Introduction

The dawn of the new millennium has brought tremendous changes in global perspectives. The concept of unknown horizons and unexplored world terrains vanished. In a sense the huge world, which we thought was so vast that one cannot travel from one end to the other without spending one’s generation, shrank. Societies grew from interactional to isolated populace where each spends most of his time sitting in front of a computer. With the advent of such revolution the concept of Cyberspace was born and with it, the lives of the people and how they interact with one another correspondingly and dramatically changed.

William Gibson in his 1984 book Neuromancer first defined the word cyberspace as “a consensual hallucination experienced daily by billions of legitimate operators, in every nation by children being taught mathematical concepts. A graphical representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the non-space of the mind, clusters and constellations of data” (Gibson, 1989). Gibson envisioned that the development of high end computers and the birth of the Internet will create a holographic data bank wherein people will begin to metaphysically interact with people and environment. In a sense what he theorized as a non-space place in the minds of every citizen somehow came into reality.

Almost every kind of data may be found in the Cyberspace and with the advent of the Internet, access to them became a matter of seconds. As virtual as the Cyberspace may seem, what may be found in them are in straight graphical replica of what is real. The system of data access became revolutionized and from the macro schemes of things to the crudest representations of information, even information and on-line interaction between people became possible.

The concepts of on-line communication through the Internet, use of interactive cameras, blogs, E-mails, Youtube, on-line posts, and other related terms were born and with it the way societies interact and even behave changed. Human interactions and some of the traditional way people deal with other people in the society even the way stalking and bullying greatly changed.

This paper is conceptualized to shed light upon the revolutionized way by which stalking and bullying is carried out in various socio-political context. It is hoped that the concept of cyber stalking and cyber bullying be given an extensive definition and be contextualized in the Philippine setting. It is also hoped that effects from the micro-level and macro-level of understanding be relayed with the end view of justifying the harshness and severity of the damage and injury such acts cause. This paper will also attempt to lay the legal grounds by which cyber stalking and cyber bullying legislation will be based and will involve analysis of the current applicable laws on the subject matter including an analysis on the sufficiency and insufficiency of the laws available designed to prevent the practice of such acts and recommend, if applicable, for further enactments of laws punishing such acts if it will appear that available laws are insufficient to encompass the same.

Stalking and Bullying: Concept and Definition

The concept of stalking and bullying as a negative social behavior has been a social phenomenon for a long time now. Psychologists and social scientists would always dissect its causes and effects and would always relate its definition from a wide range of social spectrum from post traumatic stress to negative social experiences. In the book “The Bully, the Bullied, and the Bystander” (Coloroso 2003), bullying is defined as a negative form of behavior usually involving an imbalance of power between two individuals, a repetitive behavior usually involving verbal harassment, physical assault, and other moderate means of coercion and manipulation. Stalking on the other hand has been scarcely defined as a behavior usually connected with an unwanted attention from a stranger towards someone with no legitimate or clear reason (Meloy 2001). Bullying and stalking are “abnormal” behaviors disruptive of standardized norms. Victims of such negative behavior usually exhibits fear and anxiety and had no other protective means by which they can cloak themselves but resort to clinical therapy from psychiatrists. The effects of such untoward phenomenon is normally incapable of empirical estimation and usually the victim or victims become counter-productive at the expense of social harmony.

Throughout the years stalking and bullying have been exhibited in almost all kinds of environment but a bulk of such cases especially bullying usually happen in schools and the perpetrators are normally children from pre-school to high school. Stalking on the other hand does not have an exact environment or perpetrator age-group because of its process which involves a sequence of events and is committed from anywhere from the point from where the victim reside up to their places of study, work, recreation, etc.

Article II Section 5 of the 1987 Philippine Constitution states that, “the maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all people of the blessings of democracy.” One of the avowed policy of the government is the promotion of the general welfare of the people and in order to enjoy peace and order means curbing untoward behavior which essentially disrupts social harmony. As the act of bullying usually transpire among children, it is hard to impose punitive justice against them. As the effect of bullying manifest in different forms, the more evident manifestation by which the law may interfere is when physical assault was committed. However, since the perpetrators are mostly children under the age of majority, the restorative form of justice embodied in Republic Act 9344 or the Juvenile Justice Law i semployed wherein child offenders are subjected to intervention program and is brought to child caring institutions in the hope of reintegrating him in the society.

Stalking on the other hand, due to the circumstances by which it was committed, do not have an exact enabling law by which it is punished. Stalking involves actions wherein the perpetrator or stalker would follow the activities of the victim and is normally tagged as following another person’s movement from one place to another. At most, the victim may avail of the provisions under Article 202 (4) and Article 287 of the Revised Penal Code. Under Article 202 (4) of the Revised Penal Code, any person who, not being included in the provisions of other articles in this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable causes and who shall be found guilty thereof shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correctional in its medium period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. Article 287 of the same punishing unjust vexation by arresto menor or a fine ranging from 5 to 200 pesos, or both. The duration of such penalties, which ranges from one month and one day to six months in case of arresto mayor and one day to thirty days in case of arresto menor, and the meager fines by which the offenses are punished cannot surpass the psychological trauma and other effects of such negative behaviors.

The Birth of Cyber stalking and Cyber bullying

In the advent of the technological revolution, these negative behaviors took a different path in the way it is committed and in the place where it is committed. With the use of Internet, such as e-mails, blogs, on-line posts, social networking sites, Youtube, etc., the means by which stalking and bullying is carried out to torment others took another form. With the way the internet is being used and the availability of almost all kinds of information and the revolutionary on-line communication using web cameras, cyber stalking and cyber bullying was born.

Cyber stalking

Cyber stalking is generally defined as the use of Internet or other related means to stalk someone. It has been scholarly defined as the use of information and communications technology, particularly the Internet, by an individual or group of individuals, to harass another individual, group, or organization. It involves false accusations, monitoring, the transmission of threats, identity theft, damage to data or equipment, the solicitation of minors for sexual purposes, and gathering information for harassment purposes (Bocij 2004).

The effect upon the individual who fall as victim to such disruptive behavior ranges from mild psychological stress to anxiety and paranoia. Perpetrators usually use the flexibility of the Internet to obtain information about the victim by tracing their IP address thereby accessing their home, office, or school address. It may also come in a form wherein an individual or group of individuals or, in case of syndicated cyber crimes, organizations use blog sites, e-mails, social networking sites such as Friendster, Twitter, Facebook, Tagged, and the likes to discredit an individual or organization. It is accompanied by a malicious intent to damage one’s reputation by sending malicious and false accusations against them for the purpose of discrediting their victims.

Recently, a blog posted by an individual discrediting a government agency for its alleged hoarding of donated goods made an erstwhile media mob prompting internal strife, instability, and agency-wide investigation to trace the accuracy of the blog. It even reached international landscape as some of the donors are foreign countries aiding in the relief operations of the government for the casualties of the recent destructive typhoons. The investigation is still on going however the damage caused by the blog upon the reputation of the agency appears irreparable.

With on-line posts which can be both in written and visual communication, one may be able to discredit or simply harass another by uploading, in the case of visual communication, pictures, messages, video recording involving another person, group of persons or organization in the Youtube or other similar sites. Threats are also sent through e-mails and other similar form of internet communication. Another popular way by which cyber stalking transpire is by monitoring their private activities using high-end communication gadgets ran by the internet and other form of information technology tools. Trained and highly technical skilled individuals may tap upon streetlights, building cameras and CCTVs to follow one’s movement. Without any legitimate purpose, they seemingly spy upon another’s activity without any clear design other than to harass them.

On-line dating sites which is now becoming popular are also means by which a cyber stalkers can carry out their misdeeds. Actual meet-ups through such sites can be arranged by the cyber stalker and from then on follow their victims to their respective abode and all other places where the victim may go. It is clear that maliciously and consciously, cyber stalkers create a sense of fear from their victims where the latter would inevitably develop defense mechanisms which can come in different forms depending upon that individual’s pyshcological make-up. Usually it creates negative impacts causing stress and trauma in defiance to what is supposedly a peaceful and harmonious society.

Cyber bullying

Cyber bullying on the other hand may be defined as an act of bullying another individual, group of idividuals, organization through the use of the Internet or other similar means. It has been also defined as a situation when a child or teen is repeatedly tormented, threatened, harassed, humiliated, embarassed or otherwise targeted by another child or teen using text messages using the Short Messaging System (SMS), e-mails, or any other type of digital technology (Pacthin and Hinuja 2009). It is usually manifested through continuous sending of e-mail, SMS messages, or other similar type of digital communication devices or Internet-based gadgets to an individual despite the latter’s plea that he or she does not want any further contact with the sender. It also includes threats, sexual remarks, hate messages, or any other means by which one is ganged up by making them the subject of ridicule in chat rooms, public on-line forums, and the likes designed nothing more but to humiliate and harass.

Although generally cyber bullying is attributed to children or teens, it is also committed by an adult who does not have any legitimate agenda against another and simply wants to publicly harass, embarrass or humiliate another. One of the most famous way by which cyber bullying is carried out is when a person, or group of persons maliciously pose as their victims through a established replica of the latter’s e-mail, blog site and SMS messages to solicit material remuneration or simply act and behave foolishly to discredit the victim. Some cyber-bullies use public on-line sites to defame another or threaten to defame them if the victim would not give in to their whims and wishes. Some threaten and publish gossip or rumors on similar public on-line sites to instigate others to gang up on the target. Some use such means to solicit sexual favors and threatens to continue embarrassing the victims if the latter would report to authorities.

In 2008 researches from the University of Wisconsin-Eau Claire documented that cyber bullying has been steadily increasing in alarming rates through the years. Using a random sample of about 2000 middle-school students as respondents from a large district in the southern part of the United States, about 10% admitted to have been cyber-bullied in the previous 30 days while over 17% admitted to have been bullied at least once in their early stages of schooling (Patchin and Hinduja 2009). The research has been concentrated on children and teens because of the frequency by which they use the internet. It is posited however that since adults also frequently use Internet-based computers and gadgets, earlier research also points out to the high rate of bullying among adults. Just like cyber stalking, cyber bullying may have far reaching psychological effects upon a victim. Fear, anxiety, restlessness and other psychological drawbacks may damage another’s welfare and physical well-being. Victims may also develop low esteem that may often leave them unproductive and lacking in self-confidence which may eventually damage their social worth.

Cyber stalking and Cyber bullying Legislations

The first cyber stalking law took effect in 1999 in California, US while the first cyber bullying law took effect in 2007 in states including New York, Missouri, Rhode Island and Maryland.

At present, the Philippines has no explicit legilation on cyber stalking or cyber bullying. Nevertheless using the aforementioned definition of cyber staking petaining to the involvement of false accusations, transmission of threats, identity theft, damage to data or equipment, certain acts could be subsued in the acts prohibited under the Republic Act No. 8792, An Act Providing for the Recognition and Use of Electronic Commercial and non-comercial Transactions and Documents,Penalties for Unlawful Use Thereof and for other Purpose or the E-Commerce Act, to wit:

SEC. 33. Penalties. - The following Acts shall be penalized by fine and/or imprisonment, as follows:

1. Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communications system, including theintroduction of computer viruses and the like, resulting in the corruption,destruction, alteration, theft or loss of electronic data messages or electronic document shall be punished by a minimum fine of one hundredthousand pesos (P100,000.00) and a maximum commensurate to thedamage incurred and a mandatory imprisonment of six (6) months tothree (3) years.

It is apparent that the above-mentioned law only provides penalties to specfic acts done to promote cyber stalking. It only subsued the tip of the gamut of cyber stalking. The danger that is posed by cyber bullying and cyber stalking has more far-fetching residues and ripples upon social peace and order. For someone to haunt another’s peace of mind debases morality and effectively undermine trust and confidence in the social forces that is supposed to safeguard people’s welfare against social harms.

Despite the lack of clear cut legislation designed to curb cyber stalking and cyber bullying, there are current efforts recognizing the dangers that these negative practices bring upon an individual or group of individuals in a society. In April 2009, Senator Juan Ponce Enrile filed Senate Bill No. 3177 entitled An Act Defining Cybercrime, providing for the prevention, supression and imposition of penalties and for other purposes. The Bill recognizes the stark advantage of the internet as it is nowadays a necessity and a tool for development and efficiency. However it also recognizes the growing criminal perpetrators using the internet in carrying out their illegal activities. The Bill seeks to define what consitutes cybercrime and has mentioned in passing cyber stalking as an emerging trend espousing safer medium to stalk someone as this will not require physical presence when committing the misdeed and would only require an internet capable computer system. In the said proposed law however, cyber stalking and cyber bullying were not extensively mentioned as one of the cybercrimes needed to be addressed. It specifically tackled child pornography using the internet as well as Internet espionage and similar scenarios.

Senator Manny Villar on March of this year filed Senate Resolution No. 915 entitled A Resolution Urging the Senate Committees on Science and Technology, Public Information and Mass Media and other Appropriate Committees To Conduct an Inquiry in Aid of Legislation, on the occurrence of Cyber Stalking Cases and the Modus Operandi Adopted to Perpetuate Crimes in the Internet with the end view of formulating a policy that will curb cyber stalking and protect on-line users in the country. The author keenly recognized the danger posed by someone pretending to be another person using the account of that person to solicit money and or perpetuate criminal activities such as extortion, sexual harassment and other forms of crimes. At present, the Resolution has yet to be passed upon by the Senate and is pending hearing before the appropriate committees. Cyber bullying however do not have, as of the moment, similar legislative recognition. As dangerous as cyber stalking, bullying on the Internet may qualify as a cybercrime under the E-commerce law but it may have a semblance in the proposed bill of Senator Enrile.

Conclusion and Recommendation

In the micro level schemes of things, the psychological effects of cyber stalking and cyber bullying embeds upon an individual’s social being and effectively stunt one’s pyschological development. Experts commonly attribute depression, anxiety, social isolation, nevousness after interfacing with technological equipment, lowered self-esteem, deficits in school performance, impaired health, and criminal tendencies as an adaptive form of behavior (Kowalski, Limber, and Agatston 2008). The psychological effects of such phenomenon undermines one’s basic adaptation and cultural assimilation. Establishing grounds for one to have criminal tendencies in the future because of such phenomenon destroys the fundamental concept of order in a society.

Preventing the phenomenon of cyber stalking and cyber bullying on the level of social based safety nets such as intervention programs offered by agencies catering the same may not be sufficient to curb such occurrence. It has been discovered through various researches conducted recently that those who were cyber-bullied are reluctant to even tell their relatives and peers that they were cyber-bullied for a lot of reasons and what is most glaring is that some does not even know they were cyber-bullied. Fear of retaliation and the thought of parents witholding cellular phones, computers and other Internet-based gadgets do prevent some children cyber-bullied from reporting the same (Kowalski, Limber, and Agatston 2008).

Cyber stalking is equally psychologically devastating to the victims, eventhough no physical contact in the perpetration of the said act. Victims of cyber stalking often experience psychological trauma, emotional breakdowns, changes in sleeping patterns, anxiety, helplessness, and declining health. It is clear therefore that cyber bullying and cyber stalking have devastating effects to an individual’s social well-being and to view it in a holistic perspective, contninuous proliferation of the same acts will bring about social discomfort, harm and even chaos. Strong advocacies to help fight such phenomenon is a necessity and informing and capacitating people from the intricacies of such phenomenon and a strong legislative will to enact laws establishing the grounds for penalizing such actions are necessary course of actions to stop the spread of such negative behaviors.

It is evident that available laws relating to cyber stalking and cyber bullying are not comprehensive enough to cover such acts. Proposed legislative enactments have yet to reach the stage when it becomes a full blown law after complying with the requirements set by law.

It is important to understand however, that cyber stalking and cyber bullying are relatively new phenomenon in the country. This is the reason why there are no laws specifically pertaining thereto as of the present time. The E-Commerce law may be used to encompass other related activities but the scope of the said law is not comprehensive enough to include specific crimes of cyber stalking and cyber bullying. Despite several proposed enactments and resolutions by the Legislative arm of the government, there is still a need to concretize specific enabling laws that will establish legal grounds for singling out acts of cyber stalking and cyber bullying and penalizing the same. Without a specific law to criminalize such acts, aggrieved parties may be left with no other recourse but to file for civil damages using the general law on human relations enshrined under Article 19 of the Civil Code of the Philippines which aptly states that:

Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

In the absence of such enabling law to criminalize such acts and provide penalties for the commission of such, the victim may only claim civil damages by way of filing cases on the basis of the above-mentioned provision. The perpetrator may pay the indemnity but may get away scott-free from the acts which he or she committed. The penalty provided by existing law do not commensurate to the damage and injury that such acts produce.

