Philippine Lawbytes 196: The Unseemly State of the Philippine Digital Forensic Service Industry and the Nature of Forensic Evidence, copyright by Dr. Atty. Noel Guivani Ramiscal

The cause of professionalizing and making accessible the services of digital forensics service providers to Philippine citizens had not even begun. At least in the case of DNA examinations, some progress had been made, with the Supreme Court passing the Rule on DNA Evidence. The 3 laboratories in the Philippines that are capable of doing DNA forensic analysis are the DNA Analysis Laboratory at the Natural Sciences Research Institute, University of the Philippines Diliman (UPD-NSRI), the Philippine National Police (PNP) Crime Laboratory, and the National Bureau of Investigation (NBI) Crime Laboratory (Dr. Maria Corazon A. De Ungria & Atty. Jose M. Jose, Forensic Science in Challenging Environments: The Philippine Experience, July 2018, https://www.researchgate.net/publication/326106801).

Secondly, the PNP and NBI Crime labs are used exclusively for the purposes of prosecution. So an individual accused of a cybercrime with no connections, no financial means and no knowledge of the existence of forensic services of outside “cybercrime labs” would have no way of effectively countering the claims made against him/her, no matter how spurious or dubious they are, which are contained in a digital forensic examination report submitted by a government/private forensic examiner working for the State.

Dr. Ramiscal at his first DOJ MCLE LECTURE as Technical Expert at the Roma Hotel, Tuguegarao, Cagayan, March 6, 2018

Thirdly, there appears to be no complete and clear understanding yet about the proper scope of cybercrimes, not only by State prosecutors, but by the general populace as well, and how that affects those in the forensic service industries. In 2018, I was invited to be a Technical Expert at the DOJ, in their training sessions for senior state prosecutors and police personnel at Roma Hotel, in Tuguegarao Cagayan, on extrajudicial killings. I gave two lectures, the second being more of a training session on electronic evidence. The prosecutors were given exercises on identifying and prosecuting crimes with cyber components. In their presentations, none of them even picked up on the cybercrime elements which led me to comment on this, and reminding them that changing the charge for an ordinary crime with a cyber component into a cybercrime has the added element of raising the penalty by at least about one degree.

The Cybercrime Prevention Act of R.A. 10175 defined “computer system” to include “any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.” Anything done to a computer in the commission of a crime will thus have a cybercrime component. Thus, even a pluggable USB can be considered part of a computer system, and if it was used to contain unlawfully acquired copyrighted documents for example, it can be the subject of investigation, and the crime is not merely a violation of the IP Code of the Philippines, but it will be a cybercrime under R.A. 10175, in conjunction with the IP Code.

In the forensic industry, there needs to be an awareness that anything that is examined and analyzed by any forensic expert, be it shabu, blood or electronic data, if the analysis was made via a computer and the results were created with the help of a computer, then the outcome is considered “electronic evidence”.  If the forensic scientist then, for example, tampered with the evidence by altering the electronic data, or introduced actual shabu into what was actually mere “tawas” or potassium alum, or corrupted a blood sample, and s/he used computer lab programs or software to make it appear that the results were legitimate, then instead of being charged with mere obstruction of justice for tampering with evidence, presenting false testimony, or perjury, the charges can be based on R.A. 10175, together with the relevant pertinent penal laws.

So taken this way, all forensic investigations of crimes which were done through the means or assistance of any computer, which were marred by fraud, and any other form of illegal act by the forensic examiner using a computer system, are all considered cybercrimes of the forensic examiner/s concerned.

Fourthly, and most grievously, the Philippines is one of those countries, where no reliable data and study exists at all in quantifying and classifying the types of all criminal convictions in the country since 2012, where cyber elements are present, and if the accused in these cases had been granted adequate access to the electronic evidence against them, and adequate legal assistance in putting up a defense in the face of such evidence.

