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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawbytes 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!