The vastness of uncertainty and abyss in the old world has diminished. Such social state subjects all people from cyber stalking and cyber bullying and exposes them to danger and risk of undermining their overall well-being. To appeal that perpetrators of such acts should be punished in a more severe manner cannot hold ground for under the law in order to fully prosecute individuals committing such acts. There must be a legal basis whereby courts may be guided as to what kind of acts, degree of severity, and the corresponding penalties each and every defined act therein will be penalized. As there is no such law such appeal should fail. As the famous criminal law principle aptly provide “there is no crime when there is no law punishing it” and cyber stalking and cyber bullying however severe and damaging their impacts would be cannot be punished unless there is specific legal provision stating otherwise.

References

• Bocij, Paul. Cyber stalking: Harassment in the Internet Age and How to Protect Your Family. Praeger, 2004, p. 14
• Coloroso, Barbara. The Bully, the Bullied, and the Bystander. Collins Living Publishing. February 2004
• Gibson, W. Neuromancer. New York, Berkely Publishing Group 1989. pp.128
• Kowalski RM, Limber SP, Agatston PW. Cyber Bullying: Bullying in the Digital Age. Malden, MA: Blackwell Publishing; 2008.
• Meloy, J Reid. The Psychology of Stalking: Clinical and Forensic Perspectives. Academic Press. May 1, 2001
• Patchin J.W., Hinuja S. Bullying Beyond the Schoolyard: Preventing and Responding to Cyber bullying. Sage Publications. Corwin Press, 2009
• http://en.wikipedia.org/wiki/Cyber-bullying
• http://en.wikipedia.org/wiki/Cyberstalking
• http://www.victimbar.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32458

I. Introduction

In the loan process, one important aspect is the processing of a loan application. Processing starts after the borrower had submitted the client information sheet and the pertinent documents needed for the loan. The “processor” reviews the credit reports and verifies the borrower’s debts and payment histories. If there are unacceptable late payments, collections for judgment, inter alia; a written explanation is required from the borrower. The processor also reviews the appraisal and survey and checks for property issues that may require further discernment.of the procedure in the loan.¹

During that process, credit checks and investigations are being conducted to show the credit worthiness and credit standing of the borrower. The purpose of the credit investigation is for these financial institutions to know if the borrower/s is/are capable of paying their loan, debt or obligation because in a contract of loan, a person who receives a loan of money or any fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality.²

In this electronic age, credit investigation evolved and was simplified for the financial institutions. By the click of the computer keys, the credit worthiness and credit standing of the borrower will be projected on the computer screen. These financial institutions depend on the private-sector initiatives such as the Bankers Association of the Philippines Credit Bureau, Inc. (BAP-CB), Credit Information Bureau Inc. (CIBI) and Credit Management Association of the Philippines (CMAP) and the like which maintain credit worthiness records.

The BAP-CB was established initially to facilitate the exchange of credit information among member banks and eventually to provide relevant credit information services for all member banks.³ CIBI is a non-stock, non-profit organization, a creation of the Bangko Sentral ng Pilipinas (Philippine Central Bank), the Securities and Exchange Commission and the Financial Executives Institute of the Philippines and is engaged in the supply of business information and credit services.⁴ While CMAP non-stock, non-profit entity was conceptualized by some credit men met and discussed the credit problems of their companies who envisioned a need to form an organization, which would promote credit information interchange as well as foster fellowship and camaraderie among creditmen.⁵

The rationale of the establishment of these private-sectors is attendant to the main objective, to simplify the process of credit investigation utilizing networking among peers and gathered credit information. These private-sectors collated, develop and analyze credit information on individuals, institutions and all types of business.⁶ And provide an impartial source of credit information for debtors, creditors, the public and its member subscribers.⁷ The credit information is disseminated electronically through web access by a subscriber for a reasonable fee per inquiry or per entity. The credit information includes such as but not limited to loan exposures and negative checks on the borrowers and property appraisals/valuation and title verifications on the collaterals being offered by the borrowers.

Now comes, Republic Act No. 9510, Credit Information System Act (CISA).

II. Electronically Generated Credit Information

Credit Information refers to information/data regarding the credit standing or credit worthiness of the borrower being accessed and generated electronically through websites and other means of communications. The law provides that “the Corporation shall acquire and use state-of-the-art technology and facilities in its operations to ensure its continuing competence and capability to provide updated negative and positive credit information; to enable the Corporation to relay credit information electronically as well as in writing to those authorized to have access to the credit information system; and to insure accuracy of collected, stored and disseminated credit information. The Corporation shall implement a borrower’s identification system for the purpose of consolidating credit information.”⁸ As can be realized from the provision of the law, Congress’ intention is that the Credit Information to be by electronics means for easy access and storing like the ones introduced by the private-sector.

III. Kinds of information that can be gathered from a Credit Information

Loan Exposures refer to a credit information exchange among banks, thrift banks and other financing companies that provides credit-dealing reports on individual and corporate borrowers. This will reveal when the lender granted the loan to the borrower, the date of its maturity, the type of loan facilities granted to the borrower, collaterals or securities offered for the loan, over due accounts if any and the remarks of the financial institutions on the borrower.

Negative Checks refer to a credit information system that provides subscribers on borrowers and clients with adverse records, records of credit cards cancelled due to mishandling, current accounts closed by the banks due to improper handling, loans classified as foreclose, litigation and written off accounts and court cases.

Other kinds of Credit Information that may be produced and generated are Property Appraisals/Valuation, which refers to an electronic credit information system that provides subscribers on the fair market values of real estate properties held by banks and financial institutions as loan collaterals and foreclosed/dacioned assets, and Title Verifications, which refers to an electronic credit information system that provides subscribers on spurious, non-existent, or questionable land titles.

1. www.americanloansearch.com
2. Art. 1953 of R.A. # 386
3. www1.bapcb.com
4. www.cibi.net.ph
5. www.cmap.com.ph
6. www1.bapcb.com
7. ibid.
8. Sec.5 (i) of R.A. No. 9510

INTRODUCTION

Text messaging or otherwise known as “texting” here in our country has become one of the more popular way of long distance communication with another person due to its economical value and convenience compared to actual mobile phone calls or sending electronic mails through the use of a computer connected to the internet. This is true not only for the youth but is applicable to all ages among Filipinos as well. In fact, the Philippines has been branded as the Texting Capital of the World due to the overwhelming number of Short Message Service (SMS) or text messages it sends each day.

Aside from texting, the mobile phone has evolved from being just a simple telephone device into a miniature mobile computer which can now provide additional features or services such as chatting, voice-mail, news updates, e-mailing, internet browsing, and even creating, receiving and sending of image and audio files. This technological development has brought so many advantages to people around the world in terms of telecommunications. However, just like any technology, the mobile phone has its downsides and one of which is its being used as a medium for illegal activities such as pornography. Sex videos, scandals, clips through Multimedia Messaging Service or MMS and pornographic images have been propagated to mobile phones. Daily unsolicited text messages containing advertisements, solicitations, various offers coming from the cellular networks, its affiliates and even those unwanted messages such as text scams coming from unknown pre-paid mobile numbers have been very frustrating and annoying to mobile phone users. It is not surprising that mobile phones through text messages containing offensive languages or materials are also being used to sexually harass others especially women.

The above introductory statements therefore lead us to the following interesting questions involving SMS of mobile phones: Is sending obscene text messages or “sexting” illegal here in our country? If so, are there enacted laws defining and punishing such crime? If you were the recipient of an SMS with obscene or malicious contents or an MMS with pornographic materials, would you be able to prosecute such sender for any punishable offense under our laws? These are just some of the questions this research paper will try to answer.

WHAT IS SMS?

Short Message Service (SMS) is a communication service standardized in the GSM mobile communication system, using standardized communications protocols allowing the interchange of short text messages between mobile telephone devices. SMS text messaging is the most widely used data application on the planet, with 2.4 billion active users, or 74% of all mobile phone subscribers sending and receiving text messages on their phones.¹ The SMS technology has facilitated the development and growth of text messaging. The connection between the phenomenon of text messaging and the underlying technology is so great that in parts of the world the term “SMS” is used as a synonym for a text message or the act of sending a text message, even when a different protocol is being used.²

DEFINITION OF OBSCENITY

An outright and strict legal definition has yet to be provided. The Supreme Court, however, in the 1989 case of Pita v. Court of Appeals, laid down three conditions for a material to be considered obscene:

1. Whether the average person, applying contemporary community standards, would find the material, taken as a whole, appealing to prurient interest.
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.³

The above current legal definition of obscenity is found in the US Supreme Court case of Miller v. California in 1973 which was the basis of our Supreme Court in ruling the case of Pita vs. Court of Appeals, hence called the “Miller Test”.

PROBLEM AND RECOMMENDATION

Now that we have a legal definition of obscenity, the problem that has to be surmounted if text messages with obscene contents are sent to your mobile phone is how to pin down the message sender. First, it must be established that the mobile phone where the message complained of came from is actually owned by the person you are going to sue for any possible criminal offense. Then, it must be established that the owner of the mobile phone was the one who actually sent the message containing the obscene materials you are complaining of.

Text messages or SMS are now considered evidence under the Law on Electronic Evidence. The Electronic Commerce Act or Republic Act 8792 was passed on June 14, 2000 to make electronic data message part of the rules of evidence. This law now allows text messages to be admitted as evidence based on the following pertinent applicable provisions of the law:

Sec. 4. Sphere of Application. - This Act shall apply to any kind of data message and electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information.

Sec. 5. Definition of Terms. - For the purposes of this Act, the following terms are defined, as follows:

3. “Electronic Data Message” refers to information generated, sent, received or stored by electronic, optical or similar means.

6. “Electronic Document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

Sec. 6. Legal Recognition of Data Messages. - Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message.

Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and –

xxx

SEC. 12. Admissibility and Evidential Weight of Electronic Data Message and Electronic Documents. - In any legal proceedings, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence -

1. On the sole ground that it is in electronic form; or
2. On the ground that it is not in the standard written form and electronic data message or electronic document meeting, and complying with the requirements under Sections 6 or 7 hereof shall be the best evidence of the agreement and transaction contained therein.

In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factors shall be given due regard.

SEC. 14. Proof By Affidavit. - The matters referred to in Section 12, on admissibility and Section 9, on the presumption of integrity, may be presumed to have been established by an affidavit given to the best of the deponent’s knowledge subject to the rights of parties in interest as defined in the following section.

The Rules on Electronic Evidence at first was applicable only to civil, quasi-judicial and administrative proceedings. The law, however, was amended later to include criminal cases in its coverage under Section 2, Rule 1, of AM No. 01-7-01-SC as follows:

Section 2. Cases covered. - These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases.

On a worst situation, if there would be no direct pieces of evidence, the complainant could resort to proving what is known as circumstantial evidence.

Circumstantial evidence is that pieces of evidence of things and incidents which, though not directly pointing to anyone as the criminal offender but when taken together would nevertheless establish a reasonable certainty that the accused could be guilty of the crime being imputed to him. This can be found under Section 4 of Rule 133 Rules on Evidence, Weight and Sufficiency of Evidence, under the Rules of Court:

Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:

1. There is more than one circumstances;
2. The facts from which the inferences are derived are proven; and
3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

An example of circumstantial evidence could be statements made by the offender to other people admitting ownership of the obscene text messages. Hence, those people could be admitted as witnesses for the complainant.

APPLICABLE LAWS

It would appear that there are no specific laws punishing “sexting” as a criminal offense. However, there are existing laws which can be used as a basis to prosecute such offenders.

Act No. 3815, or the Revised Penal Code (RPC), was promulgated way back in 1930, decades before the advent of computers and the Internet and before the proliferation of cheap image capturing devices, such video recorders and cameras.⁴ Article 200 of the Revised Penal Code provides:

Article 200. Grave scandal. – The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

Thus, “sexting” may fall under the above provision of the law. Another provision under the Revised Penal Code which may be applicable is Article 287, 2nd paragraph:

“Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both.”

However, due to its absence of definition, the crime of unjust vexation suffers from defects and maybe declared unconstitutional according to Senator Miriam Defensor Santiago for the following reasons:

1. Article 287, paragraph 2 of the Revised Penal Code condemns no specific or definite act or omission thus failing to define any crime or felony;
2. Said penal provision is so indefinite, vague and overbroad as not to enable it to be known what act is forbidden;
3. Such vagueness and overbreadth result to violation of the due process clause and the right to be informed of the nature of the offense charged; and
4. Such vagueness and overbreadth likewise amount to an invalid delegation by Congress of its legislative power to the courts to determine what acts should be held criminal and punishable.

The state having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what act or acts shall constitute a crime.

It is a well-established doctrine that a criminal or penal law must clearly define or specify the particular acts or omissions punished by such law. Hence, Senator Santiago has authored a bill, SB No. 3327, proposing the following amendment as follows:

SECTION 2. Defining the Crime of Unjust Vexation - A new Article 287-A defining the crime of Unjust Vexation and providing for its penalty shall be included in Act No. 3815 otherwise known as the Revised Penal Code, which read as follows:

Article. 287-A. Unjust Vexation - Any person who commits a course of conduct directed at a specific person that causes substantial emotional distress in such a person and serves no legitimate purpose shall suffer the penalty of arresto mayor in its minimum period or a fine ranging from 500 pesos to 5000 pesos, or both.

Another pending bill in the senate, this time authored by Senator Manny Villar, the Senate Bill No. 2464, which is called the ANTI-OBSCENITY AND PORNOGRAPHY ACT OF 2008, could also be used in prosecuting “sexting’ acts if it becomes a law. The pertinent provisions in the bill are as follows:

SEC. 2. Declaration of Policy. - It is the policy of the State to give special value to the dignity of every human person and to promote and safeguard its integrity and the moral, spiritual and social well-being of its citizenry, especially the youth in general and women in particular, from the pernicious effects of obscenity and pornography. To effectively enforce this policy, the government shall wage a relentless campaign against obscenity and pornography. Likewise, the government shall see to it that educational institutions are complying with their constitutional mandate to strengthen ethical and spiritual values and to develop moral character and personal discipline.

SEC. 3. Definition of Terms. - As used in this Act, the following terms shall mean:

1. “Obscene” refers to anything that is indecent or offensive or contrary to good customs or religious beliefs, principles or doctrines, or tends to corrupt or deprave the human mind, or is calculated to excite impure thoughts or arouse prurient interest, or violates the proprieties of language and human behavior, regardless of the motive of the producer, printer, publisher, writer, importer, seller, distributor or exhibitor such as, but not limited to:
1. showing, depicting or describing sexual acts;
2. showing, depicting or describing human sexual organs or the
3. showing, depicting or describing completely nude human
4. describing erotic reactions, feelings or experiences on sexual female breasts; bodies; acts; or
5. performing live sexual acts of whatever form.

xxx

SEC. 4. Punishable Acts. - The following acts are declared illegal and punishable:

xxx

4. Writing any obscene or pornographic article in any print or electronic medium;

xxx

SEC. 5. Penalties. - The following penalties shall be imposed upon any person found guilty of committing any of the prohibited acts under Section 4 of this Act:

xxx

4. For writing any obscene or pornographic article in any print or electronic medium, the penalty of imprisonment of not less than three (3) years nor more than six (6) years and a fine of not less than Two hundred thousand pesos (P200,000.00) nor more than Five hundred thousand pesos (P500,000.00) shall be imposed;

xxx

Any person found guilty of committing any of the acts punishable under this Act shall not be entitled to the benefits of the Probation Law.

xxx

SEC. 6. Witness Protection and Immunity from Prosecution. - Any person who provides material information, whether testimonial or documentary, necessary for the investigation or prosecution of any one committing any of the acts punishable under this Act and who testifies against such person shall be placed under the Witness Protection Program pursuant to Republic Act No. 6981 and shall be immune from any criminal prosecution, subject to the pertinent provisions of Presidential Decree No. 1732, otherwise known as the Decree Providing Immunity from Criminal Prosecution to Government Witnesses, and the pertinent provisions of the Rules of Court.

xxx

SEC. 7. Duties of Government Agencies Concerned. - In addition to the law enforcement agencies responsible for monitoring and implementing the provisions of existing laws on pornography, the following government agencies are hereby mandated to provide assistance and support to ensure the effective implementation of this Act:

xxx

4. National Telecommunications Commission (NTC);

xxx

The said agencies shall, in addition to their regular functions, exercise the following duties:

1. Monitor all mass media that fall within their respective jurisdiction;
2. Seek the assistance of local government units (LGUs) to identify the persons responsible for the proliferation of obscene and pornographic materials;
3. Initiate the prosecution of all persons involved in violation of this Act, Article 201 of the Revised Penal Code, as amended, and other related laws;
4. Receive complaints from the general public anent the proliferation of obscene materials within its jurisdiction and act accordingly on such complaints;
5. Recommend the cancellation of business permits of those found violating this Act, Article 201 of the Revised Penal Code, as amended, and other related laws; and
6. Perform such acts necessary to carry out the objectives of this Act.

xxx

SEC. 9. lmplernenfing Rules and Regulations. - Within ninety (90) days from the effectivity of this Act, the DOJ, the Department of the Interior and Local Government (DILG), the PNP, the PIA, the MTRCB, the OMB, the NTC, the NYC, the MMDA, the DPWH and other concerned government agencies shall jointly promulgate the implementing rules and regulations as may be necessary to ensure the efficient and effective implementation of the provisions of this Act:

Provided, That the absence. of such implementing rules and regulations shall not prevent the arrest, prosecution and conviction of any person committing an offense under this Act.