In countries like the U.S. and U.K., sweeping changes were made in reforming the forensic service industry, from DNA testing to digital forensics, but only after decades of neglect, “junk science”, judicial inertia, police abuse and forensic service providers’ scandals had become prominent causes of so much injustice, that they can no longer be ignored.

Let’s trust that these will not be an accepted and unaddressed reality in the Philippines. A first step in the right direction will be the mandatory accreditation of all forensic service providers and forensic examiners in the Philippines on a regular periodic basis. There should also be an oversight body for all forensic service providers in the Philippines that would have the regulatory and disciplinary power over all these providers and examiners, so they can be held criminally and civilly liable and accountable for their actions, particularly if they present their reports and testify in courts. In the upcoming election, please educate your favored politician on this matter, and let’s elect someone who will actually do something for a change, in leveling the scales of justice, to protect the rights of any accused person, from battling tampered evidence, and evidence “magicked” by unscrupulous, incompetent, corrupt and criminal forensic examiners.

Philippine Lawbytes 145: Social Media Profiling And Other Improper And Illegal Ways Used By Police To Get Electronic Evidence On Innocent Persons (Copyright by Dr. Atty. Noel G. Ramiscal)

Law Enforcement Authorities (LEAs) sometimes get lazy, or they may endure a lot of pressure to get someone to take the blame for a cybercrime, or may even engage in cover-ups for the real culprits and take someone as a scape goat for the cybercrime. In these cases, they will take shortcuts. I explained some of this during my lecture for the ACLEx MCLE seminar last November 12, 2019 at St. Giles Hotel, Makati.

Dr. Atty. Noel G. Ramiscal at his Social Media Ethics lecture for ACLEx last November 12, 2019

They may engage in stereotype profiling, where they arrest or take someone for questioning, not because of what the person has actually done, but because of the person’s associations, relationships, his/her economic, racial, or religious backgrounds, or because of the person’s set of skills.

If the crime is unauthorized access to computing systems, or what is known commonly as “hacking”, which is punished under Section 4(a)(1) of the Cybercrime Prevention Act of the Philippines (R.A. 10175), the LEAs will engage in skills profiling. They may even use software which employ algorithms that can analyze social media accounts and other information found in the internet to pinpoint specific persons with the background or skill set they think would fit with the background or skill set of a possible person who committed the crime.

In so doing, the police or LEAs have not really engaged in a thorough and objective investigation. They have engaged in a malicious and pernicious profiling that has nothing to do with the person they actually take in, but is actually all about the police’s or LEAs’ biases.

In the case of hacking, under the guise of cooperation or informal “processing” or questioning, or “making it easy” on the person the LEAs have identified by profiling, they may ask him/her to open their computer or e-devices, email accounts or social media accounts, to retrieve documents (for example, an email or an image), which the LEAs may then take and hold as the incriminating piece of evidence they are looking for to secure a search and seizure warrant or even an arrest warrant.

Or after the person has opened his/her e-devices, email or social media accounts, with or without the permission of said person, the LEAs may access his or her e-devices and accounts. They would then search the history/archive of the person’s computer or e-devices, to find anything that slightly refers to the matter they are investigating, and if they find even a scanty trace or “footprints” of a website, a YouTube video, or even a e-document that can support their biases or their theory of the case they have already formulated against the person, they will use these in their application for warrants of arrest or search and seizure warrants.

If the LEAs were originally tasked to find any IP address that can be connected to the cybercrime under investigation, they will then look-up the IP address of any e-device of the person they questioned, and if they cannot connect such IP address to the case, they may not even disclose this, hoping that the other pieces of evidence they have submitted through online social media profiling and the lack of knowledge of the screening judge, or the judge in charge of the case, will be sufficient to overcome the rigorous standard of “proof beyond reasonable doubt” in criminal cases.

Make no mistake, my dear readers, any of these methods that the LEAs may use to produce a suspect for trial, is wrong, and whatever warrants they secure, are illegal.

