resource management engagement.
A former CHED colleague and a true friend of mine, Ms. Nathalie Igot of CHED Region 10, contacted me if I would be available to conduct the training and to which I replied a resounding yes! The subject I was given was on gender based cybercrimes, for two reasons.
First, the 4 hour training session was meant to capacitate those personnel who would be given the tasks to assist and resolve sexual harassment cases in the workplace and online as provided in RA 11313: An Act Defining Gender-Based Sexual Harassment in Streets, Public Places, Online, Workplaces, and Educational or Training Institutions, Providing Protective Measures and Prescribing Penalties Therefor, or simply the “Safe Spaces Act”.
And second, the training session itself is meant to honor and remember the Philippines’ commitment to the ASEAN, and in particular the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC). The ACWC convened its member States representatives last March 22, 2021 to discuss amongst others, how to build a better future for women and children amidst the pandemic and post pandemic world, and in view of the possible physical and online violence they can be subjected to.
Being made aware of the noble and practical aims of the training session, I set out to select the most relevant facts, statistics, social, legal, even religious developments, and case laws for my lecture. I gave the title “Electronic Evidence in Gender and Sexual Orientation Based Cybercrimes: An ASEAN/Philippine Perspective” to encapsulate the theme and aims of the session. I also supplied the pre and post test evaluations for the attendees.
On the day, and prior to the training session, I got to meet the technical team of MSU IIT, headed by Mr. Jaypee Yongco, the moderator, Mr. Septrin Calamba, and of course, my good friend Nathalie, whom I have not seen or personally met in over three years, via Zoom. I promised (and kept it) to wear a different hat every session break to keep it fresh, and also because I have bought all these hats from different places in the world, and for now, I have nowhere to go to display them.
In my lecture, I pointed out that the Philippines is located in the most violent zone for women and children, i.e., the South East Asia, according to a 2013 WHO survey. If one looks at the statistics of violence per country in a global basis, the figures are harrowing. According to the World Bank, in Russia, 1 woman every 40 minutes dies as a result of domestic violence. In China, 50 to 100 million women are missing, and there is a gender imbalance due to the high incidence of female foeticide, which is also the case in India. I noted too the rise of dowry killings and recent surge of incidents in India where girls and young women are killed or beaten up for wearing blue jeans and embracing technology like talking on mobile phones. In the Philippines, the latest 2017 National Demographic Health Survey showed that 1 in 4 Filipino women aged 15-49 has experienced physical, emotional or sexual violence by their husband or partner. The World Bank estimated that 1 to 5 years of life are lost in women ages 15 to 44 through death or disability resulting from domestic violence. The pandemic did not help either. On a global scale, reports on domestic and child violence were apparently down, but it is also a fact that the usual avenues for giving assistance to women and children were either closed or cancelled due to global lockdowns.
The disregard of the Others, the lesbians, gays, transpeople, queers, intersexed, asexuals, non-gender conforming or non-binary people (LGBTQIAs), is very much apparent on the absence of clear qualifications on the sexual orientations of victims of violence, particularly women and minors. While there are very few studies on the economic effects of violence against LGBTQIAs, all these studies confirm that, like violence against women, the abuses (physical, mental, emotional, economic, and social) heaped against the members of this group, affect not only the individual victims, but all of us. Currently over 70 countries penalize same sex consensual relations, and in 7, the death penalty can be applied. The Philippines is quite far from legally recognizing and protecting the rights of the Others. The Sexual Orientation and Gender Identity Expression (SOGIE) bills have been filed and refiled since the 11th Congress up to the current 18th Congress, with the current bill not expected to be even discussed for the remainder of this year or the next, due to the impending national elections.
It is a sad irony that after two world wars, human rights experts from all over the world had to convene in 2008 in Yogyakarta, Indonesia, to basically reaffirm, in what is now known as the Yogyakarta Principles, the undeniable truth that Women and LGBTQIAs are entitled to human rights because they are human beings, for this truth is not readily apparent, recognized or observed in too many countries.
The Internet makes it quite easy to deny the humanity, dignity, and autonomy of real human beings. The Philippines leads the world in statistics concerning the prevalence of Online Sexual Exploitation of Children (OSEC), based on cyber tips, which is not really a reliable statistic because all these online tips do not actually translate to actual OSEC cases. Anyway, I shared the story of a female survivor of human trafficking whose actual pimp, her mother, tried to sell her and two sisters, to a ring of foreign pedophiles. It did not push through because one of her sisters inadvertently chanced upon the email exchanges between their mother and one of the foreigners, and they were rescued on the day that they were supposed to be shipped out to their doom. The mother is now locked up, thanks in part to the email evidence.
On this part of my lecture, I introduced the basic laws and rules pertaining to evidence, and electronic evidence in the Philippines that must be known and understood by lay persons who are tasked with the responsibility of chairing or being members of administrative tribunals, or Committees on Office Decorum Investigations (CODIs).
99% of all information being generated today is created and stored electronically. Both the Cybercrime Prevention Act of the Philippines and the Safe Spaces Act gave extensive definitions of what and where these data can be culled, so I discussed the various sources of electronic evidence and the major differences between what is “hard” tangible real object data from electronic data.
Electronic data is not generally designed to be “discovered” as evidence, unlike hard documents or object evidence. And therein lies the source for many legal issues that crop when electronic evidence is presented by any party and considered by any court, tribunal, or body like CODIs. This type of evidence cannot just be presented to these bodies. The discovering and presenting party must consider access issues to these data. Consent of the proper party may need to be obtained. Electronic data that is encrypted present special technical and legal issues for electronic discovery. In criminal cases, it is not settled under the Philippine Cybercrime Prevention Act, if law enforcement agents can actually compel suspects to surrender the decryption keys or codes to the encrypted information. In administrative cases, it is highly doubtful if CODIs can actually compel any party to decrypt encrypted information.
I apprised the attendees of the different types of electronic data and specific technical issues on how they should be presented. I delineated how to present specific types of electronic evidence like emails, text messages, chatroom conversations, video, digital photographs, websites, Internet Protocol addresses and DNA, and how to gauge their authenticity, credibility and reliability. In doing so, I also discussed the relevant standards of proof that deciding bodies in different cases must consider. I then warned them of the possibility of forensic fraud perpetrated by digital forensic investigators or so-called forensic “quacks” who can tamper, manipulate, alter evidence to suit their clients.
Then I introduced the participants to different cases of online violence, from sexual harassment, to online impersonation, to cyberstalking, and to electronic inducement of suicides, and everything in between. I showed them how electronic evidence were utilized in these cases to identify and hold the offenders liable.
Based on the response from the participants, the questions they posed and the reactions I read posted on the Zoom chat board, they were more than interested, they were hungry for the type of information and knowledge I shared with them. And it was my pleasure and privilege to provide these for them.
Utmost gratitude to Dr. Jinky Bornales, the VCRE and MSU IIT GAD Focal Person who gave the welcoming address, Dr. Raul C. Alvarez, Jr. of CHED who gave the opening message and CHED Commissioner and GAD Overseer, Dr. Aldrin A. Darilag, who gave an inspirational message, the MSU IIT technical team, the CHED 10 officials, and all attendees who made my 4 hour training session seem like a breeze! Especial thanks to Ms. Nathalie Igot who made it possible for me to connect with hundreds of people and share my advocacies.
And thank you for reading this far! God Bless!
Philippine Law Bytes: TheCyberLawyer Issues by Dr. Attorney Noel Guivani Ramiscal 