A counterpart similar bill, HB 03305 has been filed filed by its principal author Rep. Manuel “Way Kurat” E. Zamora in the House of Representatives.

Senator Loren Legarda, on her part, also has a pending bill, Senate Bill No. 1098, TO INCLUDE SENDING OF TEXT MESSAGES, ELECTRONIC MAIL IN THE SEXUAL HARASSMENT LAW COVERAGE, the pertinent provisions of the bill are as follows:

This bill seeks to expand the medium of Communication by which demands and requests for sexual favor which constitute acts of sexual harassments as defined under Republic Act No. 7877, otherwise known as the “Sexual Harassment Law” Republic Act No. 7877, which was enacted in 1995, is a landmark law providing a comprehensive policy and legal framework for the recognition of the problem of sexual harassment and penalizing perpetrators of said crime. Since its enactment, there has been unprecedented expansion in electronic and telecommunications such x cellular phones, text messaging, internet and electronic mail. Data from the National Telecommunications Commission shows that as of 2005, there are around 1.4 million subscribers of internet service providers and 34.77 million subscribers of cellular phones. Such modern forms of communication are widely used today and have been a comriron medium of work-related and personal communication. Like traditional forms of communication, these new forms of communication can be used to convey messages that are vulgar, smutty, sexists and may also be used to push for demand or request for sexual advances to sexually harass the recipients of such messages. This bill amends Section 3 of R.A. No. 7877 by expanding the coverage of sexual harassment acts to iiiclude sending text messages, electronic mail, internet and similar means of communication that constitute sexual harassment under the said law.

SECTION 1. Section 3 Republic Act 7877 is hereby amended to read as follows:

“SECTION 3. Work education or Training-related Sexual Harassment Defined - Work, education or training sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act OR THE SENDING OF TEXT MESSAGE, ELECTRONIC MAIL OR SIMILAR OTHER MEANS, PUSHING SEXUAL ADVANCE OR LURID REMARKS, CAUSING EMBARRASSMENT TO THE RECEIVER OR BY THEIR NATURE MAY QUALIFY AS VULGAR, SMUTTY, SEXIST, APPEALS TO PRURIENT INTEREST OR MALICIOUS.

1. In a work-related or employment environment, sexual harassment is committed VERBALLY, IN WRITING OR. THROUGH THE USE OF TELEPHONE, CELLULAR PHONE, FAX MACHINE, ELECTRONIC MAIL OF SIMILAR MEANS when:
1. The sexual favor is made as a condition in the hiring or in the employment, pre-employment or continued employment of said individual, or in granting said individual favorable compensation, term, condition, promotions, or privileges; or the refusal to grant the sexual favor result in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;
2. The ‘above acts would impair the employee’s right’s or privileges under existing labor laws; or
3. The above acts would result in an intimidating, hostile, or offensive environment for the employee.
2. In an education or training environment, sexual harassment is committed THROUGH ORAL, WRITTEN OR WITH THE USE OF TELEPHONE, CELLULAR PHONE, FAX MACHINE, ELECTRONIC MAIL OR SIMILAR MEANS
1. Against one who is under the care, custody or supervision of the offender;
2. x x x

Unfortunately, no similar bill is pending in the lower house as of this date.

CONCLUSION

In conclusion, sending obscene text messages or “sexting” is not only immoral but illegal as well. Legal remedies are available which may be resorted to by any offended party. There are existing laws which may be used as basis for prosecuting such criminal offenders and hopefully in the near future, the pending bills mentioned in my research will be passed into law. As proposed by Atty. Michael Vernon M. Guerrero in his study mentioned in my report, further regulation must be made in the proper use of telecommunication networks, especially as to the transmission of objectionable content and there should be a central registry of all pre-paid mobile phone users to determine the identity of the person who used said SIM card in the perpetuation of such offensive acts and that said registry should also include transaction dates of transfer of SIM. The National Telecommunications Commission (NTC), the government agency in charge of the regulation of the mobile phone industry, should strongly consider such proposal for the protection of the public consumers.

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Endnotes

1. http://en.wikipedia.org/wiki/SMS
2. ibid
3. There Oughta Be a Law! By Delmar Cariño / Philippine Daily Inquirer / First Posted 01:51:00 11/02/2008 / http://showbizandstyle.inquirer.net/sim/sim/view/20081102-169774/There-Oughta-Be-a-Law
4. http://berneguerrero.co-ph.com/2005/03/07/a-descriptive-study-on-cybersex-audio-visual-sex-scandals-and-child-pornography/

]]> http://techlaw.berneguerrero.com/2009/12/09/sexting-and-its-legal-implications/feed/ http://techlaw.berneguerrero.com/2009/12/09/rationalization-of-the-expiration-of-prepaid-cell-phone-load/ http://techlaw.berneguerrero.com/2009/12/09/rationalization-of-the-expiration-of-prepaid-cell-phone-load/#comments Wed, 09 Dec 2009 14:23:33 +0000 Berne http://techlaw.berneguerrero.com/2009/12/09/rationalization-of-the-expiration-of-prepaid-cell-phone-load/ by Jennifer S. Siasat

INTRODUCTION

The Philippines is considered as one of the prolific text messaging centers in the world. In 2007 alone, Filipinos sent an average of one billion text messages daily and went up to eighty percent in 2009 as a rising economy enables more people to buy mobile phones. Based on the records of the two leading telecommunication companies in our country, they have over 50 million subscribers and the country’s mobile penetration rate is around sixty percent.¹

Due to the wide range of mobile phones, pay phones are increasingly becoming obsolete. Phone cards are being sold by shops which sell cell phone loads and cards. In May 2003 Smart introduced a new service based on the Smart Buddy mobile commerce technology platform called Smart Load, the service enables the electronic transfer of airtime via SMS. ²

The booming of largely unexpected and extremely competitive mobile telephony in the Philippines is tempered with economic realities that many people live day-to-day with just the money in their pocket. For many Filipinos, neither a monthly subscription for cell phone usage nor saving money to purchase prepaid calling cards fits their lifestyle or purchase patterns.

In order to accommodate the needs of the public to communicate thru their mobile phone without the monthly subscription and the relatively high cost of cellphone cards, the prepaid calling and texting industry has come a long way. Smart’s answer was to eliminate the need for a physical card as the mechanism to purchase or re-load cellular phone minutes. As a result, by the end of the second quarter of 2003, Smart eliminated production and distribution of their P100 re-load card. Advertised by Smart as “telecoms in sachets,” the smaller denominations were designed for the low-income Filipino market that already purchases consumer goods in small quantities.³

Globe AutoLoadMAX on the other hand, is the popular service that exemplifies the concept of “sachet marketing” where you only buy what you need, when you need it. Globe Telecom has revolutionized the prepaid calling card foundation of the Philippine mobile phone industry by simplifying the process of loading airtime value onto a subscriber’s mobile phone. However, the very simplicity of the design and ubiquitous accessibility of the service generates enormous volumes of database transactions. To manage this in-demand service, Globe Telecom selected Sybase ASE for its speed, reliability, and small memory footprint. The Sybase-powered data infrastructure allows Globe Telecom to pursue sachet marketing while preserving efficiencies and managing costs.⁴

Aside from this “sachet marketing” which was introduced by Smart and Globe , prepaid cell phone cards had again penetrated the market with a minimum denomination of one hundred pesos. The consumers thereafter had the opportunity to choose on which of these services would fit their lifestyle to be able to still communicate with others thru their mobile phone. However, after years of servicing the public, the telecommunication companies are now facing the serious complaints from the consumers that the latter cannot get the value of what they pay for in terms of the services offered by prepaid calling companies. The consumer complaints of “vanishing loads” and the “setting of the expiration dates on the prepaid load” need to be given a serious attention.

Hence, this paper aims to discuss the rationale on the issues of diminishing of loads and the expiration dates previously set, its implication and its appropriate remedy to protect the interest of the public in general.

DISCUSSION

The main advantage of prepaid cell phones is the combination of freedom and control that they offer. With a prepaid cell phone, the user is not locked into a multi-year plan with a set number of minutes per month during specific calling and texting times, additional charges if he/she exceeds the limit and a costly fee if he/she breaks the contract. The user is free to talk whenever he/she wants, as long as he/she wants, until he/she runs out of minutes. And the user doesn’t have to pay a monthly bill. Talking more for one month and less makes no difference, and leftover minutes roll over from one month to the next. Plus, if the user wants to change to a different type of plan, a prepaid phone gives the user the freedom to switch whenever he wants.

The above mentioned advantages are now being coupled with the mounting complaints from the consumer section that the mysterious disappearance and expiration of their prepaid loads either in the form of cell cards or sachet marketing (E-load), is a clear indication that the interest of the consumer is at risk.

Senate President Juan Ponce Enrile complained that he too was a victim of what many refer to as “the vanishing load”. Senators thereafter, condemned the country’s mobile telecommunications providers for the alleged disappearance of prepaid card credits. A hearing was held by the joint Senate public service and trade and commerce to look into the supposed disappearance of credit load. Vice-President Noli De Castro supported the Senate investigation into the disappearance of the prepaid phone load because he himself was also a victim of the same “theft”.⁵ De Castro reiterated that the disappearance of load credit is a form of “theft” as the putting an expiry on the prepaid load was wrong since it was already bought and paid for in cash. The expiration on his load happened when he bought a 300 peso load before he went to Syria last April 15 and when he returned here the 300 peso load was already disappeared/expired even if he did not use even a single centavo from that said load credit.

During the Senate hearing on the case of Enrile’s missing load, a National Telecommunications Commision ( NTC) executive said it was a deregulated industry and cited the nine-year-old temporary restraining order issued by a court on the NTC when it tried to fix the rates for customers. “I have a feeling that the telecommunication companies (telcos) and NTC are in collusion because how in the world can you believe that a TRO lasted this long. It is inconceivable that an injunction is imposed for nine years without the government doing anything about it,” Senator Joker Arroyo said.⁶ The said injunction was filed by the telcos due to the NTC’s creation of Memorandum Circular 13-06-2000 which was supposed to be implemented as early as 2000 but held up due to the imposition of the said injunction. The memorandum circular provides rules, guidance and sanctions against erring telecommunications companies, as well as rules that would require people to show identification whenever they’re buying prepaid SIM cards, mandatory billing statements for consumers, prepaid usage and interconnection.

RATIONALE OF EXPIRATION OF LOAD CREDITS

What is the truth behind the diminishing of load credits? Why there is a need to have the same expired? How these matters affect the consumer? In the Philippines, when we buy a 100 peso prepaid load, we have to consume it within a specified number of days or else the load will expire which means it disappears or forfeit regardless of how much is left in our credit.

A representative of one telecom company said that the reason why the prepaid load expires is “because mobile numbers with no load or activity still occupies space and bandwidth of their network, because other users can still call or text them”. What space and bandwidth does it occupy when it has no activity? The telcos just took the load credits away by force based on their specified time frame. The basic and clearer reason on why telcom providers put an expiry date on mobile phone credits-MONEY. The expiration date will guarantee telecommunication companies prepaid load revenue. Once expired, users will have no choice but to buy new mobile credits.⁷

Kabataan party-list Rep. Raymond “Mong” Palatino said that the rationale behind prepaid expiration dates is that telecoms are dictating how consumers should use their purchased load for them to be able to rake in more profits. He added that service providers impose a time limit on loads so that consumers would have to use the discretion to use up their prepaid minutes when they want to since they paid for this. “It is the consumers’ prerogative to choose to conserve their load and make them last. This is not like food or medicine that would spoil if they are not used at once,” Palatino said.

Commission on Information and Communications Technology (CICT )Chairman Ray Anthony Roxas-Chua stressed that there could be technical issues with how people load their credits in their phones that could cause for the disappearance. However, the problem could also be due to some glitches with the telecommunications infrastructure. Roxas-Chua said the missing load controversy opened new opportunities for the government to review laws that govern the telecommunications companies.⁸

Whatever may be the reason for the disappearance and expiration of the prepaid load credits, one thing is for sure..that the prepaid load was already bought and paid for in cash by the users and such shall never be taken away from them by force.

REMEDIES

In light of the alleged disappearance of pre-paid airtimes, Senate President Juan Ponce Enrile has proposed laws that would strengthen the NTC. Enrile said that one of the existing laws that would be reviewed is Executive Order 546 which created the NTC in 1979.⁹ “This will take some time to investigate. I’ve outlined the problems to be discussed,” Enrile said.

Senator Manuel Roxas II also warned that the Congress could interfere in the operations of the telecommunications providers if they continue to brush off complaints from mobile users.

“What you don’t want is for Congress to start writing up your Operations Manual and imposing limits, including the number of minutes for lunch breaks or your pensions. We are resonating the public’s complaint and if you stonewall these, we will take the necessary steps,” Roxas said.

Senator Ramon Revilla Jr. also joined in the fray saying that he would personally spearhead the review of the telecommunications franchise if the companies are unable to explain disappearance of the credits. “I would like to remind them that since a franchise is merely a privilege granted by the government through Congress, it would be tantamount to a gross violation of their franchise if such claims be proven true,” warned Revilla, who chairs the Senate public service committee.¹⁰

The telecommunications industry is governed under Republic Act 7925, which gives franchises to telecommunications companies. The NTC, which is now under the Commission on Information and Communications Technology (CICT), is the primary agency tasked to implement RA 7925.

Two of the abuses mostly committed by companies in the prepaid calling industry are: (1) diminishing load; (2) setting of expiration dates on prepaied call-text cards. In view hereof, Rep. Narciso D. Santiago authored House Bill No. 6793 An Act Prohibiting Prepaid Telephone Calling Service Providers to Impose Expiration Periods on the Validity of Prepaid Call-Text Cards and The Forfeiture of the Peso Load Thereof or otherwise be known as the “Prepaid Load Protection Act of 2009”. The primary objective of this bill is to protect the Public Consumer from unfair practices committed by Telecommunication Companies. Common complaints from the consumers of prepaid calling cards such as the deduction from card balances, and expiration dates on prepaid call-text cards would be strictly prohibited. This bill will make it unlawful for any prepaid telephone calling service provider to impose expiration dates on prepaid call-text-cards and to forfeit peso value loads of a consumer.

Section 2. Definition—

2. PREPAID TELEPHONE CALL-TEXT-CARDS-
1. IN GENERAL-The terms prepaid telephone call-text cards’ mean any right of use purchased in advance for a sum certain linked to an access number and authorization code that enables a consumer to use a prepaid telephone calling service. Such rights of use may be embodied on a card or other physical telephone calling service. Such rights of use may be embodied on a card or other physical object or may be purchased by an electronic or telephonic means through which the purchaser obtains access numbers and authorization codes that are not physically located on a card or other physical object.
2. EXCLUSION- The terms ‘prepaid telephone call-text cards’ do not include cards or other rights of use that provide access to-
1. a telecommunications service with respect to which the card or other rights of use and the telecommunications service are provided for free or at no additional charge as a promotional item accompanying a product or service purchased by a consumer; or
2. a wireless telecommunications service account with a wireless service provider that the purchaser has a preexisting relationship with or establishes a carrier-customer relationship with via the purchase of a prepaid wireless telecommunications service handset package.

Under Section 3 HB No.6793, It shall be unlawful for any prepaid telephone calling service provider to do any of the following:

1. To impose any expiration period on the validity of the peso value loaded from a prepaid telephone call-text card.
2. To forfeit any peso value loaded from a prepaid telephone call-text card.

Section 4 of the said act penalizes “any director, officer or agent of a corporation who shall authorize, order or perform any of the acts or practices constituting in whole or in part a violation of Section 3, and who has knowledge or notice of noncompliance received by the corporation from the Commission, shall upon conviction, be subject to a fine of not less than One Hundred Thousand pesos but not more than One Million Pesos or imprisonment of not less than six years but not more than twelve years, or both upon the discretion of the court. In case the violation is committed by, or in the interest of a juridical person duly licensed to engage in business in the Philippines, such license to engage in business shall also be immediately revoked.