What can happen if these illegal methods are employed?

Consider the case of Jelani Henry, who was associated allegedly with a violent gang in New York, but whose actual ties and gang related crimes were never proven. He grew up with a brother Asheem, who was the actual perpetrator of several crimes as a “crew” member. Jelani’s misfortune arose merely because of his pictures in Face Book and other social media showing him with his brother and other crew members, and due to his comments and likes of videos of these members. He was jailed in Rikers Island for a total of two years, but no case was ever brought against him because all the charges were eventually dropped. The police merely relied on his social media profile [Ben Popper, How the NYPD Is Using Social Media to Put Harlem Teens Behind Bars, VERGE (Dec. 10, 2014, 1:15 PM), http://www.theverge.com/2014/12/10/7341077/nypd-harlem-crews-social-media-rikers-prison%5D.

Thus, judges who issue arrest and/or search and seizure warrants in cybercrime cases must actually and rigorously inquire and scrutinize the process of the electronic evidence gathering of the LEAs, and the relevance of the actual electronic evidence they produce, to prevent the issuance of these illegal warrants. Whatever evidence, physical or electronic, the LEAs have produced against the person are inadmissible in court, being the “fruits from the poisonous tree” of the illegal warrants. The hapless victims who are placed in jail or in trial, of these types of police investigation deserve to be released, or acquitted post haste, to avoid a similar fate of Jelani Henry.

Philippine Lawbytes 138: Dr. Ramiscal for the Philippine National Police Investigators: Trends in Anti-Cybercrime Measures (Copyright by Dr. Atty. Noel G. Ramiscal)

I was given the opportunity by the UP POPLAW to lecture for our brothers and sisters in blue on the topic “Cybercrime” as part of the Philippine National Police (PNP) Investigation Officers Basic Course” (IOBC) Class 98-2018, and the “Criminal Investigation Course” Class 561-2018, Seminar on Laws and Jurisprudence for the PNP.

Dr. Atty. Noel G. Ramiscal at his lecture for the PNP Officers and Investigators at UP Diliman, July 4, 2018

The PNP has a competent Anti-Cybercrime Group (ACG), so I took it upon myself to introduce some concepts and developments in this quite expansive area, that these fine investigators may not have yet encountered in their work, or must be apprised of to update their awareness.

Dr. Atty. Noel G. Ramiscal during his lecture for the PNP Officers and Investigators in UP Diliman, July 4, 2018

The Implementing Rules and Regulations of the Philippine Cybercrime Prevention Act or R.A. 10175 defined a “computer” to include “any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet.” What this basically meant is that all e-devices that operate with a computing device should also be considered a computer. Due to this, the scope of the task of any PNP cybercrime investigator has been tremendously widened. The Internet of Things (IoT) devices which I briefly discussed, as well as social media, and other e-devices that suspects can use to communicate, or can contain incriminating evidence are all part of the e-data net that cybercrime investigators must now cast. Due to this reality, the possibility of electronic evidence being tampered with, altered, destroyed or lost, is magnified, especially if the e-data are located in different countries, and can be remotely controlled or manipulated.

The PNP Officers and Investigators who gave Dr. Ramiscal a standing ovation in his Lecture at UP Diliman, July 4, 2018

One significant matter I imparted to them is the fact that e-data privacy crimes under the Data Privacy Law or R.A. 10173 are cybercrimes. And while the National Privacy Commission is the governing agency on this law, the help of cybercrime investigators may be needed to establish evidence of culpability. On this regard, I showed them several cases, among which included the COMELEC e-data breaches, that have caused a lot of dismay, disgust and actual and potential damage to the welfare and safety of each individual Philippine voter whose sensitive personal information, down to his/her voting history and biometrics have been disclosed to, and sold to, and bought by nefarious third party e-data traffickers. I discussed several aspects of digital identity fraud, including synthetic ID fraud, that I have handled.

