Lawbytes 114: 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

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

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

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.

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

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

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: 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

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

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

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

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

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

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

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.

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

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

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

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 110: THE NEED FOR A PHILIPPINE DIGITAL ASSET INHERITANCE LAW, THE RIGHT OF TRANSMISSBILITY UNDER THE DATA PRIVACY LAW, AND THE VALUATION OF DIGITAL ASSETS

My work and professional advocacies on digital privacy and security started way back in 2001, when I was appointed as a consultant for the Information Technology E-Commerce Council on its cybercrime bill initiative, up to the time I had to leave the country to take my Ph.D in Law degree at the University of Queensland in Australia in 2003. When I came back, in 2008, the former Commission on Information Communication Technology (CICT) through its Deputy Commissioner Atty. Perez tasked me to critique the consolidated cybercrime bills that already went through the vetting process of the European Commission, which I did, and to come up with my own cybercrime bill, which was never considered. I was also a consultant of the CICT on its data privacy bill which had its own issues, and placed in the backburner for quite some time. I wrote a white paper for that, raising issues that to this very day are quite relevant.

In this age of digital confessionals and e-self-immolations in the pursuit of online fame and notoriety, there is one very basic thing that I have wondered about since 2008, which no Philippine legislator, academic or even a lecturer in the Mandatory Continuing Legal Education (MCLE) had raised, legislated, blogged or even lectured, until now. This matter involves the question of a person’s digital legacy.

Eight years after my CICT stint, I started lecturing and advocating for the necessity of a Philippine law that allows the survivors or heirs of a decedent to have access to the digital remnants of their loved one. My first MCLE lecture to incorporate this was for the Integrated Bar of the Philippines (IBP) Chapter in Ilocos Sur, Vigan last January 15, 2016 at the historic Girl Scouts Building.

Dr. Atty. Ramiscal in his MCLE lecture for the IBP Ilocos Sur Chapter on E-Discovery of Social Media where he first discussed at length his advocacy on the establishment of a Digital Asset Inheritance Law

This was the time, when one of idols, David Bowie passed on, and I felt that Vigan is a very appropriate place to start this advocacy because it is an international heritage site, where the past and present co-exist and collide in surprising and beautiful ways. I have continued to do so in every opportunity that I could get in my lecture tours all over the country, including in my different lectures for the MERALCO, Siguion Reyna Montecillo Ongsiako law firm, the Sycip Salazar Gatmaitan Hernandez law firm and the Santiago and Santiago law firm. The most recent lectures where I raised this matter were for the CDAS ASEA 10, in Cagayan De Oro last July 13, 2016 and the University of the Philippines Institute of Administration of Justice last July 15, 2016.

Dr. Atty. Noel G. Ramiscal at the world famous Vigan plaza

The electronic remains of a decedent may be contained in emails, social media, websites and other repositories that are owned or operated by third parties. Many cases have arisen in several jurisdictions where the survivors of the owners of email accounts or social media profiles who have passed on, are deprived of their access to the digital creations of their loved ones because of the policies and terms and conditions of usage of the third parties that own these repositories. Typically, owners of email services like Yahoo! and Gmail restrict the use of any email account to the holder of such account and prohibit the sharing of passwords or e-keys to these accounts, thus not allowing the heirs of these account holders to access their loved ones’ accounts for important information. The same policy holds true for social media providers like FaceBook, which is the most popular social media platform utilized in the Philippines. FaceBook, after being informed of the passing of an account holder would memorialize the holder’s account, effectively “freezing” the account and preventing its activation, including any further comments.

Dr. Atty. Noel G. Ramiscal at the UP IAJ for his MCLE Lecture on Social Media that touched on the need for Digital Asset Inheritance Law

One of the most well known cases that typified the difficulties of heirs having access to their loved one’s electronic legacy is that of James Ellsworth. He is the father of Justin Ellsworth who died in Falujah, Iraq, while saving eleven marines. Justin engaged in email chats with his father and wished to publish a scrapbook of his war experiences when he returns to the U.S. after his tour, using their email correspondence as the main storyline or basis. Unfortunately, this did not come to pass. In dealing with his son’s death and his personal grief, James decided to honor his son’s wish, but he could not access his son’s Yahoo! email account for the pertinent emails that would be used in the scrapbook, because Yahoo! will not give him his son’s password or access to the account. The case went to probate court, and after a protracted period of waiting, the probate court decided that Yahoo! must furnish James copies of his son’s email messages but denied James access to his son’s email account on the ground that the account would pass on to Yahoo! since it is stored on its server. This case also did not change Yahoo!’s policy. Some are not as fortunate as James. Parents of people who killed themselves or were murdered, and left messages in FaceBook prior to their passing, were denied access to their children’s accounts’ content altogether, thereby leaving them with questions about their children’s behavior, motivation and pertinent history which their private postings could possibly answer.

Some lawyers who enjoyed Dr. Ramiscal’s lecture on Social Media for Up IAJ last July 15, 2016

Some of the other lawyers who enjoyed Dr. Ramiscal’s lecture on Social Media for Up IAJ last July 15, 2016

It is because of cases like these that I have decided to advocate for a Digital Asset Inheritance Law. In my lectures I raise several points that legislators must consider.

The most crucial is the right granted under the Data Privacy Law (R.A. 10173) to a “data subject” which is the right of data transmissibility:

SEC. 17. Transmissibility of Rights of the Data Subject. – The lawful heirs and assigns of the data subject may invoke the rights of the data subject for, which he or she is an heir or assignee at any time after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights as enumerated in the immediately preceding section.