Although the intention of the said bill is to protect the interest of the consumer, yet the enactment of this is still in the process. In a positive note, the NTC had issued the Memorandum Circular (MC) No. 03-07-2009 dated 03 July 2009 with the subject titled as “Guidelines On Prepaid Load” to Telecommunication Companies such as Smart, Globe, Sun etc. This is in response to the complaint of Senate President Juan Ponce Enrile about the mysterious disapperance of his prepaid load.¹¹

Under this MC, prepaid credits of mobile phones – popularly known as “load” – will now have longer expiration dates. The new rules will take effect fifteen (15) days after the publication of the memorandum circular in newspapers unless the cellular phone companies can again get a restraining order from the court that will prevent the implementation of the order like what happened nine (9) years ago in the case of Memorandum Circular 13-06-2000 which indicated that the expiry period of prepaid phone cards should not be less than two (2) years.¹²

This new rule will benefit all the prepaid users and not the telecom companies. All prepaid cellphone loads will have longer expiration or validity period as shown in the table:

Prepaid Load Purchased	Expiration/Validity Period	Previous Validity Period
P 10 or lower	3 days	1 day
P11 to P50	15 days	5 days
P51 to P150	30 days	10 days
P101 to P150	45 days	30 days
P151 to P250	60 days	30 days
P251 to P300	75 days	30 days
Above P300	120 days	30 days

The new circular provides that the loads’ validity will start upon confirmation receipt of amount purchased. Newly-purchased credits will be added to unused loads, thereby extending the validity of the total loads as in if a subscriber with an unused load of PhP20.00 buys PhP10.00 worth of new credits, the new validity period is 15 days, the NTC explained. The new rule also provides that accessing balance inquiry services through text messaging should be free of charge.

Memorandum Circular No. 03-07-2009 did not totally answer the issues in the expiration of prepaid load credits. This new rule only extended the validity period of the load but did not scarp the expiration of it. Rep. Raymond Palatino said thet although the extension guidelines issued by the NTC the other day provided some measure of relief to consumers, the agency should have compelled telecommunication companies not to put a deadline on cell phone credits.¹³ “Increasing the shelf life of prepaid loads is not enough to address the concerns of millions of subscribers, the rationale behind prepaid expiration dates is that telcos are dictating how consumers should use their load in order for them to rake in more profits. The loads should not have expiration dates in the first place.” Palatino said.

Because of this new time limit imposition on loads, consumers would have to use their loads faster and then buy more of the same. The economics behind leaving load to wilter has morte to do in keeping the cashflow moving-as a telco, it is definitely a way to coerce subscribers to purchase more load, leaving them no quarter to save money. The consumers’ discretion to use their prepaid minutes when they want to should have been considered since they paid for this, in the first place.

Without scrapping the expiration of the prepaid load, we have at least a longer time to consume the load wherein we can however avoid it being expired. With this, Speaker Prospero Nograles Jr. urged telecommunication companies to take pro-consumer steps that would make their services more affordable to their clients.

Addressing to the new rule, Speaker Nograles said that “ This is a welcome news especially now that Filipino consumers are hard pressed to get more value for their hard earned money. That’s why Congress is continuously trying to find ways to make basic necessities—such as telecommunications—more affordable to consumers.”

Doing away with the expiration dates for prepaid cellular phone loads might have been the better option than extending the cards’s shelf life, but since this premise is yet to be upheld then we can nonetheless, save our load from expiration by consuming it within the new time limits.” Let us hope that our lawmakers can see that they are given the runaround. Protect the interest of the consumer.”¹⁴

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Bibliography

1. Rosemarie Francisco-Reuters 3/04/08
2. Leaf Me Alone June 29, 2009
3. Leaf Me Alone June 29, 2009
4. Leaf Me Alone June 29, 2009
5. Phil. Daily Inquirer /Cynthia Balane 6/27/09
6. Phil. Daily Inquirer/ Cynthia Balane 6/27/09
7. InfoChat by Jerry Liao
8. Inquirer.net /Alexander Villafranca
9. Inquirer.net /Amid Case of Missing Load/Alexander Villafranca
10. Inquirer .net/Alexander Villafranca
11. NTC Memorandum by Glitch 07/06/2009
12. Celphone Load Expiry Period Made Longer by Edzee 07/05/09
13. Inquirer .net/Aldexander Villafranca
14. InfoChat by Jerry Liao

]]> http://techlaw.berneguerrero.com/2009/12/09/rationalization-of-the-expiration-of-prepaid-cell-phone-load/feed/ http://techlaw.berneguerrero.com/2009/12/09/an-analysis-of-the-employer%e2%80%99s-right-to-monitor-online-activities-and-cache-content-accessed-by-their-employees-using-company-facilities-and-equipment/ http://techlaw.berneguerrero.com/2009/12/09/an-analysis-of-the-employer%e2%80%99s-right-to-monitor-online-activities-and-cache-content-accessed-by-their-employees-using-company-facilities-and-equipment/#comments Wed, 09 Dec 2009 13:22:20 +0000 Berne http://techlaw.berneguerrero.com/2009/12/09/an-analysis-of-the-employer%e2%80%99s-right-to-monitor-online-activities-and-cache-content-accessed-by-their-employees-using-company-facilities-and-equipment/ by Manuel P. Peña, Jr.

Introduction

The Internet is a transformational medium that has significantly impacted on the different sectors of our society. Through the Internet, information has become more accessible, communication exchanges have been revolutionalized, transcending geographic barriers and diversity. It heralds a sea of change, so phenomenal, the magnitude of which has never been seen before in recent history.

It is not surprising therefore why in the Philippines alone, Internet usage has grown steadily from the year 2000 up to present as shown in the table below. According to the Internet World Stats, Internet growth in the Philippines is not only substantial but also offers a considerable optimism in the years to come.

Year	Users	Population	% of Population
2000	2,000,000	78,181,900	2.6%
2005	7,820,000	84,174,092	9.3%
2008	14,000,000	96,061,683	14.6%
2009	24,000,000	97,976,603	24.5%
http://www.internetworldstats.com/asia/ph.htm

These figures are still well positioned for growth given the increasing government support for IT development together with the rising internet awareness of the populace. Internet market is expected to balloon further with the development of reliable infrastructure especially in the area of broadband services in the country.

Together with the unprecedented growth on Internet usage and accessibility around the globe, business industries, in order to stay competitive, have adopted new business practices. Long established business procedures have been altered; internet-based business models have been developed – embracing new technologies in product research and development, marketing, advertising and consumer servicing, among others.

While it is true that the Internet has been a useful tool in providing and implementing solutions to various business processes whereby increasing productivity, efficiency and profitability, the same is also prone to abuse by its employees. Understandably, employers want to make sure that their investment is being used effectively for doing work and not for the personal use of its employees. The unrestricted use of Internet in the workplace may not only result to wastage of company resources but may also lead to lower work outputs.

Thus, as confirmed in the 2005 survey by the American Management Association, three-fourths of the employers in the U.S.A. monitor their employees’ website in order to prevent inappropriate surfing. It was likewise found out that over 80% of employers disclose their monitoring practices to employees. About 84% of those surveyed have established policies governing Internet use, including e-mail use.

On the other side, these acts do not usually sit well with the employees and is often viewed as highly intrusive form of entering into the private life of persons and thus, violative of the constitutionally-enshrined right to privacy.

In the Philippines, employer’s internet monitoring is virtually unregulated. And with the growing increase in the use of Internet in the workplace, this issue has become even more significant.

Statement of the Problem:

Can the employer monitor online activities and cache content accessed by their employees using company facilities and equipment?

Brief Technological Background

Contrary to common belief, employers have a lot of latitude and available technologies to monitor employees’ Internet logs. In fact there are companies that “offer technology that claims to provide insight into individual employee behavior based on the trail of ‘digital footprints’ created each day in the workplace. This behavioral modeling technology can piece together all of these electronic records to provide behaviour patterns that employers may utilize to evaluate employee performance and conduct. Employers can use computer software that enable them to see what is on the screen or stored in the employees’ computer terminals and hard disks. Employers can monitor Internet usage such as web-surfing and electronic mail.”¹

Often referred to as the cache (pronounced as cash), the Internet Browser Cache or the Temporary Internet Files Folder contains a kind of travel record of the items a person has viewed, heard or downloaded from the Web, including images, sounds, Web pages, even cookies.²

The primary purpose of the Temporary Internet Files folder is to speed up the loading of the web pages. Every time a web page is accessed, the same is sent to the browser’s temporary cache. If the page is accessed again, the browser first checks to see if the web page is already in the Temporary Internet Files cache. If they are, Internet Explorer uses the Internet connection only to check if the web page has changed since the last visit. If it was unchanged, Internet Explorer loads the page from the Temporary Internet Files folder instead of loading the page from the Internet.

1. When you visit a web page for the first time, your browser downloads from the Internet the whole content of the page. The internet connection is relatively slow and therefore there is some delay. After the content is downloaded, Internet Explorer saves it in the Temporary Internet Files folder on your hard disk.

2. On your next visit, Internet Explorer first checks to see if the page is already in the Temporary Internet Files folder. If it is there, Internet Explorer retrieves it from your hard disk, which is much faster than downloading the page from the Internet.

Explanations from: http://www.milincorporated.com/a-temprary-internet-files.html

In addition, Temporary Internet Files, although called “temporary” are never deleted unless the cache is full. As a consequence thereof, anyone who has an access to the computer may see the internet sites a person has visited in the past and thus, compromising one’s privacy.

Discussion

As shown in the above discussions it is clear that there are abundant available technologies that the employer may use to monitor the online activities of its employees in the workplace. However, a more significant issue is whether the employer can legally do so without infringing the right to privacy of its employees. For this purpose, a determination and balancing of the employer’s right in relation to that of the employees is of vital importance.

Basis of the Employer’s Right

The business sector plays an indispensable role in nation building, hence, under Section 3 Article XIII of the 1987 Constitution, private enterprises enjoys the right to reasonable return of investment and the right to expansion and growth.

Further, the Supreme Court in the Case of San Miguel Brewery Sales vs. Ople, G.R. No. 53615 declared:

“Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used. Processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers.”

Hence, enterprises possess inherent autonomy to direct their own affairs in the furtherance of business subject only to such limitations provided by law. Management of business is principally a property right of its owners. Business sectors, are therefore entitled to the rights guaranteed under Section 1, Article III of the 1987 Constitution which provides:

“Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

And under the Civil Code of the Philippines, the following are some rights incident to ownership: (a) the right to use (Jus Utendi); (b) the right to the fruits (Jus-Fruendi); and (c) the right to possess (Jus Possidendi) which includes the right to exclude any person from the enjoyment and use of the property.

The Employer’s Right as Owner of the Facilities and Equipment

With the abovementioned provisions, it appears that an employer, being the owner of the computing facilities and equipment, has the exclusive right over these tools, including the right to prohibit and/or regulate its use. It must be understood that business establishments invest a substantial portion of its resources in order to acquire computing tools and maintain internet connections in the hope of improving business efficiency and meeting other business needs. Expectedly, employers want to ensure that their investments are used solely on work-related tasks rather than the personal use and delight of its employees. With the unrestricted use of internet in the workplace, it is almost certain that a considerable portion of the employees’ working time will be used and wasted in surfing the internet thereby, affecting work outputs. Unsecured websites and uncontrolled downloading from the internet may also expose the company’s entire computer system from a higher risk of virus threat.

It now appears that the employers, in monitoring the online activities of its employees, never really intend to intrude on their employees’ privacy. This action is dictated on the employer’s legitimate desire to protect its property and other business interest.

It must be stressed however that motive alone is not sufficient to affirm the validity of an act especially so when an equally protected right, like the right to privacy, is endangered. It is also worthy to note at this point that while the Bill of Rights protects property rights, the primacy of human rights over property rights is recognized.

Therefore, unless and until it is shown that the employees’ right to privacy are not infringed, the justifications herein discussed, are unavailing.

The Employees Right

The employee’s privacy concern is primarily based on Sections 2 and 3(1), Article III of the 1987 Constitution which provides:

“Section 2. The right of the people to be secure in their persons, houses and papers, and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable xxxx”

“Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.”

The afore-quoted constitutional provisions intends to secure the citizen from “any invasion of his dwelling and to respect the privacies of his life.“³ To ensure the protection of these liberties, Section 3(2), Article III of the 1987 Constitution further provides:

“(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

These provisions are often cited by the employees in order to repel the employer’s alleged intrusion on their right to be “let alone” arguing, that the employer’s attempt to monitor their online activities constitute an unreasonable search. Following this line of thought, employees must therefore be given an absolute unfettered access to the internet in order to diminish the risk of an invasion to privacy.

Unlawful Searches and Seizures a Limitation Only Against the Sovereign State

As declared in the case of People of the Philippines vs. Andre Marti and later confirmed in the case of Waterous Drug Corp. vs. National Labor Relations Commission, “the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Thus, violations against unreasonable search and seizure may only be invoked by an individual unjustly traduced by the exercise of sovereign authority.”

Other Applicable Laws

As it is now clear that that the provisions of Sections 2 and 3, Article III of the 1987 Constitution cannot be invoked against private individuals, we must now consider other laws which may be applicable on the issue at hand.

Article 290 of the Revised Penal Code provides:

“Art. 290 Discovery of secrets through seizure of correspondence. – The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon any private individual who in order to discover the secrets of another, shall seize his papers or letters and reveal the contents thereof.

If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not exceeding 500 pesos.”

Although an electronic document is a functional equivalent of an original document under E-Commerce Act and thus may be considered as falling under the term “paper or letters”, a closer reading of Article 290 would give us the impression that in order to be liable under this provision the seizure of papers or letters must be made “in order to discover the secrets of another.” The intent therefore must, first and foremost, be the discovery of secrets.

It thus appears that Article 290 of the Revised Penal Code may not at all applicable to the employers monitoring of the online activities of their employees since the intent and motivation thereof is not the discovery of secrets but rather the protection of a legitimate business and/or investment interest.

Article 26 of the Civil Code also provides:

“Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

1. Prying into the privacy of another’s residence;
2. Meddling with or disturbing the private life or family relations of another;
3. Intriguing to cause another to be alienated from his friends;
4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”

While monitoring of online activities is not one among those enumerated in the above-quoted provision, the term “similar acts” should nevertheless be taken with extreme caution. As there is no available Philippine jurisprudence yet on this issue, privacy environment in the workplace is crucial in the determination of whether there is a reasonable expectation on the part of the employee insofar as his/her online activities are concern. In line with this, the case of Phil Thygeson vs. US Bancorp, et al. is instructive.

Phil Thygeson vs. US Bancorp Equipment Financing Inc., et al., 2004 U.S. Dist. Lexis 18863

This case was prompted by the termination of Phil Thygeson, an employee of U.S. Bancorp, “for spending inordinate amount of time on the internet during work hours and downloading and storing in his office computer sexually inappropriate material.” Thygeson then sued Bancorp for damages and claimed that the company’s “inspection of his personal folder and reviewing his computer usage, impermissibly invaded his right to privacy.”

In dismissing the claim of Thygeson, the Court held that he had “no reasonable expectation of privacy in either the ‘personal folder’ in which he stored the subject email, or his history of internet usage.” Be it noted though that this finding of the Court was primarily founded on the fact that US Bancorp has an existing company policies which apprised employees of the company’s right to monitor their (employees) internet usage and computer files. US Bancorp’s Handbook states in part:

“Our personal computers including email are intended for Company business only xxx. Do not use the company’s computer resources for personal business xxx and do not access inappropriate Internet sites and do not send emails which may be perceived as offensive, intimidating, or hostile or that are in violation of Company policy xxx”

The company also expressly “reserved the right to monitor any employee’s and computer files xxx.” ⁴

Recommendation

Based on the above discussions, Atty. Jovi Tañada Yam made the following recommendations.

“An employer should have a well-drafted electronic communications monitoring policy stating that it has the right to monitor both e-mail and Internet use of its employees. This policy will not only deter inappropriate e-mail [and internet] usage. It will also put employees on notice of employer monitoring. The policy should be consented to and signed by the individual employees and kept in the employee’s personnel files.”

“Once a policy has been established, the employer should reinforce the policy through training. It should also consider log-on messages that remind employees of the company’s email [and internet usage] policy. Finally, employers should enforce the policy.”⁵

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Endnotes

1. http://www.privacyrights.org/fs/fs7-work.htm
2. http://www.microsoft.com/window/ie/ie6/using/howto/customizing/clearcache.mspx
3. Villanueva vs. Querubin, 48 SCRA 345
4. http://www.sussmanshank.com/showarticles.asp?Show=46
5. http://www.itnmatters.com.ph/columns.php?id=yam_030101

]]> http://techlaw.berneguerrero.com/2009/12/09/an-analysis-of-the-employer%e2%80%99s-right-to-monitor-online-activities-and-cache-content-accessed-by-their-employees-using-company-facilities-and-equipment/feed/ http://techlaw.berneguerrero.com/2009/12/09/a-look-at-the-bir%e2%80%99s-efps/ http://techlaw.berneguerrero.com/2009/12/09/a-look-at-the-bir%e2%80%99s-efps/#comments Wed, 09 Dec 2009 11:10:29 +0000 Berne http://techlaw.berneguerrero.com/2009/12/09/a-look-at-the-bir%e2%80%99s-efps/ by Cherry Liez Rafal

In the year 2001, the Bureau of Internal Revenue (“BIR”) issued Revenue Regulations No. 9-2001 dated August 3, 2001 prescribing the electronic filing of tax returns and payment of taxes or what was called as the Electronic Filing and Payment System (“EFPS”). This was pursuant to Section 244 of the National Internal Revenue Code of 1997, and in relation to Section 27 of Republic Act No. 8792, otherwise known as the Electronic Commerce Act.