Some of the PNP Officers and Investigators who attended Dr. Ramiscal’s Lecture, UP Diliman, July 4, 2018

I endeavored to go thru the gamut of different cyber scams and fraudulent activities that abound online, from virtual fraudulent states, to digital misappropriation of intellectual property, social media crimes, to ransomware but our three-hour session was just not enough.

Some of the PNP Officers and Investigators who attended Dr. Ramiscal’s Lecture, UP Diliman,, July 4, 2018

I always have a deep respect for the work of our dear brothers and sisters in blue who put themselves in harm’s way to keep us safe. I have met and worked with several cops whose integrity, honesty and dedication are unquestioned. But I was not prepared for the generous reception they gave to me. For the first time in my almost two decades stint as a lecturer and trainer, the wonderful attendees of these two classes actually rose from their seats and gave me a standing ovation! My mother who was with me, and I, will never forget that moment! To them, thank you for your awesomeness! God Bless us!

LAWBYTES 125: DATA PRIVACY, DETECTIVE AGENCIES AND THE TRAGIC AMY BOYER’S LEGACY, ATTENTION: NATIONAL PRIVACY COMMISSION (Copyright by Dr. Atty. Noel G. Ramiscal)

One of several heartrending true stories that I recount in my lectures on Data Privacy and on Sexual Orientation Gender Identity and Online Violence, [like the MCLE series of the University of Cebu (UC) and the students of UC last April 27 and 29 of this year], was the case of Amy Boyer. She was a victim of cyberstalking and murder at the hands of a former classmate in 8th grade, whom she had no idea was obsessed with her: Liam Youens.

When their lives took them to different places, Liam continued his obsession with her online. He developed a public website with her name as part of the URL. In this website he documented his violent passion for Amy and the means and ways that he intended to kill her. He went so far as to declare that his greatest regret was in not having killed her in 8th grade.

In order to accomplish his lifelong mission, Liam engaged the services of an online private investigation and information service “Docusearch.com”, in order to obtain the current whereabouts of Amy. Docusearch.com is in the business of procuring and selling pieces of online information about anything or anyone, no questions asked, so long as the price is right and is paid upfront. Its president, Daniel Cohn, is a licensed private investigator in Florida.

Liam contacted Docusearch through its Internet website and requested the date of birth for Amy Lynn Boyer. He gave Docusearch his name, New Hampshire address, and a contact telephone number and paid the $20 fee by credit card. Docusearch provided Liam with the birth dates for several Amy Boyers, but none was for the Amy Boyer sought by him.
On succeeding days, Liam ordered and paid for Amy’s social security number (SSN) which costed $45 fee by credit card, and paid $109 fee twice by credit card for Amy’s employment information. He also requested a “locate by social security number” search for Amy and paid the $30 fee by credit card. Docusearch finally informed Liam of Amy’s employment address at Dr. John Bednar’s office at 5 Main Street, Nashua, New Hampshire. Docusearch acquired this address through a subcontractor, Michele Gambino, who had obtained the information by placing a “pretext” telephone call to Amy in New Hampshire. Gambino lied about who she was and the purpose of her call in order to convince Amy to reveal her employment information. Gambino had no contact with Liam, nor did she know why Liam was requesting the information.

Over a month after finding out where Amy worked, Liam drove to her office, patiently waited for her to come out, fatally shot her, and then killed himself.

The Estate of Amy Boyer sued Docusearch and the case went all the way to the Supreme Court of New Hampshire. The court held among others that private investigators who do not know the purpose or the reason why their client is seeking the information, “creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed” to the client. Private investigators can be held liable by the third person or his/her heirs who suffered from the misconduct caused by the private investigator’s client who acted on the information given by the private investigator.