Under the law, this right of transmissibility would include the right to access the personal information and other data generated by the data subject that had been subjected to “data processing” which had been defined to “include but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data” by any personal information controller (PIC). The definition of PIC under this law is broad enough to include email account systems operators and social media providers.

The Implementing Rules and Regulations of R.A. 10173 have not yet been promulgated by the National Privacy Commission (NPC), as they are currently undergoing a series of public hearings. In fact, the I.R.R. do not even touch on this in any specific manner. So there is no guidance as to how this law may affect the rights of the survivors on accessing the digital remnants of their loved ones.

Dr. Atty. Ramiscal on his MCLE Lecture on Data Privacy Law for the MERALCO lawyers

One particular concern that I note here, and in all my lectures on this matter, which is why I have been advocating for a specific law on digital asset inheritance, is that a mere I.R.R. from the NPC may not suffice due to the legal question concerning not only NPC’s status, but the actual effective implementability of R.A. 10173.

R.A. 10173 was passed last August 15, 2012. But the past administration only operationalized the NPC last March 8, 2016! The law mandated the following:

SEC. 39. Implementing Rules and Regulations (IRR). – Within ninety (90) days from the effectivity of this Act, the Commission shall promulgate the rules and regulations to effectively implement the provisions of this Act,

which should have been done way back in 2012. This not a mere technical ground but one intertwined with substantive legal merit. The Supreme Court had decided on a slew of cases that the operative act of the legal implementability of any law is the deposit of its I.R.R. with the UP Office of the National Administrative Register, which had not yet been done in this instance after almost four years from the law’s passage.

I have three specific suggestions for what this type of law should contain.

First, a specific law on digital asset inheritance must specify or include the possible electronic repositories of the digital legacy of a decedent. It must apply to all forms of electronic storage providers, like email providers, microblogging services, social media providers and cloud providers. Provision must be made for the allowance of accounts created by deceased minors, who during their lifetimes, did not abuse their accounts, and created content (even through their correspondence), which their heirs or survivors deem worthy as legacies.

This law is crucial because it would, or should trump the terms of use and conditions that are currently provided by social media and email account providers like FaceBook, Gmail and Yahoo! to deny access to the heirs of the accounts of their deceased loved ones, because these policies prohibit the account holders from sharing their account passwords or from sharing their accounts with any third party, including their loved ones.

Second, another important and significant issue that is not currently being discussed in the Philippines is the intellectual property rights connected with the digital legacy left by a decedent. For instance, an examination of the relevant Facebook policy would reveal that when a user signs up for FaceBook, s/he grants FaceBook a non-exclusive intellectual property license to use and even transfer the license to third parties that FaceBook deals with, concerning the posts, photographs, videos, or written materials that the user puts in his/her FaceBook account. Even if the user terminates the account, these third parties that FaceBook transferred it license to can continue using the digital data. A proper Digital Inheritance Law must address this seemingly iniquitous situation.

Third, this law should also consider or lay down the proper framework for the valuation of digital assets.

The Bureau of Internal Revenue, and possibly the Bangko Sentral ng Pilipinas (BSP), Department of Trade and Industry (DTI), the Department of Communication Information Technology (DCIT), the NPC, the National Telecommunication Commission, other relevant agencies and the private sector must come up with an acceptable formula and accounting method for determining the monetary value of all forms of digital assets.

The framework must take into account the reality that some of these assets would defy the normal or usual means of valuation and accounting. An example would be Bitcoins, which is an example of a cryptocurrency that is not regulated by any country or any central banking authority. Since they are virtual money that pass from online wallets or are traded in online exchanges that are not regulated by the BSP, and their values fluctuate every day, it is difficult, if not impossible, for now, to access and determine their value for Gross Estate Tax purposes. These constitute the reasons why tech savvy spouses avail of Bitcoins to hide part of their assets from the prying eyes of their less than favored spouses and why drug dealers and purveyors of digital crimes use them as their currency of choice.

Dr. Atty. Noel G. Ramiscal’s picture of Juan Luna’s Girl Playing with Mandolin

The very clean well preserved streets of Vigan

To all the readers of this blog article, I request that you join me in my advocacy for such a law by circulating or disseminating this article to your favorite legislators, and to as many people and entities as you can to create the needed groundswell and support for this type of legislation. You can also leave a comment on this blog article and create a discussion for this law.

I would like to thank the excellent gorgeous IBP Vigan lawyers (who are too many to mention) who were so generous in regaling us with their stories and insights into Vigan’s past and treating us to the rich food, particularly the bagnet, that I could still savor even after so many months have passed! Vigan is one of those magical places that truly merit a world class reputation and I felt so fortunate to have experienced first-hand the true hospitality and genuine warmth of not only the lawyers but the locals, as well.

Dr. Atty. Noel G. Ramiscal with some of the marvelous and gracious IBP Vigan lawyers/officers

Extra especial thanks to the UP Institute of Administration of Justice, their brilliant Director, Prof. Patricia Salvador Daway, their former, and truly fabulous Director, Prof. Rowena Daroy Morales, the insightful Atty. Armand Arevalo, the generous Mesdames Mabel Perez, Zen Santos and Evelyn Cuasto and the amiable IAJ staff, who had supported my cyber law advocacies all these years!

To the lawyers in the law firms that I was fortunate to lecture at, the IBP National, Ms. Arguson, and the Arellano Law Foundation, who all trusted me to be one of their lecturers, and to every lawyer who had attended my lectures in the past, Deo Gratias!!! I trust that these bits of insights can serve as part of the arsenal for those of you who are advocating for the proper treatment of the digital legacy of their loved ones. God Bless Us! Insha Allah!

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!

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

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

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. 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. 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”!