The rationale for developing the EFPS is to provide top quality and convenient service by providing a much faster processing and immediate confirmation of the filing of tax returns. It deviates from the conventional method of manually filing the tax returns to the various revenue district offices scattered throughout the country. By using the EFPS, taxpayers may directly encode and submit their taxes on-line with the use of the internet through the BIR website.

It was said that the traditional manual filing is highly susceptible to human errors. After almost a decade of using the EFPS, one could easily ask oneself - is it really helpful? Did it really meet the objectives set by the BIR? Or did it make life a little bit harder, especially for accountants?

I came to know of the EFPS when I was employed sometime in 2003. For half a decade now, I am always using the system almost thrice a month since my work is directly related to the filing and payment of various taxes - withholding taxes, income taxes, documentary stamp taxes, registration fees and value-added taxes. The system is part of my work and anything that could help enhance the system is a welcome respite for me like any accountant in the Philippines.

Indeed, I think the EFPS is a big help in my daily work. This holds true to those large taxpayers as well. Imagine that the company that you are working for, or your own business, has its head office in the province, like in Mindoro and it is remitting huge taxes to the caverns of the government. As a large taxpayer, the company will be classified to be under the jurisdiction of the Large Taxpayers Service. This would either mean such company belongs to either Revenue District Office No. 116, 119, 121 or 122 depending on the type of business and the year the company was transferred to the jurisdiction of the Large Taxpayers Service. These RDO’s handling the Large Taxpayers are all located in Metro Manila, with the exception of RDO 123 that is located in Lahug City, Cebu. Imagine the horror if you would be required to go to Manila thrice a month to file these regular and monthly returns! That alone would make the convenience of the EFPS evident.

Yet, you could also wonder whether or not the BIR would transfer the classification of a company from Non-large to Large Taxpayer if the EFPS was not implemented in the first place? Well, that is another intriguing line to pursue in the future considering that a controversy now lies hanging in the air with regards to the real reason behind the recent resignation of Commissioner Sixto Esquivias. There were rumors that he did not want to let go of his grip on the Large Taxpayers Service because of the collections. Alas, we will not discuss that matter here as it is beside the point.

Convenience for the taxpayers is the foremost consideration in developing the EFPS, as what the BIR would like to remind us. But let us examine the facts closely. I, for one, had encountered a lot of problems with the system, and the top six problems are listed here.

To the best of my knowledge, I seek to expose only the truth. And as what every BIR officer who I had asked every time I am faced with problems in the system – “just bear with us”, I say also, please just bear with me. The list I made is based on my actual knowledge and experience with the system and those of my accountant friends. Supporting print screens of the systems failures and limitations are conveniently saved for future use. Anyone may ask me about it and I can show that indeed what I wrote here is true.

And thus, the list begins with –

1.Mandatory E-Filing and E-payment Format

Under the regulations, it shall be mandatory for EFPS registered taxpayers to file and pay the taxes electronically. Following the “pay-as-you-file” principle, payment of taxes is made within the banking hours of the day the return was electronically filed in case of manual payment, or within the day of e-filing in the case of electronic payment. However, no penalties are imposed for taxpayers who e-filed earlier and paid at a later date but on or before the due date for the applicable tax.

A problem arises in case of the unavailability of the EFPS. During filing deadlines when the system could not accommodate the volume of transactions, the filing via the EFPS becomes a very hard task. It requires a lot of patience to wait for the system to download and upload files. By making the e-filing and e-payment mandatory once a company is registered with the system, it becomes impossible to have a back-up plan.

The main cause of this problem is the undeniable fact that in a corporation, there are only a limited number of authorized signatories for checks issued for the account of the corporation. Due to this, if the system is unavailable, the taxpayer cannot immediately shift to filing manually because it is not allowed. The only time it may file manually is when the BIR issues a Revenue Memorandum Circular announcing the systems unavailability, which, more often is, already done later and on the very last day of filing.

When such notice is indeed received, the corporate signatories are nowhere to be found. Most of them are already out from their various offices to attend to equally important tasks. This leaves the accountant clumsily looking for other alternative ways on how to come up with the checks for the manual payment. Other accountants would often resort to filing at zero tax liability, then; opt to amend later on when the system becomes available. Following this scheme would result to the payment of interest at 20% per annum. Good if the taxes due is only minimal. However, taxes of Large Taxpayers often are over a million pesos a month for a single tax type. This would mean at least Php500 for every day of delay caused by the mandatory arrangement opted by the BIR.

What I suggest is to make the e-filing and e-payment not mandatory. In other words, every taxpayer who is registered in the EFPS may still opt to file their taxes manually. This would give them more leeway, in case of system unavailability. Why would they not have the same privilege of filing manually that other taxpayers have when the only difference between them is the fact that they are enrolled in the EFPS while the others are not?

2.Technical Problems and Limited Availability

Technical problems and limited system availability hound the EFPS since it was implemented in 2001. It is not quite uncommon for the bureau to issue revenue circulars such as Revenue Memorandum Circular Nos. 032-2008 dated April 15, 2008, 33-2008 dated April 17, 2008, 42-2008 dated May 26, 2008, and 43-2008 dated May 27, 2008 to inform the internal revenue officials and taxpayers alike of the system unavailability and the technical problems encountered by the EFPS.

I, for one, had encountered a lot of problems with the system. This includes the turtle-paced retrieval of tax returns and the miscalculation of the fields that are closed and not capable of being edited. There was this one time when I tried to e-file for one corporation, entered correctly all the Taxpayer Identification Number, Username and Passwords. However, when the system downloaded the form where one encodes the figures, I noticed that the name of the taxpayer was not the same taxpayer as I entered. In fact, it was entirely a name of another corporation that I don’t even recognize!

Imagine the horror of realizing that your tax returns may have been mistakenly filed also by other accountants. Some may not even realize that. They thought they had filed and paid already for their company’s tax return, said tax return was instead a tax return of another taxpayer? For a not too careful accountant, this would mean a case of non-filing that could subject their company to 25% surcharge based on the basic tax due, 20% interest per annum, also on the basic tax due and additionally, the ever-present compromise penalties.

Another quite frightening experience is encountered during the submission stage of the tax returns encoded online and directly in the system. During times of system limited availability, when one tries to submit the tax return, one need to wait for almost an hour before the confirmation is issued. More often, the confirmation is not issued at all. And if you try to check by retrieving the e-filed form, you don’t find it there. Then you file again. The end result would be, you have filed more than one return for the same tax type and for the same period! It may even result to multiple e-filings!

During times like these, the BIR would advise you to visit their office at the National Building in Quezon City. But what if your head office is located in Mindoro, would you still have the time to visit Quezon City when it is already the last day of the filing and payment? However, they can easily place the blame on you by saying that one should not wait to e-file until the final day. What they don’t know, you have been trying to file since the first day the taxes became due. You have been calling their lines everyday already and only told to wait until the system cleared.

A real problem indeed!

3.Over-remittance

Under the EFPS, the taxpayer will pay the tax due on the e-filed return using the electronic fund transfer. These are deemed paid once a Confirmation Number is issued to the taxpayer. Under Revenue Memorandum Order No. 10-2006, a Bank Acknowledgement Number will also be issued by the Authorized Agent Bank to the BIR to confirm that such payment was credited to the account of the government. However, the technical problems as discussed above often result in over remittances such as double or triple e-payments.

In CTA Case No. 7073 dated April 4, 2007, Maersk Filipinas was granted a tax refund for the erroneous e-payment of withholding taxes on compensation. The court found that there was indeed an error in the e-payment of taxes. The incident occurred when Maersk filed its Monthly Remittance Return of Income Taxes Withheld on Compensation (BIR Form No. 1601-C) for September 2002 showing a tax due of Php662,346.83.

The amount due was paid electronically by the use of the EFPS. Upon payment through the bank, however, the EFPS did not confirm the payment of the tax. Hence, Maersk repeated the transaction by pressing the “authorize to e-pay” button, but again, no confirmation was given by the system. Hence, the following day, it made another e-payment to avoid the penalties of late payment. It was only that time that the payment was confirmed.

However, when Maersk obtained its Statement of Account from the bank, to its great horror, it discovered that the three attempts of e-payments were all successful! It took them four years to finally get a ruling for the refund with the CTA since its administrative claim was left unheeded. No interest was awarded because the court found it unreasonable to put the blame on the BIR’s shoulders when the EFPS was not functioning well considering that it was relatively new.

Similarly, an over-remittance happened in CTA Case No. 7756 dated August 6, 2009. In the case, Hewlett-Packard Philippines Corporation filed a claim for the erroneous e-payment of its Expanded Withholding Tax (EWT) for March 2006 on April 12, 2006 amounting to P2,283,079.36. The court granted the claim of over-remittance, however, there was no award of interest.

Considering that the EFPS is no longer in its pilot stage when the error occurred, is it only fair to grant interest on the over remittance when the error was due to the inefficiency of the system? Afterall, a late remittance by the taxpayer spells a 25% surcharge. Would it be fair enough if at least an interest of 12% per annum be given in this instance? This would at least cover the cost of money, notwithstanding the fact that the taxpayer also incurred attorney’s fees in filing the claim with the courts due to the inaction by the Commissioner of Internal Revenue on its administrative claim.

4.Late Dissemination

As mentioned above, the BIR issued various revenue memorandum circulars to inform the taxpayers about the problems of the EFPS. These were good issuances because at least the taxpayers were informed. However, if we examine closely, did the dissemination served its purpose?

Let’s take for example RMC Nos. 32-2008 dated April 15, 2008. This was issued to permit the manual filing of the tax returns due to the technical problems encountered in the EFPS environment. It was published in the Philippine Star only in April 16, 2008, but the deadline of the annual income tax return was set on April 15, 2008. Was it not too late for the dissemination? If it had been issued before April 15, 2008, it could have spared most companies the pain and burden of trying to e-file when the system was in fact, in downtime.

The same holds true for RMC No. 042-08 dated May 26, 2008. The deadline of the BIR returns is on May 26, 2008, the same date that the issuance was made.

Then in another instance, the BIR is aware that the technical problems occur during deadline dates when they issued RMC No. 043-08 dated May 27, 2008. But credit is duly given to then Commissioner Lilian Hefti in instructing that the Information Systems Operations Service (ISO) conduct a thorough study on this perennial problem. I, too, am hopeful that the system improves even a little, this year.

5.EFPS Availability and the 24-Hour Hotline

Or should it be properly called EFPS Unavailability? The BIR Contact Center maybe reached at (02) 981- 8888. Upon reaching the line, you will be asked the type of query that you will pose. Then someone will transfer you to the designated person who will try to help you out. One too many times, your question will be left unanswered. They will only ask you to log your query and give you a reference number.

Now, if your inquiry involves any problem encountered while filing the annual income tax return, the deadline of which is within three days, i.e. you started filing on April 12 and the last day will be on April 15, and you find out that your query was only logged-in, what would you do?

You would follow-up of course. Try calling them every now and then to see if an answer is ready. Call them until the final deadline date, and still – no answer. Then they tell you that “We will get back to you Sir/Ma’am soon”. What will you do?

Perhaps try to e-file a zero return then just make an amendment when the answer to your query is given. But what if the answer is given in October? So many months have passed? You would need to make an amendment, but would it not extend the date of the tax’ prescription? The e-taxpayers are really at the losing end here.

6. Issues in New Versions of Tax Returns and Transitory Provisions

We have this scenario when we were e-filing the quarterly Value-Added Tax returns. At that time, the new law – Republic Act No. 9337 otherwise known as the VAT Reform Act that provided to the President of the Philippines to increase the VAT rate from 10% to 12% when certain conditions were satisfied. The effectivity date of the increase was in February 1, 2006 under RMC No. 07-2006 dated January 31, 2006. However, when February 2006 came, still the BIR had not issued a new VAT return form that would replace the old form in the EFPS.

At that time, most taxpayers had complained about the outdated VAT return. The bulk of the problem lies in the fact that since not all gross receipts for the month is taxed at the rate of 12%. Some of it was still taxed at 10% considering that some collections that formed part of the gross receipts came from those billed but uncollected sale of services before the effectivity of the increase in the VAT rate. Hence, some of the collections were subjected to 10%, while others were subjected to 12%. However, the fields in the VAT returns – Line 12B Output Tax Due for the Month are closed. This meant that whatever amount was entered in the Line 12A Sales/Receipts for the Month (Exclusive of VAT), the output VAT was automatically computed to be at 12% without considering the other collections from sale of services that were still subject to the 10% VAT.

So what happened? The BIR was plagued with a lot of questions that time. There was clamor for the BIR to open the fields. But this remained unheeded until the last day of filing. They didn’t issue any RMC for any workaround procedures. What they often advised taxpayers was to wait for the new VAT returns and just amend the VAT return filed. Some taxpayers did just that and declared a higher amount of sales/revenue just to report the correct output VAT.

Then comes the Letter of Authority from the BIR to conduct an audit of all internal revenue taxes including the Value-Added Tax for calendar year 2006. Some of those taxpayers who followed their unofficial work-around procedures were assessed with under-declared sales for income tax purposes. It was indeed too easy for the BIR to see the discrepancy in the declaration of the sales by comparing the sales per VAT return versus the sales for income tax purposes. But such under-declaration was due to the work-around procedures as instructed.

The BIR would tell you that there was also an instruction to make an amendment once the new VAT returns become available. And one might question why these taxpayers didn’t amend their returns when the new VAT forms came?

Well, the RMC providing for the official work-around procedures came only in March 24, 2006 via RMC 21-2006, only a day earlier than the last day of filing of the February monthly return. Thus, who would expect that the EFPS will not be overcrowded by then? By the time you get to realize that you need to amend, other taxes and concerns of equal importance crop up and eat out your time.

Another specific problem with the versions of the tax returns is in the case of the Annual Income Tax Return (BIR Form 1702). This return is due for filing on or before the 15th day of April, or on or before the 15th day of the fourth month following the close of the fiscal year, as the case may be.

In Schedule 5A and 5B, one cannot encode a negative amount in Line 61. Without the amount in Line 61, you cannot enter the Net Operating Loss Carry-Over or NOLCO for the return period that you are currently filing even if such NOLCO is in fact incurred. If you attempt to enter the current year period, a prompt would pop-out saying –

“Year Incurred must not be equal to Return Period (Year) if item 63 is greater than or equal to 0”

This problem was presented to the BIR Contact Center before, and the official answer was for the taxpayer to exclude the values for the current return period in Schedule A then proceed to the next screens.  They said they had randomly checked the site for the EFPS particularly the BIR Form 1702 (Annual Income Tax Return for Corporations and Partnerships) under Section A on Lines 61-63 and they were able to encode amounts successfully.  However, it failed to tackle the issue of the system limitation of accepting negative amounts in Line 61.

Without the indication that there is NOLCO for the current return period, there is a risk that the BIR might disregard the NOLCO for such year. The taxpayer might be exposed to the disallowance of claiming the NOLCO benefit for the succeeding years.

Given the above limitations, would I still recommend the use of the system? Absolutely. Afterall, it was ruled that “the EFPS was developed primarily to provide Philippine taxpayers with top quality and convenient service through a much faster processing and immediate confirmation of filing of tax returns and payment of taxes due thereon (CTA Case No. 7073 dated April 4, 2007 Maersk Filipinas, Inc. vs. CIR). Moreover, it said that the very purpose of the system is to provide top quality and convenient service, at first to Large Taxpayers then to selected Non Large Taxpayers and now even to selected individual taxpayers.

However, I think it is but fitting only that the BIR must constantly improve the system. By listening to the ones who are directly involved in the e-filing of the returns, they might be able to address such issues on time.

]]> http://techlaw.berneguerrero.com/2009/12/09/a-look-at-the-bir%e2%80%99s-efps/feed/ http://techlaw.berneguerrero.com/2009/12/09/sahana-disaster-management-system-as-a-disaster-management-solution-in-the-philippines/ http://techlaw.berneguerrero.com/2009/12/09/sahana-disaster-management-system-as-a-disaster-management-solution-in-the-philippines/#comments Wed, 09 Dec 2009 05:17:36 +0000 Berne http://techlaw.berneguerrero.com/2009/12/09/sahana-disaster-management-system-as-a-disaster-management-solution-in-the-philippines/ by Juverglen C. Ilagan
2005-0217

Introduction

As the world enters into the new millennium, technology become more advanced and continues to develop rapidly. However, this advancement has created an impact on the environment resulting to climate change and increase propensity to natural disasters. In particular, the Asian and Pacific region is becoming more vulnerable to disasters. The Philippines being an archipelago whose area lies beneath the Circum-Pacific belt of fire has always been subjected to constant disasters and calamities. In addition, it is visited by an average of twenty typhoons a year. Recent events such as Typoon Ondoy create havoc even on urban areas not prone to floods before. The possibility experiencing disasters such as floods, typhoons, tornadoes, earthquakes, tsunamis, volcanic eruptions, drought, and flashflood is always present.