The New Hampshire Supreme Court discussed the possible deleterious effects of two crimes that are involved which are perpetrated with the use of private investigators: identity theft and stalking, of which Amy Boyer was a victim. “The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person’s personal information to a client.” Furthermore, any pretextual phone call or communication by the private investigator based on deception to gather personal information from an unsuspecting 3rd party could be held liable by the 3rd party. Amy’s death brought to the fore the dangers of the unauthorized disclosure of SSN that a law was passed prohibiting the sale or dissemination of SSNs without a legitimate purpose.

Prior to the passage of the Philippine Data Privacy Law (R.A. 10173), I was a Consultant of the former Commission on Information Communication and Technology (CICT) on the separate bills covering cybercrimes and data privacy. I gave a white paper on the Data Privacy Bills which delineated several concerns I had, amongst them, the deleterious impact of the bills on the livelihood of scores of private detective agencies scattered all over the regions of the Philippines.

Private detective agencies under the Data Privacy Law and the Philippine Cybercrime Prevention Act (R.A. 10175) have no express legal authority or legal exemption to collect, process, preserve, or destroy any form of electronic data that constitutes personal information of any data subject, without first informing and getting the written consent of the data subject him/herself. Thus, the surreptitious methods, pretexting and covert operations that detective agencies do to acquire e-data would run contrary to the Data Privacy Law and make them liable to criminal and civil penalties with damages in favour of the data subjects they targeted.

In my lectures, I have mentioned that it is crucial that the National Privacy Commission (NPC) come up with an advisory opinion or proper Guidelines as to the parameters of the allowed operations or processing of personal information of data subjects by commercial and private information brokers like detective agencies. Without such Guidelines, all detective agencies in the Philippines are vulnerable to criminal charges of being data privacy violators.

In closing I would like to thank the very gracious, generous and great UC founder, Atty. Augusto W. Go, the very efficient, understanding and accommodating MCLE Committee and UC staff, the very bright and promising UC law students, and three amazing, gorgeous UC lawyers: Attys. Ria Lidia Espina, Annie Tan and Josh Carol Ventura! My mom and I are truly grateful for the splendid time we had there. Our compliments to the spacious, unpretentious and comfortable Alicia Apartelle which served some of the best crispy pata and lechon kawali we ever tasted! Deo Gratias!

Lawbytes 115: The Extra-Territorial Prosecution of Cyber Privacy Predators and Cybercriminals, Copyright by Dr. Atty. Noel G. Ramiscal

August 15, 2016 was an extra special day for my advocacies on several levels. It was the day when I got to debut a very new and hot topic for the UP IAJ [through the urging of the wonderful Ms. Mabel Perez] in their Mandatory Continuing Legal Education (MCLE) seminar series. This lecture, which I entitled “Trends and Issues in the Prosecution of Cyber Privacy Predators and Personal Information Thieves” is in all probability, the first time that would be tackled by any MCLE lecturer in the Philippines. The National Privacy Commission (NPC) was just established last March 8, 2016, despite the fact that the law (R.A. 10173) creating it was passed in 2012, and up to now, the lmplementing Rules and Regulations (I.R.R.) that the NPC was tasked to promulgate is still in the process of being finalized.

Dr. Atty. Noel G. Ramiscal, at his August 15, 2016 MCLE lecture for UP IAJ

The proposed I.R.R. seeks to create a Data Security and Compliance Office, a Legal and Enforcement Office and a Privacy Policy Office which are all crucial to the NPC, because as a quasi-judicial body, it would be deciding on data privacy violations arising from the different and new cybercrimes concerning data processing that R.A. 10173 established. Since the NPC is swamped with many issues concerning its existence and operations, I figured my lecture can help clarify some of these issues and point to some trends, standards or guidelines that these new offices need to be apprised of to do their jobs effectively.

