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

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

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

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

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

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

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

IBP CEBU CHAPTER LECTURE

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

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

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

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

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

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

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

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

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

THE CEBU UNIVERSITIES LECTURES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Braving Superstorm Glenda: The Passion and Commitment of Lawyers to the MCLE Program and the Need to Review and Amend the Philippine Rules concerning Social Media

Last July 16, 2014, Dr. Atty. Noel G. Ramiscal braved the elements to attend and deliver a lecture for the Mandatory Continuing Legal Education (MCLE) seminar series held by the University of the Philippines Institute of Administration of Justice (UP IAJ) at Jorge Bocobo Hall, UP Diliman Law Center. The travel on the way to UP from Calamba, Laguna was an eventful one (to say the least) with flying trees, shrubs, branches, slippery roads and covertly flooded intersections. He took four modes of transportation just to get to UP before 7 in the morning and prepare for his morning lecture. Dr. Ramiscal congratulated the thirty or so lawyers who attended the lecture despite “Glenda”. They provided the inspiration for his lecture.

Dr. Atty. Noel G. Ramiscal in his July 16, 2014 MCLE Lecture at the height of Superstorm “Glenda”

Dr. Ramiscal’s lecture focused on the ramifications of the Philippine Cybercrime Prevention Act of 2012, the Supreme Court’s decision on some of the constitutional challenges to this law and other relevant laws and rules of court on the electronic discovery of social media evidence.

What is more, Dr. Ramiscal also discussed the international developments concerning the service of process, summons, subpoenas, and court notices via social media. Several jurisdictions like Australia, Canada, New Zealand, the United Kingdom and some states of the United States have already recognized the necessity and importance of serving court processes via social media like FaceBook and Twitter to observe the important one of the important elements of due process, which is notice to the person involved. Since over 1.2 billion people have now subscribed to FaceBook, it is more than probable that serving court processes through it will fulfil this requirement and might be more effective than actual service, substituted service, or service by registered or ordinary mail. Dr. Ramiscal also apprised the lawyers about the 1965 “Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” which does not prohibit and can actually accommodate international service of process via social media.

Throughout his lecture, Dr. Ramiscal highlighted several rules in the current Philippine Rules of Court that need to be reviewed and amended to reflect and accommodate the developments in the discovery of social media evidence as well as the service of court processes to an appreciative audience.

Just as when he was about to leave, the UP IAJ staff requested him to deliver a second lecture since the lawyer who was scheduled to lecture could not make it due to some transportation issues. He fully understood and sympathized with everyone involved, including the lawyers who were already there to comply with their MCLE requirements, so he agreed. In a span of about twenty minutes he prepared a powerpoint presentation on significant developments concerning cybercrime in the Philippines which was quite different from his morning lecture and delivered it extemporaneously with as much panache and humor that he can muster, while outside of the UP Law Center “Glenda” mercilessly continued to batter everything on its path with its winds.

A great shout out to the UP IAJ staff, Atty. Golda Miñoza, Mesdames Mabel Perez and Zen Antonio, Ms. Eve and Mr. Ariel, all the fantastic lawyers that attended the lectures which showed their commitment to the MCLE and to the caterer and staff that served us great food for the soul! Thank you! God Bless Us!

Legal Ethics In the Use of Social Media

June 18, 2014 was another auspicious occasion in Dr. Atty. Noel G. Ramiscal’s legal advocacies relative to information technology law. He gave a three hour lecture on “LEGAL ETHICS IN THE USE OF INTERNET TOOLS AND SOCIAL MEDIA” during the Mandatory Continuing Legal Education (MCLE) seminar series organized by the University of the Philippines Institute of Administration of Justice (UP IAJ). It was the first time he was requested to lecture on social media and its effects and he gratefully took upon the challenge.

As stated by Dr. Ramiscal, the current ethics milieu in the Philippines pertaining to lawyers provides no guidance to lawyers and law firms that utilize social media to advertise their services. The Code of Professional Responsibility has yet to be revised in the light of digital technologies, their impact and implications on legal services, which were not known nor understood during the time this Code was formulated. Then too, the Electronic Evidence Rules of the Philippines that was promulgated by the Supreme Court way back in 2000 had not been amended to address pressing issues that practicing lawyers have to contend with in handling e-data, e-discovery and presenting e-data in court, let alone social media evidence. The Cybercrime Prevention Act of 2012 offer little assistance in dealing with ethical and legal issues that lawyers confront when they use social media.

In his lecture, Dr. Ramiscal highlighted certain internet search engines, resources and tools that lawyers can and should consider when they do their investigation pertaining to the cases they are handling, particularly when it comes to the social media data created and maintained by their clients, the opposing parties, the opposing parties’ counsels, the potential and actual witnesses and even on occasion the judges handling the cases, culled from cases and incidents in the US, UK, Canada and Australia. He impressed upon the importance how these social media data can incriminate clients, and impeach the testimony and credibility of witnesses. He also presented a roll of dishonor comprising of specific cases where lawyers were discredited, reprimanded, suspended or disbarred due to their use of social media which verged on the unethical and even criminal behavior.

He also shared with the lawyers who comprise the audience the results of his research covering about fifteen (15) State Bar associations in the United States as well as the American Bar Association (ABA). Dr. Ramiscal presented some of the sophisticated rules in ascertaining the ethical use of social media like FaceBook, Tweeter, LinkedIn, YouTube, Instagram, and others that these bar associations and the ABA have developed. Dr. Ramiscal also elucidated on some rules these association have laid down concerning metadata, hyperlinking, lawyer profiles, pay per ads, GroupOn ads, and other forms of online advertising and solicitation which have yet to be explored in the Philippine context.

Dr. Atty. Ramiscal with two members of the highly animated audience, Attys. Ballara and Amog, at the June 18, 2014 MCLE Lecture

Finally, Dr. Ramiscal emphasized the irreversible trend in the practice of law in the countries subject of his research that lawyers in the Philippines would do well to heed. The professional duties of competence and due diligence that lawyers owe to their clients would not only comprise honing their skills in investigation in real time, research and litigation, but require staying abreast with the developments in technology that greatly affect these areas. Some jurisdictions have articulated the lawyer’s “duty to Google” their clients and opposing parties, noting that judges are even taking judicial notice of information found on the Internet, which is a far cry from the perception that Internet is a repository of unreliable information that was expressed in a US decision over a decade ago.

As always, Dr. Ramiscal is grateful to the UP IAJ for the opportunity to present parts of his research and the lawyers who were very receptive and appreciative of his presentation and insights into the ethical and legal implications of using social media to further real time and online legal practice.