One of the key short comings identified during the recent disasters is lack of ICT solutions for disaster rescue and recovery. While number of disaster information systems is available, few would provide a robust system for data management support and functionality for disaster management. The World Summit on Information Society (WSIS) and the World Conference on Disaster Reduction endorsed the role of ICTs in effective disaster reduction. Finding affordable ICTsolutions for disaster reduction is a challenge to many nations in the Asian and Pacific region.Free and open source software (FOSS) is increasingly being used in many spheres of ICTsolutions including disaster management (http://www.sahana.lk/wiki/doku.)

The Sahana Free and Open Source Disaster Management System were conceived during the 2004 Dec Asian Tsunami. It was developed to help manage the scale of the disaster and was deployed by the government’s Center of National Operations (CNO) which included the Center of Humanitarian Agencies (CHA). Based on the success of this initial application and dire need good disaster management solutions particularly to handle large scale disasters SIDA funded a second phase through LSF (Lanka Software Foundation) to generalize the application for global use and to help in any large scale disaster. The project now grown to become a globally recognized project with deployments in many other disasters such as the Asian Quake in Pakistan (2005), Southern Leyte Mudslide Disaster in Phillipines (2006) and the Jogjarkata Earthquake in Indonesia (2006). The phase II funded by SIDA did much to foster the capability of the project and the global community (“Sahana Project”, 2005: http://sahana.sourceforge.net).

Following the Tsunami the system was rebuilt from scratch on the stable Free and Open Source technology stack, AMP ( Apache MySQL, PHP/Perl). The system is available for free for anyone to download and customize based on their requirements and the only latest release of Sahana just before the end of phase II has been downloaded over 8000 times from all over the world. The system is tested to work on GNU/Linux, Windows XP, Mac OS X and FreeBSD operating systems and is also available on a LiveCD or which boots up all from a CD drive without requiring installation. The system is very scalable and It can operate standalone on a laptop without network connection for a single responder up to a server cluster for 1000s of users. The focus on design has been on usability, adaptability and resilience to make it suitable for disaster scenarios (http://en.wikipedia.org/wiki/Sahana)

The primordial goal of Sahana is alleviate human suffering and help save lives through the efficient use of IT during a disaster. Its specific objectives is to bring together a diverse set of actors from Government, Emergency Management, NGOs, INGOs, spontaneous volunteers and victims in responding effectively to disasters. Another is to protect victim data and reduce the opportunity for data abuse. Lastly, Provide a Free and Open Source solution end-to-end available to everyone. The scope of the Sahana project is to be an integrated set of pluggable, web based disaster management applications that provide solutions to large-scale humanitarian problems in the relief phase of disaster (http://www .sahana.lk/wiki/doku .php?id=dev:home )

Sahana is a suite of web based sub-applications that provides solutions to different problems with regard to the information required for managing certain coordination problems during post-disaster. Beyond being a database of information the value it provides is in a well structured and usable interface and data design making the management of information simple. In phase II the Sahana project release 8 modules that address these problems called Missing Person Registry, Organization Registry, Request/Pledge Management System, Camp Registry, Inventory Management, Catalog, Messaging and Volunteer coordination.

Web Based Application Features

Helping Families and Next of Kin Find Each Other

Sahana help connect families and acquaintances quickly in order for them to support each other. For example in Sri Lanka there were hundreds of bulletin boards with pictures of missing people being pinned on them. Here IT can help with an on line bulletin board where persons can search by name, appearance, age group. Even if the victims or families do not have access themselves it is quite easy for any authorized NGO/civil society group to hook up to the central portal and provide that service in the area affected. There is also an on-line bulletin board of missing and found people which also captures the information of the person seeking to find their love ones. Pictures of the missing person and information such as the appearance, identity numbers and last known location can easily be uploaded (http://www.sahana.lk/wiki/doku.php?id=dev:home)

Coordinates All Aid Groups and Helping Them to Operate Effectively As One

The Tsunami in 2005 at Sri Lanka resulted in a massive outpour of support from INGOs, NGOs. If all groups are not coordinated effectively it results in problems such as clogged up supply routes, competition for providing support in some areas while other areas suffer a dearth of support. Thus, it will result to waste or surplusage of pledged and aid. The coordination requires a heavy work load if done manually which an It solution can provide and save time and resources. This way they could even self-distribute themselves evenly across affected regions just by being aware what other relief groups are doing (http://demo.sahana.lk/cvs/index.php?mod=mpr)

Capturing the Location of All Temporary Camps and Shelters

This sub-application of Sahana keeps track of the location and basic data of all the shelters in the region. It also provides a geospatial view to plot the location of the camps in the affected area.. Regardless of the type of needed to capture information of where it is located and how many people are in them to be able to know how to distribute aid effectively.

The Sahana Camps Registry

This sub application of Sahana keeps track of the location of all the camps in the region and some basic data on the facilities they might have and the number of people in them.

Effectively Utilizing the Pledges of Aid

During the 2005 Sri Lanka Tsunami there was an unprecedented response in terms of aid and supplies, however even 8 months after the Tsunami it was found out that a lot of those pledges of aid are not utilized. The main reason for this is that there is a lack of awareness and visibility to the aid available between those that require and those that can provide it. For example one NGO might get a specific request for aid, however probably only one of 100s of NGOs actually have supplies of that aid item. It would be impractical for this NGO to check with all those 100s of potential places to see if that item is available. Instead what we need is a well structured central repository of all aid being pledged and a track of detailed requests for aid. (http://demo.sahana.lk/cvs/index.php?mod=mpr).

Sahana Request Management System

The Sahana request management system is a central online repository where all relief organizations, relief works, government agents and camps can effectively match requests of aid and supplies to pledges of support. It effectively looks like an online aid trading system tracking request to fulfillment. It provides data on the request and pledges such as category, units, details and status. It also has the abilty to track partial fulfillment of the request.(http:// demo.sahana.lk/cvs/index.php? mod=cr&act=default)

Other Modules of the system

Inventory Management and Catalog System

Keeps track of inventories at a high enough granularity to account for the chaotic transfer of goods and aid. Features includes: tracking of inventories and item classification, inbuilt catalog based on WHO standards, but fully customizable, tracking of the transfer of goods from one inventory to another, tracking and warning of the expiry of aid items and co version of units to allow for summations (http://demo.sahana.lk/cvs/index.php?mod=rms&act=default)

Child protection module

Keeps detailed track of children and their needs both in a disaster and conflict situation. This model was build specifically for the NGO Terre des Hommes.

Volunteer management system

Helps track volunteers, their skills and evenly distributes them to affected region for an organization. Features include: tracking of volunteers, their skills and their availability, allocation of volunteers to projects, ability of volunteers to manage their own skill and availability information, ability to search for volunteers based on skill and availability.

Messaging module (SMS / email / CAPs)

The messaging module helps to alert responders and victims of new events in their vicinity as they respond to a disaster: ability to create adhoc groups of SMS numbers and email addresses, ability to send SMS messages through a mobile phone attached to the computer, ability to send messages using the CAPS protocol.

Situation Awareness

This module gives an overview of the situation and allow people to add information on what is happening on the ground. Geographic map of situation with markers capturing incidents and objects and ability to attach a picture and text to a marker (http://en.wikipedia.org/wiki/Sahana).

Free and Open Source Software (FOSS)

There are multiple reasons why Free and Open Source software find a natural fit into humanitarian-ICT applications in general and why there seems to be limited propitiatory alternatives available. They are:

• Very few countries and organizations today can afford to invest a lot of resources in disaster management when there is no disaster present. While this is obviously true of poor, developing nations, it is also true of richer, developed countries. This is because there are always higher priority items that need funding compared to disaster preparations for a disaster that may or may not happen. A FOSS approach provides a low budget, volunteer supplement and global way to build such systems
• There is not much commercial interest in developing solutions in this domain as often during humanitarian disasters software licenses are given freely and it almost seems unethical to restrict software. With FOSS there need not even be any delays in getting permission for a license as anyone has the freedom to download the software and use it.
• Also such systems should be shared, developed and owned globally as the problems they address are all too common for any country dealing with
  a disaster effectively making such software a global public good. The FOSS development and community mechanisms have a proven track record to build such goods.
• The global community of IT volunteers who can contribute their goodwill to such causes by using their skills to develop and customize FOSS software for the disaster situations
• As in conflict situations, during disasters segregation arises between Gov, NGOs and INGOs. The main reason is often the urgent circumstances, the lack of transparency and the lack of coordination capacity. So an open and transparent and globally owned system is more likely to be trusted to mediate between the groups. It will also help organizations self-distribute themselves based on what other organizations are doing in the affected region (http://en.wikipedia.org/wiki/Humanitarian-FOSS).
• Finally no two disasters are alike. There are often localizations and customizations needed for the software before it can get applied effectively to the disasters. Some of these localizations include adding additional meta-data around the entities in the system or translating the system to handle entry in a particular language. With FOSS, the code is available for anyone to quickly pickup and make the needful customizations without restriction. Going the open source way can address the above concerns and using the open source development model, it is possible to develop this software at a much reduced cost compared to pure commercial development models (Chamindra de Silva, Sahana Free Open Sources Disaster Management System: Project Overview, Draf,t 2007)

Deployment Strategy

The Sahana system can be deployed on a variety of models, ranging from operating totally within a single notebook computer (with or without a portable Wireless LAN) to a fully distributed, networked platform.

Large Scale Deployment

The normal deployment diagram briefly illustrates what a large scale deployment involving multiple groups may look like. It is often the case that the disaster coordination hub is away from the affected region as shown below and that network based operation is often possible even though the affected region might have their telecommunications infrastructure destroyed.

Available Sahana Installation Packages

Each release of Sahana is packaged in 5 main forms to make it easy for people to download and install it. They are given below:

1. TAR.GZ Package: This is the source package of Sahana and as PHP is a scripting language (no compilation needed) it is a valid deployable package of Sahana. This is the best package to use for a Windows XP, OS X or FreeBSD installation of Sahana
2. DEB Package: Debian is the largest community based linux distribution and additionally 100+ other distributions are based on debian
3. RPM Package: For deployment on a commercial Redhat platform mainly, especially together with IBM servers. Additionally there our other distributions (e.g. CentrOS) that uses RPM compatible to Redhat.
4. LiveCD Package: This is a Sahana CD package that boots the entire LAMP stack with Sahana pre-configured from the CD drive without touching the harddisk. This is ideal for Sahana demos or it is a portable installation of Sahana to be taken to the field with a USB drive.
5. LiveUSB Package: This package is like a liveCD except it boot the LAMP base with Sahana pre-configured from a USB flashdisk. Lanka Software Foundation (http://www.linux.lk/ ~chamindra/docs/ Sahana-Brochure.pdf)

Access can be provided in the affected region with the support of groups such as Ericsson who provide wireless LAN based satellite based connectivity to networks (Sahana Free and Open Source Disaster and Management Project, Lanka Software Foundation 2005).

Lightweight Deployment

If such infrastructure does not exist, Sahana being a “lightweight” solution can efficiently scale down to a standalone laptop and a secured portable wireless access point if short-range network collaboration is required. Such a requirement is often the case in a disaster coordination hub when there is no Internet or power during the initial moments post-disaster. The Sahana system has been tested to work with the above equipment at appox 130W, which can be easily support by a solar panel, should power not be available. Additionally none of the applications depend on being connected to the Internet. Sahana also has the ability to synchronize data between multiple instances of Sahana. What this allows for is for responders or district offices to capture data on victims in the field and seamlessly exchange them with the other field offices, headquarters or responders by exchanging data in USB flash drives or CDs (http://en.wikipedia.org/wiki/Sahana).

Constraints on System

The system is quite flexible to handle different humanitarian disasters but it is Important to specify the boundaries of this system and allow it to focus on its scope and purpose. It must be used in relief, recovery and rehabilitation effort and not to be extensible beyond this. The system is not supposed to be extended to a government data center or similar registry of citizens. The technologies used on this project will have to conform to a FOSS license to ensure it is freely available to anyone.

To ensure ROI and utilization of this system, the Sahana project will have to be presented and showcased to many different organizations to bring up awareness and visibility of the availability of such a project to handle disaster response efforts. Typical place where we to present this system are at disaster management conferences, FOSS conferences, NGOs (Red cross, CARE, Transparency international, etc) relevant UN groups and governments. NGOs and similar groups in particular can serve to provide a lot of domain oriented requirements. It will also have to be hosted on its own website (Sahana Project”, 2005, http://sahana.sourceforge.net/)

Recognition of Sahana and Humanitarian-FOSS

Sahana has gained a tremendous amount of recognition in it’s short tenure both for the project and for the concepts it promotes, which is the application of FOSS for humanitarian ICT problems. The above alignment to FOSS was generalized and named “humanitarian-FOSS”, which is effectively the application of free and open source software to alleviate human suffering and was coined by the Sahana project. This concept finds a natural home not just in disaster management, but in a superset that extends to humanitarian ICT or any other ICT requirement which concerns the improvement of human welfare. We found that the currently taxonomies of projects on well known open source repositories like source forge or fresh meat does not presently allow us to bucket such projects easily and often get dropped into a miscellaneous classification bucket. However we believe there is a lot of potential for growth in this area and if positioned and promoted well, there should be many volunteers flocking to build and contribute to such projects globally, especially as the open source community operates with a strong set of ethics for the benefit of the community at large.

The concept is recognized by the Free Software Foundation (FSF), known as one of the two leading organizations responsible for the FOSS movement. The founder of FSF, Richard Stallman’s aspiration has been “help thy neighbor with software”, where projects like Sahana comes as a specialization of this where it is “help alleviate human suffering with software”. In recognition of this the FSF has created a new award for social benefit that was inspired by the Sahana project. (http://newsvac.newsforge.com/newsvac/05/11/05/0553230.html, http://www.fsf.org/news/social-benefit-award.html, http:// www. tectonic.co.za /view.php?id686)

Impact on Disasters in the Philippines

PD 1566 The National Calamity Preparedness Plan (Legal Bases of the Philippine Disaster and Management System, March, 2008).

“This Plan embraces all conceivable contingencies, making use of all available resources, both government and private. It also develops self-reliance by promoting and encouraging the spirit of self-help and mutual assistance among the local officials and their constituents. Each political and administrative subdivision of the country shall utilize their own resources before asking for assistance from neighboring entities or higher authority. While emergency preparedness is a joint responsibility of the national and local governments, its effectiveness will depend largely on the skills and resources and the involvement of private organizations and the general public in the area of disasters. Regular exercises and drills will be conducted at all levels to enhance the people’s reaction capability and ensure precision and spontaneity in responding to emergencies. The Regional offices of the departments shall provide similar support/assistance to the Regional Disaster Coordinating Council.”

This relationship shall be maintained down the line to the Barangay Disaster Coordinating Councils and their respective Disaster Operations Centers .Disaster Councils at the Regional, Provincial, Municipal/City and Barangay levels shall be established to complement the National Disaster Coordinating Council. Each Council shall have staff elements, stationed in their respective operations centers, composed of the following:

• Damage Assessment and Needs Analysis Unit;
• Emergency Management Information Service Unit;
• Vulnerability Risk Reduction Management Unit;
• Plans and Operations Unit; and a
• Resource Unit;

Each council shall provide operating units for:

• Communication Transportation Service and Early Warning Service;
• Health Service;
• Auxiliary Fire and Police Service;
• Relief and Rehabilitation Service;
• Public Information Service; and
• Rescue, Evacuation and Engineering Service

Among the salient provisions of PD 1566 are the following:

1. State policy on self- reliance among local officials and their constituents in responding to disasters or emergencies;
2. Organization of disaster coordinating councils from the national down to the municipal level;
3. Statement of duties and responsibilities of the National Disaster Coordinating Council (NDCC), RDCC and LDCCs;
4. Preparation of the National Calamities and Disaster Preparedness Plan (NCDPP) by OCD and implementing plans by NDCC member-agencies;
5. Conduct of periodic drills and exercises; and
6. Authority for government units to program their funds for disaster preparedness activities in addition to the 2% calamity fund as provided for in PD 474 (amended by RA 8185)

The software has subsequently been used by both the Government and civil society in other disasters around the world. These include the Philippines Mudslide Disaster – February 2006. On February 17, 2006, a devastating mudslide killed over 1,800 Filipinos in Guinsaugon in the southern part of Leyte Island in the Philippines. IBM immediately contacted the Sahana core team and the Lanka Software Foundation to deploy Sahana. IBM provided an initial list of required customizations for the Philippines deployment. The customizations were analysed and divided into two groups. The first groups of simple modifications were those that could be directly completed by Sahana clients using the administrative interface. One paragraph about what this interface can support. The second group of customizations required significant modification to the core modules of Sahana. Organization registry, Camps registry, Missing persons and Request management system were heavily customized. To streamline the customization process, a demonstration server for the ongoing modifications was setup at www.sahana.lk and the IBM team continually reviewed the customizations. The major modifications were completed within 7 days. Over the course of the disaster, approximately 50 organizations and about 1000 missing people were managed and five camps were also established and supported (http://www.stii.dost.gov.ph/sntpost/NewPOST/JanMar2006/IT_helps_Guinsaugon_rise_again.html)

The following is a quote from Avelino J. Cruz, Jr., Secretary of National Defense, Philippines, to exemplify the impact Sahana had as a disaster
management system:

“The NDCC and OCD value SAHANA’s contribution to the relief and rehabilitation phases of the Southern Leyte landslides and recognize the tremendous boost to our preparedness for future disasters. While SAHANA cannot solve all the problems in a disaster, it is an excellent tool
to create registries that can provide timely and reliable information on missing persons, donated goods and services, camp locations, and the like. It is technology that can help many people in a disaster. In fact, there is no greater innovation that matters more than that which saves lives.” (http://www.emdat.net/documents/bangkok06/PhilippinesManagingDisasterInfo.pdf#search=%22sahana%20philippines%22http://202.90.128.18/index.php?mod=or&act=view_org)

Disaster losses can be reduced through observations relating to hazards such as: wildland fires; volcanic eruptions; earthquakes; tsunamis; subsidence; landslides; avalanches; ice; floods; extreme weather; and pollution events. Systems implementation will bring a more timely dissemination of information through better coordinated systems for monitoring, predicting, risk assessment, early warning, mitigating, and responding to hazards at local, national, regional, and global levels.