I went through many essential concepts that are unique to the Data Privacy law, for a very attentive and receptive audience (none of whom slept during my lecture): from the right of informational privacy that was developed in Europe after the Second World War and the right to informational self-determination which was first recognized as a constitutionally guaranteed right in 1983 by the German Constitutional Court; to the explication of the right to be forgotten, and the relevance of our very own writ of habeas data in enforcing this right; to the right of portability and how that right had been enforced in some jurisdictions; to the right of transmissibility and my own advocacy for the establishment of a Digital Inheritance Law in the Philippines which would give access to the heirs of a decedent, and the police and prosecutors to e-data, particularly emails and social media e-data, that can give a clue to any foul play or crime that was perpetrated on the decedent; to the different types of identity theft, impersonation and misappropriation of personal information; to the role of encryption in securing our privacy; to the electronic means of stealing personal information like spamming and ransomware; to the types of electronic evidence that prosecutors should recognize and present in court as incriminating evidence; and everything in between.

Dr. Atty. Noel G. Ramiscal with Former Philippine Vice President, Atty. Jejomar C. Binay and a group of brilliant Ibanag lawyers who attended his MCLE LECTURE, AUGUST 15 2016

One of the most important concepts I discussed at some length is the extra-territorial application of R.A. 10173, as well as the Cybercrime Prevention Act (R.A. 10175). Prior to these laws, law students and lawyers were only taught criminal laws are primarily territorial in application, and the only way that courts can have jurisdiction over the person of the accused would be through the latter’s arrest, voluntary surrender or arraignment appearance.

The two laws changed all previous conceptions of the territorial application of Philippine criminal laws by broadening their scope. R.A. 10175 made it easier to file any cybercrime case in a Philippine cybercrime court, even if the offender is not in the Philippines so long as any of these jurisdictional requirements are met: if the computer system which was used to commit the crime is situated wholly or partially in the Philippines; or when the offender is a Philippine citizen; or when any of the elements were committed in the Philippines; or when the offended party, natural or juridical, was in the Philippines when the offense was committed and experienced damage here.

In a similar manner, R.A. 10173 and its proposed I.R.R. made filing a cybercrime case for any unlawful data processing of the personal information of a data subject apparently simpler, by requiring the fulfilment of any of these conditions: the data wrongfully processed belongs to a Philippine citizen or resident; or the data processor [personal information controller or personal information processor] has a Philippine link. The linkage can be through the fact that the data processor processes personal information in the Philippines; or carries business in the Philippines; or uses equipment located in the country, or maintains an office, branch or agency in the Philippines for processing of personal data; or has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information. If the data processor processes the personal information outside the Philippines, it could still be held liable as long as the information is about Philippine citizens or residents. Other links include the data processor having entered into a contract in the Philippines; or if it’s not incorporated in the Philippines, it somehow “has central management and control in the country”.

Some lawyers who attended Dr. Noel G. Ramiscal’s MCLE lecture PROSECUTING CYBERPRIVACY PREDATORS, AUGUST 15, 2016

While these jurisdictional “links” or anchors that Philippine prosecutors can now use to go after cybercriminals in other countries legally exist, I gave a cautionary note in their enforcement. In this “cloud” era, incriminating or offending data can easily be transferred to different servers in different countries and the challenge for the prosecution is how to have access to these data, present them in a Philippine court and bring the criminals to justice. In the controversial and recently decided case involving the US government against Microsoft, Microsoft refused to honor and moved for the quashal of the search warrant issued by District Judge Francis of the Southern District Court of New York that would have given the US DOJ and FBI access to the electronically stored data of a person under investigation for drug charges. Microsoft’s refusal was based on the fact that the data which belonged to one of its customers is physically stored in a server located in Dublin, Northern Ireland. The case was elevated to the Chief Judge of the same District Court of New York who affirmed the findings of Judge Francis.

The District Court’s rulings were based on the appreciation of the nature of search warrants for cloud e-data. The court noted that it is a “hybrid order” that is “executed like a subpoena in that it is served on the ISP [Internet Service Provider] in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the email account in question.” The service of the warrant and the seizure of the e-data can be completed not from the physical location of the server but from any remote location by a certified Microsoft owned computer that has lawful access to, and control of the e-data. The relevant test is not one of location, but of control. In ruling like this, the District Court overturned the territorial principle in the application of search warrants outside of the U.S.