After experiencing the destruction of the Leyte mudslide, the havoc created by typhoons such as Milenyo, Ondoy and Feria, The PDCC and LGU’s must consider the use of free and open source software as an important part of their strategic thrust in information technology, requiring that its use be considered when it provides a feasible alternative to propriety software. Developing countries like Philippines, with the resources constraints they face, view free and open source software as a means to reduce the cost of IT investmentsand increase its productivity. The imperatives to adopt free and open source software in particularly in public the sector are motivated by the desire for independence, security and autonomy and as a means to address intellectual property rights enforcement. Open source plays a key role among development agencies including NGOs and INGO’s for effective disaster rescue and recovery. Sahana is web-based free and open source software especially designed for disaster management.

Introduction of the Sahana system made relief efforts more efficient. It improved rapid information sharing and coordination to avoid redundancy, wastage and to provide aid to the right place at the right time. Besides, it provided situational awareness on tracing people and aid distribution which acted as a decision support for policy makers. This resulted in less over laps and more efficient distribution of relief among the victims. Due to the success of Sahana system in alleviating human suffering during Tsunami, it was adopted by Pakistan and Indonesia to manage their respective disasters.

Conclusion and Recommendation

Sahana has been used to manage past disasters in Philippines. This proves that Sahana Disaster and Management System is applicable and useful in times of natural calamities in the country and must be adopted as part of their national disaster management strategy.

Sahana can be of immense help to Asian and Pacific member countries, where 42 percent of the world disasters have occurred during the past three decades (http://www.earthquakepakistan.com images /IBM_CRT_Pakistan_Mission_Report.pdf )

The Philippines should invest in disaster management customized and pre-deployed Sahana in preparation for future disasters. It must be customized to cater or respond to typhoons and flood which is the common calamity our country expected to be encountered endlessly.

In this context, Sahana, provides the best option as it is already being developed and customized for disaster management. It offers low cost, volunteer supplemented, global system for disaster management. There is little commercial interest in developing open source solutions during humanitarian disasters when proprietary software is freely available. But Sahana could be downloaded free and use without any licensing fees.

Sahana is a global public good and available for anyone who desires to help in any humanitarian cause. Customization would include localization into the indigenous languages and having voice portals for counties with low literacy rates. The interfaces will include metric oriented reports customized to the decision makers of the various organizations and also a roll up of the public data should be provided to assess the overall impact and relief estimates of the disaster. It should also provide transparency to the aid donors to give a degree of comfort on effectiveness of their sponsored organization. At the same time the information should be secured and should reduce the possibility of data privacy violation or abuse for adverse reasons (e.g. identify theft, property theft). The Philippines have to be receptive and sensitive to these challenges must utilize least cost IT solutions to manage natural disasters. Hence, supporting the development of Sahana disaster management system could be a core objective in the regional agenda to fight against natural disasters.

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References:

• Chamindra de Silva, Sahana Free Open Sources Disaster Management System: Project Overview, Draft 2007
• Legal Bases of the Philippine Disaster and Management System, March, 2008
• PD 474 (amended by RA 8185)
• http://chamindra.googlepages.com/Sahana-Project-Overview-0.9.pdf, 2006
• http://www.sahana.lk/wiki/doku
• Sahana Project, 2005: http://sahana.sourceforge.net)
• http://en.wikipedia.org/wiki/Sahana
• (http://en.wikipedia.org/wiki/Humanitarian-FOSS
• http://www .sahana.lk/wiki/doku .php?id=dev:home
• http://www.sahana.lk/wiki/doku.php?id=dev:home
• http://demo.sahana.lk/cvs/index.php?mod=mpr
• http:// demo.sahana.lk/cvs/index.php? mod=cr&act=default
• http://demo.sahana.lk/cvs/index.php?mod=rms&act=default
• http://en.wikipedia.org/wiki/Sahana
• http://www.linux.lk/ ~chamindra/docs/ Sahana-Brochure.pdf
• http://sahana.sourceforge.net/
• http://newsvac.newsforge.com/newsvac/05/11/05/0553230.html
• (http://www.earthquakepakistan.com images /IBM_CRT_Pakistan_Mission_Report.pdf )
• http://www.fsf.org/news/social-benefit-award.html, http:// www. tectonic.co.za /view.php?id686
• http://www.stii.dost.gov.ph/sntpost/NewPOST/JanMar2006/IThelps_Guinsaugon_rise_again.html
• http://www.emdat.net/documents/bangkok06/PhilippinesManagingDisaster
• Info.pdf#search=%22sahana%20philippines%22http://202.90.128.18/index.php?mod=or&act=view_org)
• www.sahana.lk
]]> http://techlaw.berneguerrero.com/2009/12/09/sahana-disaster-management-system-as-a-disaster-management-solution-in-the-philippines/feed/ http://techlaw.berneguerrero.com/2009/12/08/child-pornography-issues-concerns-and-legislative-measures/ http://techlaw.berneguerrero.com/2009/12/08/child-pornography-issues-concerns-and-legislative-measures/#comments Tue, 08 Dec 2009 11:08:08 +0000 Berne http://techlaw.berneguerrero.com/2009/12/08/child-pornography-issues-concerns-and-legislative-measures/ by Rachel L. Yuayan

INTRODUCTION

Cybersex is a multi-billion dollar industry. It preys on the young and the economically vulnerable in society. It enriches the recruiters and operators of the industry while it robs the child victims of their innocence and youth.

In 2008, an American national, with his Filipino wife, were arrested in La Union for operating a cybersex den in the province. One of the four (4) minors rescued from the operation revealed that they were paid the measly sum of fifty (50) pesos for working eight hours a day. Some admitted that they had been made to pose nude and did sexual acts in front of the computer for their foreign customers. Unfortunately, the court dismissed the case.

The existence of internet pornographic site in La Union is only an example of the kind of exploitative business that is proliferating all over the country. The operators of these sites are not only criminals, they are predators. It is one of the worst forms of child labor as it irreversibly harms the child both physically and psychologically. It is widespread, organized, systematic, syndicated and transnational in nature. It is appalling to the core. It does not only require domestic measures but also international arrangements to combat its spread.

Prior to the recently enacted Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009, law enforcement officers and prosecutors were in a quandary as to how to successfully prosecute cases against suspected offenders in the light of relevant Philippine laws and international agreements concerning children.

The passage of the aforementioned law was like a journey to a road less travelled. While several of our legislators, led by the Chairperson of the Senate Committee on Youth, Women and Family Relations, were consistent in their commitment to protect the rights of children, there were also a number of powerful oppositors. But with the tireless support and unwavering persistence of concerned citizens, interest groups and institutions such as the United Nations Children’s Fund (UNICEF), People’s Recovery, Empowerment and Development Assistance (PREDA) Foundation, Inc., Catholic Bishops Conference of the Philippines (CBCP), and the Anti-Child and Pornography Alliance (ACPA), among others, as well as the full cooperation of the Philippine National Police (PNP), Department of Justice (DOJ), Commission on Human Rights (CHR), and the Department of Social Welfare and Development (DSWD), this advocacy was finally realized. Though long overdue, it is indeed a victory of, and for, our children.

Under R.A. 9775, the State guarantees to protect the rights of every Child from all forms of neglect, cruelty and other conditions prejudicial to their development, and all forms of exploitation and abuse, especially the use of children in pornographic performances and materials, and the inducement or coercion of children to engage in pornography through whatever means. This is also in compliance with the States’ obligation to comply with the country’s two international treaties concerning the rights of children, namely, the Convention on the Rights of the Child and the Second Optional Protocol to the Convention on the Rights of the Child.

Hence, this paper delves not only on the issues and concerns of child pornography but also the legislative measures, particularly R.A. 9775, which will serve as our ammunition in bringing this real life horror to an end.

DISCUSSION>

I.Gaps in Laws Relating to Child Internet Pornography Addressed by Republic Act 9775, otherwise known as the Anti-Child Pornography Act of 2009.

Prior to the passage of R.A. 9775, various child advocates and government authorities have emphasized the need to review and reassess Philippine laws dealing with child pornography. They posited that said laws, particularly Republic Act 7610 “An Act Providing for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, And for Other Purpose” and Republic Act 9208 “An Act to Institute Policies to Eliminate Trafficking in Persons Especially Women and Children, Establishing the Necessary Institutional Mechanisms for the Protection and Support of Trafficked Persons, Providing Penalties for its Violations, And For Other Purposes” , fail to address the appalling activities of pedophiles, the prosecution of persons possessing child pornographic materials, as well as the importation and exportation of pornographic paraphernalia.

Moreover, the absence of a specific law criminalizing possession of child pornographic materials and its trade via the internet and other media has caused a lot of cases on child pornography to be dismissed. Citing Vietnam and China as countries imposing capital punishment to perpetrators, there is an imperative need for specific, responsive and preventive legislation on child pornography that addresses and curbs the problem, but at the same time ensures that it does not infringe on the rights to privacy of individuals.

The Philippines ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography on May 8, 2002. As a consequence of treaty incorporation and by virtue of the principle of pacta sunt servanda, the Philippines was obligated to enact an enabling legislation. The Optional Protocol recognizes that there is a growing availability of child pornography on the Internet and other evolving technologies. As stressed in the Vienna International Conference on Combating Child Pornography on the Internet (1999), there is a need for the worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography. Furthermore, the importance of closer cooperation and partnership between governments and the Internet industry to combat the phenomenon cannot be discounted.

The same Protocol also states that the elimination of child pornography will be facilitated by adopting a holistic approach and addressing the contributing factors, including underdevelopment, poverty, economic disparities, inequitable socio-economic structure, dysfunctional families, lack of education, urban-rural migration, gender discrimination, irresponsible adult sexual behavior, harmful traditional practices, armed conflicts and trafficking in children. Thus, such factors should be factored in the legislative measure.

Another stumbling block in the prosecution of child pornography is the failure to penalize the customer. Authorities pointed out that the customer is almost always beyond the reach of the law since he or she is outside Philippine jurisdiction, i.e. most of the customers are from other countries. Likewise, the crime of internet pornography, being transnational in nature and a form of trafficking in persons, should be subject to universal jurisdiction.

Moreover, since the customers are outside Philippine jurisdiction, and to ensure effective prosecution, the Philippines should utilize existing extradition treaties to hold these perpetrators accountable. Should the State Party to the Protocol have no existing extradition treaty with another State which ratified the same, the Protocol can, by express provision thereof, serve as legal basis for extradition.

Hence, the Senate Committee on Youth, Women and Family Relations, endeavored to come up with sanctions against internet service providers. With the advent of globalization and the computer age, it is said that child abuse does not end at the time that a photograph or video is taken. Every time that such photograph or video is viewed by people, the exploitation is magnified several times over. In this regard, the Law on Child Pornography of Ireland, which contained an expanded definition of child pornography, was taken into account.

The Law on Child Pornography of Ireland defines child pornography as:

“Any visual representation that

1. shows a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in the explicit sexual activity; or
2. those or whose dominant characteristics is depiction for sexual purpose of the genital or anal region of the child; and
3. any audio representation of a person who is a child or is represented as being a child who is engaged in or is represented as being engaged in the explicit sexual activity or any visual or audio representation that advocates, encourages, or counsels on the lawful sexual activity with children irrespective of how or through what medium the representation has been produced. And without prejudice to the foregoing, includes a representation produced by or from computer graphics or by any other electronic or mechanical means.”

The above provision gives emphasis to virtual representation and expands the definition by including computer-related child pornography. Moreover, it explicitly defines the parameters of what could be considered as child pornographic materials.

Under R.A. 9775, the definition of child pornography was more comprehensive yet specific. Sec. 3 (b) states the following:

Child pornography refers to any visual, written material or audio representation, whether or not it is made by electronic or mechanical means, or an actual presentation of a Child:

1. Engaged in real or simulated explicit sexual activity; or
2. Showing his or her sexual parts or anal region, the dominant characteristic of which depicts a sexual purpose.
3. Visual, written material or audio representation shall include, but not be limited to, writings and pictures, books, magazines, billboards, tabloids, comics, posters, cards, calendars, decals, stickers, paintings, photographs, television shows, motion pictures, computer graphics or any electronic or other means, including the use of information technology such as mobile phones and the internet.

Actual presentation shall include, among others, the live performance or showing of a Child engaged in real or simulated explicit sexual activity, or the depiction, for a sexual purpose, of the sexual parts or anal region of the Child.

Moreover, Child, as specified in Sec. 3 (a), refers to the following:

1. A person under eighteen (18) years of age;
2. A person, regardless of age, who is unable to fully take care of oneself because of mental disability or condition;
3. When applicable, a person eighteen (18) years of age or over who is presented, depicted or believed to be a person under eighteen (18) years of age; and
4. When applicable, computer generated, digitally created or manually crafted images or graphics of a person who is represented or is made to appear to be under eighteen (18) years of age.

Thus, with the aforesaid provisions, the judicial system and law enforcers alike shall not have anymore difficulty in prosecuting the offenders because the law is now clear.

II. Lapses in Law Enforcement

There is growing international acceptance of the need for more effective action and strengthened law enforcement in this jurisdiction. This would require the ability and the capability to monitor the situations closely as possible. The difficulty surrounding the circumstances of the child victim poses the inability to report the cases personally endured by him or her given the cultural boundaries that our country represents. This, therefore, keeps child pornography out of sight for a long time now.

Article 34 of the Convention of the Rights of the Child (CRC) mandates that the child should be protected from all forms of sexual exploitation and abuse. The Philippines, as a state party to the CRC, is mandated to take appropriate measures to prevent the inducement and coercion of a child to engage in any unlawful sexual activity and the exploitation of its children in pornographic performances. The Philippines, by virtue of the CRC, must ensure that its State obligation to respect, protect, promote and fulfill the rights of the child is complied with. No less than the 2nd Optional Protocol to the CRC requires this.
Parenthetically, the Philippine National Police thru the Women and Child Concern Division (WCCD) and the Criminal Investigation and Division Group (CIDG) have pushed for the implementation of the national investigation plan involving child pornography in every region of the country.

Consequently, with R.A. 9775, the PNP has now sharper teeth in going after the offenders as it mandates the PNP Child and Women’s Desk to be the lead enforcement agency to enforce and implement the provisions of this law.

III. Weaknesses of the Philippine Judicial System Resolved By R.A. 9775

In the case of the Philippines, prior to the passage of R.A. 9775, there was lack of an integrated and well-informed set of laws on child internet pornography amidst the fast-paced advancement in technology. It is difficult to pursue cases in Philippine courts, particularly those pertaining to cyber sex crimes, such as on-line pornography, in the absence of any law defining it. The protracted process of prosecution given the absence of available laws and the difficulty in gathering evidence that may be considered admissible in court, are underlying challenges brought about by the complexities of the times.

With the new law, the judicial system in this jurisdiction is strengthened as it provides for the prosecution of child pornography cases whereby any person, who has knowledge of the commission of any of the offenses under this Act, including but not limited to the Child, parents, siblings, legal guardian, the DSWD, or police officers, may file a complaint for its prosecution in the Juvenile and Domestic Relations Court. In view of this, the DOJ shall appoint or designate Special Prosecutors.