As expected, Microsoft appealed this decision to the U.S. Court of Appeals, and the Second Circuit of the Court of Appeals came out with a decision last July 14, 2016 reversing the District Court’s ruling, and vindicating the privacy rights of the subscribers of Microsoft’s cloud services. The Court of Appeals, through Judge Susan Carney, emphatically stated that the U.S. Stored Communications Act, under which the search warrant was issued, was intended by the U.S. Congress to apply only to information that is domestically stored in the U.S., and not to e-data that are physically located outside its boundaries. To decide in the manner of the District Judge would mean the abandonment of the time honoured territoriality principle which the Court of Appeals stated “(w)e are not at liberty to do so.” The Court of Appeals, among others, reversed the decision of the District Court and remanded the case back to it with instructions the quash the search warrant, insofar as it directs Microsoft to produce customer content outside of the U.S.

Some of the lawyers who attended Dr. Ramiscal’s lecture on Prosecuting Cyberprivacy Predators and ID Thieves, AUGUST 15 2016

One comment that I have on this is that the US government pursued this process in order to evade the Data Privacy Law of Northern Ireland and bypass the Mutual Legal Assistance Treaty (MLAT) process it has with this country, as shortcuts. But it took them longer than they imagined. This case was brought to Judge Francis last 2013, and decided by the Court of Appeals in July 14, 2016. Had the U.S. Government gone through the MLAT process, it might have succeeded in getting the e-data it required in a shorter time, instead of having the lengthy litigation which proved futile for its cause, and the negative publication it received from the international diplomatic and business community.

Since R.A. 10175 expressly mentioned MLATs as a way of enforcing its provisions, it is my suggestion that this is a valuable tool in the arsenal of prosecutors, which they must master, in terms of going after criminals outside Philippine territory. Under the law (R.A. 10844) creating the Department of Communication Information Technology (DCIT), this agency was placed in charge of the Cybercrime Investigation and Coordination Center (CICC) which would be attached to it. The law specifically stated “(i) All powers and functions related to cybersecurity including, but not limited to the formulation of the National Cybersecurity Plan, establishment of the National Computer Emergency Response Team (CERT), and the facilitation of international cooperation on intelligence regarding cybersecurity matters are transferred to the Department”. Under this set-up, the DCIT will be engaged with the DOJ in terms of the international aspects of cybercrime. The DCIT must also be apprised with the MLATs, etc., so it can do its tasks well. The Philippines’ MLAT with the U.S. offers several measures that could effectively facilitate the production of evidence and even the forfeiture of the proceeds of the crimes committed against Philippine citizens by people or entities domiciled in the U.S. In fact, this could be used to go after the U.S. owners of the “wehaveyourdata.com” site which published the personal information of over 40 million registered Philippine voters in the massive breach of the Commission on Elections (COMELEC) e-database.

DR. RAMISCAL’S SKETCH BY ATTY. ADAN

One of the reasons why I said this was an extra-special occasion for me is that I got to meet the former Vice President of the Philippines, who is a very distinguished lawyer himself, Atty. Jejomar C. Binay, and a host of several Ibanag lawyers who are brilliant in their own fields who attended my lecture. It was also on this event that Atty. Dan Adan, a multi-talented lawyer, presented me with his pencil sketch of my image while I was lecturing. That was truly a first!

Warmest gratitude to UP IAJ, Prof. Daway and all their truly supportive staff, and the splendid lawyers who gave me their undivided attention and genuine interest for the two hours that I spent with them! God Bless Us!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WHEREFORE, the Court DECLARES:

1.VOID for being UNCONSTITUTIONAL:

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

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

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

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

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

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 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!