In addition of the above, Supreme Court Circular A.M. No. 004-07-SC dated 21 November 2000 or the Rule on Examination of a Child Witness, and its amendments or revisions thereto, shall be applied in the prosecution of the same.

IV. Statistics on Child Pornography appear Deceptive

The Department of Social Welfare and Development (DSWD) described the statistical data gathered by their office as extremely low despite the numerous raids conducted by law enforcement authorities. It is widely believed that these figures do not accurately reflect the real number of children victimized by internet pornography.

Unfortunately, our culture does not associate pre-pubescent children as those that can be had as sexual objects. It is only when their parents see them being subjected to actual sexual abuse by the so-called pedophiles that they consider the acts as pornographic. While this issue has posed a problem in the gathering of data needed for studies relating to the matter, it did not prevent the legislators to finally enact R.A. 9775.

V. Effects of Pornography to the Child

The psychological effect that promotes the sense of brokenness among children demeans their self-worth. Child pornographic materials promote the “commodification” of children in that they are treated as commodities and marketed like sexual objects. This particular practice permits the cycle of abuse to go on among victims and perpetrators of child pornography. In this way, the distorted notion of what is acceptable in society in terms of sexual acts, behavior, values and partnerships is likewise severely affected. Hence, the law provides for the care, custody, and treatment of the Child victim, thru the DSWD, by giving support for their recovery and reintegration in the community.

In relation to this, the right to privacy of the Child and his or her family is protected at all times in whatever stage of the investigation or judicial proceedings. The name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter’s consent, shall not be published or caused to be published in whatever form in order not to aggravate the brutality of the situation.

VI. The Internet Service Providers’ (ISPs) Refusal to Cooperate

Rather expectedly, owners or representatives of the ISPs never attended the Senate committee hearings and Technical Work Group (TWG) meetings. Under Sec. 3 (c), Internet Service Provider (ISP) is defined as follows:

Internet Service Provider refers to a company which provides internet access and related services. An Internet Service Provider usually has multiple access methods that include, but are not limited to:

1. dial-up;
2. wireless and local area network (WiFi/LAN);
3. Digital Subscriber Line (DSL);
4. broadband; and
5. cable modem.

As provided by the rules, numerous invitations were issued to them given the magnitude of concerns and the undeniable role that ISPs play in curbing child internet pornography, but to no avail. Indeed, this lack of support initially posed as an obstacle in the fight against pornography by reason of the privacy protection policies invoked and enforced by these companies. But their continued absence in the proceedings after sufficient notice is recognized by law as a form of waiver of their day in court.

VII. Child Pornography interlinked with other Forms of Sexual Exploitation

During the public hearings and TWG meetings, there emerged a consensus that the subject of child pornography should not be separated from other forms of commercial and sexual exploitation of children. It is interrelated with child prostitution and trafficking. It is therefore important to discuss pornography in the context of other forms of sexual exploitation and abuse to help people understand that pornography, albeit an issue worthy of separate attention, is still anchored upon other forms of sexual abuse and exploitation. Also, legislative measures on child pornography must be consistent with other laws in order to avoid adverse implications on policies affecting child trafficking and child prostitution. Consequently, there had been a holistic, comprehensive and harmonious approach in the review of all the laws involving children.

CONCLUSION

Being a new law, R.A. 9775 needs the support not only of the Philippine judicial system, the law enforcement agencies such as the police and the military, and the local government units (LGUs), but also the community being at the grassroot of this dynamics. The success of this law depends on the proactive interplay and commitment of these stakeholders, especially the family.

The family, as the basic institution of our society, plays a most significant role in combating child pornography. The Child is helpless without the positive intervention of his parents, brothers, sisters and other relatives, whom he looks up to for guidance and education. Hence, it is also our obligation, not only of the State, to mobilize a crusade on the importance of public action to monitor and detect the practice of child pornography in the Philippines.

]]> http://techlaw.berneguerrero.com/2009/12/08/child-pornography-issues-concerns-and-legislative-measures/feed/ http://techlaw.berneguerrero.com/2009/12/07/the-dangers-of-non-regulation-of-forensic-software-applications/ http://techlaw.berneguerrero.com/2009/12/07/the-dangers-of-non-regulation-of-forensic-software-applications/#comments Mon, 07 Dec 2009 22:58:42 +0000 Berne http://techlaw.berneguerrero.com/2009/12/07/the-dangers-of-non-regulation-of-forensic-software-applications/ by Joel A. Santos
2006-0123

Introduction

IT Forensics tools are used as aids by law enforcement authorities to monitor or gather evidence against criminals and wrongdoers using computers and other computing devices to victimize specific individuals or the general public. As defined online,¹ it is a branch of forensic science pertaining to legal evidence found in computers and digital storage media.

Computer forensics tools are known to make cybercriminals stop dead on their tracks. As illustrated,² a financial analyst is suspected or confirmed to have committed a white collar crime like embezzlement – the company decides to terminate the person.  The employee is dismissed at 9 am, cleans up his desk with a security guard standing by and is escorted to the human resources (HR) department at 9:05 am.  His computer and Blackberry are sent to the employer’s IT department, ideally accompanied by the security guard to safeguard the chain of custody.  Then, the company’s IT people boot up the employee’s computer and begin to fish around in his e-mail and documents, seeking incriminating evidence.  Perhaps they then copy all the relevant items to an external drive or CD.  After all this has taken place, they send the forensics examiner the equipment or set it aside until that examiner arrives.

The contribution of IT forensics tools are lauded by many law enforcement agencies throughout the world. In the United States, law enforcement experts have cited the contribution of Microsoft in developing several IT devices to help neutralize cybercrime. Relevantly, it may be known that more than 2,000 officers in 15 nations, including Poland, the Philippines, Germany, New Zealand and the United States, are using the device, which Microsoft provides for free.³

However, it is known throughout many online communities that forensic software is widely-available all throughout cyberspace. Because of the multifarious benefits and uses that these programs bring to the table, computer-savvy individuals have managed to hack these programs out of secured servers. Because of the widespread availability of devices to supplement computers, highly computer-literate people have even developed analogous or hybrid programs of these softwares that was supposed to be only restricted to government or law enforcement purposes. As a result of the apparently loose safeguard of these aids, it is opined throughout many IT forensic circles that the integrity of evidence gathered by these computer forensic tools as regards admissibility in court may be compromised.

This paper aims to highlight the lack of regulation and safeguards that characterize the accessibility of theses software. As admissibility of evidence may be affected by this situation, a more serious problem would appear in the horizon – the adaptability of cybercrooks to IT-related evidence and increased brazenness in their nefarious activities.

I. Computer forensics tools

Computer forensics tools are readily available commercially. Digital evidence can be collected from many sources. Obvious sources include computers, cell phones, digital cameras, hard drives, CD-ROM, USB memory devices, and so on. Non-obvious sources include settings of digital thermometers, black boxes inside automobiles, RFID tags, and web pages (which must be preserved as they are subject to change).⁴

However, it is known that tools are not by themselves enough, as processes and safeguards as regards the evidence on hand need to be done. Brian Carrier⁵ of Purdue highlights the process in bringing the evidence to court:

1. Acquisition
2. Analysis
3. Presentation

The Acquisition Phase saves the state of a digital system so that it can be later analyzed. This is analogous to taking photographs, fingerprints, blood samples, or tire patterns from a crime scene. As in the physical world, it is unknown which data will be used as digital evidence so the goal of this phase is to save all digital values.

The Analysis Phase takes the acquired data and examines it to identify pieces of evidence. There are three major categories of evidence that are being looked into:

1. Inculpatory Evidence: That which supports a given theory
2. Exculpatory Evidence: That which contradicts a given theory
3. Evidence of tampering: That which can not be related to any theory, but shows that the system was tampered with to avoid identification. This phase includes examining file and directory contents and recovering deleted content. The scientific method is used in this phase to draw conclusions based on the evidence.

Prescinding the stage of presentation, this would involve the offering of analyzed evidence in judicial proceedings.

II.Computer forensics procedural rules: Philippine setting

The Supreme Court of the Philippines recognizes the role of electronic evidence in proving the commission of crimes and other wrongs that are often aided by computers and technologically-advanced devices, and thus the conviction or punishment of these offenders or wrongdoers.

A.M. No. 01-7-01-SC – Re: Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules shall take effect on the first day of August 2001 following their publication before the 20th day of July in two newspapers of general circulation in the Philippines (dated 17th July 2001).

Salient features of the rules include the recognition of ephemeral electronic communications as object evidence. These forms of communications refer to telephone conversations, text messages, chatroom sessions, streaming audio, and other forms of electronic communication, the evidence of which is not recorded or retained.⁶ The Rules also recognize an electronic document as documentary evidence, such referring to “information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”.⁷ 

III.Lack of Regulation/Accessibility

It is very common among online communities to talk about the apparently widespread availability of computer forensics tools in webspace and even in hardware commercial form. Several blog communities are stating that new computer software forensic tools, initially thought of as restricted to government use are actually available online in different variants or names but produce essentially the same results.⁸ It is also cited that popular computer software programs can be actually used as digital forensic tools among them Photoshop, Gimp, 3DS Max, Maya and Bryce.⁹ It is not uncommon that once in a while a computer forensic software or hardware becomes available only within a confined group, with someone uploading it to a computer for distribution online.¹⁰ Evidently, the inherent characteristic of a program to be easily uploaded has contributed to the accessibility of such computer software. Adding to this problem is the additionally wide availability of computer-literate individuals and machines that would unlock accessibility programs within the software (e.g. passwords, information, or encryption technologies).

Aside: The COFFE Leak

Recently, several IT newspapers, magazines and even newspapers of general circulation reported the upload of the software COFFE developed by Microsoft, making it available to the Internet community for a certain period of time, before it was taken off by Microsoft and U.S. law enforcement authorities.

The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB “thumb drive” that was quietly distributed to a handful of law-enforcement agencies last June 2009 based on reports.

The device contains 150 commands that can dramatically cut the time it takes to gather digital evidence, which is becoming more important in real-world crime, as well as cybercrime. It can decrypt passwords and analyze a computer’s Internet activity, as well as data stored in the computer.

It also eliminates the need to seize a computer itself, which typically involves disconnecting from a network, turning off the power and potentially losing data. Instead, the investigator can scan for evidence on site.¹¹

As news of the leak was only announced by Microsoft during November 2009, the effects of the momentary upload of the COFFE remain to be seen. However, several IT writers expect that reverse engineering codes may be available after several months. They have also opined that the abilities of COFFE are even already present among computer forensic tools accessible online.¹²

IV.Consequences of Lack of Regulation

1. Emergence of underground anti-forensics

In general terms, anti-forensics refers to various systems or procedures to negate, combat, or neutralize the desired effect of computer forensic softwares. It is technically defined as “attempts to negatively affect the existence, amount and/or quality of evidence from a crime scene, or make the analysis and examination of evidence difficult or impossible to conduct.”¹³ Prescinding from these definitions, the negative or undesirable effect of anti-forensics to criminal investigation and later on criminal prosecution, becomes magnified. However, it may be pointed out that anti-forensic tools may either be good or bad as based on the aforesaid criminal investigation purposes. Moreso specifically, others believe that these tools should be used to illustrate deficiencies in digital forensic procedures, digital forensic tools, and forensic examiner education. This sentiment was echoed at the 2005 Blackhat Conference by anti-forensic tool authors, James Foster and Vinnie Liu. They stated that by exposing these issues, forensic investigators will have to work harder to prove that collected evidence is both accurate and dependable. They believe that this will result in better tools and education for the forensic examiner.¹⁴

The following are anti-forensic tools that may be used by Blackhat hackers:

a.Data hiding

Data hiding is the process of making data difficult to find while also keeping it accessible for future use. “Obfuscation and encryption of data give an adversary the ability to limit identification and collection of evidence by investigators while allowing access and use to themselves.”¹⁵

b.Steganography

Steganography is a technique where information or files are hidden within another file in an attempt to hide data by leaving it in plain sight. “Steganography produces dark data that is typically buried within light data (e.g., a non-perceptible digital watermark buried within a digital photograph).” Some experts have argued that the use of steganography techniques are not very widespread and therefore shouldn’t be given a lot of thought. Most experts will agree that steganography has the capability of disrupting the forensic process when used correctly.¹⁶

c. Encryption

The majority of publicly available encryption programs allow the user to create virtual encrypted disks which can only be opened with a designated key. Through the use of modern encryption algorithms and various encryption techniques these programs make the data virtually impossible to read without the designated key.¹⁷

(Note: The succeeding consequences/effects are more concrete and perceived effects of the lack of regulation of forensic softwares).

2. Concerns over the admissibility of forensic evidence

With the easy access to forensic tools, variants to copy its effects, or tools to neutralize its intended benefits, it could be inevitable that concerns over its admissibility may reach the judiciary and thus lead to a change of existing procedural laws.

Evidence, to be admissible, needs to be categorical, factual/definite, adverse to the other party, and knowingly or voluntarily made by the party concerned. Lack of one would make the evidence mere hearsay.¹⁸ The lack of dependability of forensic evidence may impinge on the factual aspect of evidence, and could make the offered evidence hearsay.

Even if forensic evidence maintains its admissibility in procedural law, the weight of such matter would certainly be affected if anti-matter as regards the credibility of such evidence continually propagate. This possibility would certainly be relevant in criminal prosecution as any conviction is based on guilt beyond reasonable doubt, that is, equivalent to moral certainty, or that degree of evidence which produces a conviction in an unprejudiced mind.¹⁹ Forensic evidence that lacks credibility would affect the said degree of conviction and thus affect its weight as evidence for the prosecution. In statutory law, Congress has valued this need for reliability as set forth in Republic Act No. 8792:

“Section 12. Admissibility and Evidential Weight of Electronic Data Message or electronic document. – In any legal proceedings, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence –

1. On the sole ground that it is in electronic form; or
2. On the ground that it is not in the standard written form, and the electronic data message or electronic document meeting, and complying with the requirements under Sections 6 or7 hereof shall be the best evidence of the agreement and transaction contained therein.

In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factor shall be given due regard.”(emphasis supplied).

In the Revised Rules of Electronic Evidence, the need for reliability of forensic evidence takes a more definite shape:

“SECTION 1. Factors for assessing evidentiary weight. - In assessing the evidentiary weight of an electronic document, the following factors may be considered: 

1. The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; 
2. The reliability of the manner in which its originator was identified; 
3. The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; 
4. The familiarity of the witness or the person who made the entry with the communication and information system; 
5. The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or 
6. Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. 

3. Increase in computer-related crimes

As set forth in the discussion above, increased complexity of computer systems may lead to an increase in ways to offset the purpose of such systems. For example, anti-forensic tools may lead to loopholes and damages in computer forensic systems that would lead to more varied problems, problems which the original system aimed to solve.²⁰ To illustrate, computer forensic software that can immediately track the IP address of computers may be neutralized by anti-forensic software that would give the authorities a false or non-existent address. Such anti-forensic software could have turned out to be a variant of a computer software that is available online. With the created maze, the criminal and his Blackhat hacker may nefariously navigate throughout cyberspace given the leeway created by the false address.

(Several online communities have pointed out that this consequence would be the ultimate effect of lack of regulation as its effect towards national economy and public order would be more pervasive).²¹

Conclusion

With the lack of regulation of computer forensic tools, the online communities are certainly correct that national economy and public order would be the ultimate variables directly affected. In the Philippine setting, particularly, it is obvious that regulation, handling and enforcement of only a few statutes, and lax rules and regulations relevant to the abuse software forensics would continue if the current formula of legislation and enforcement remain unchanged.
With the sluggish legislation a factor given, the state of enforcement of software regulation is the one that would be dynamic given joint efforts of the authorities, the private sector, the online communities and the public. For the authorities, the E-Commerce Law has provided some teeth in enforcement as the call of the legislature for reliable evidence should lead them to the creation of a computer forensics division (which is already in place and termed as Anti-Fraud and Computer Crimes Division in the NBI), the continuing education of a dedicated police force through participation in software forensic seminars in country leaders (e.g. United States and Germany), and the need to keep abreast of forensic software updates with the FBI and Interpol. On the other hand, the private sector should involve themselves and enter into partnerships wih the government to produce computer software tools to combat cybercrooks. Government incentives, regulatory or fiscal, may enhance private sector involvement.

As regards the online communities and the public, the government and private sectors should organize symposiums, seminars, and awareness programs on the developments and dangers of computer crimes. Proactivity and coordination between the sectors are a must.

Lastly, responsive legislation should still follow suit. With the ever-increasing complexity of computer systems and softwares, there is an inevitable need for a central electronic information systems authority in the country to address regulation and enforcement of existing and prospective computer forensic laws.

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Endnotes

1. http://en.wikipedia.org/wiki/Computer_forensics
2. http://www.abanet.org/lpm/lpt/articles/tch11071.shtml
3. http://seattletimes.nwsource.com/html/microsoft/2004379751_msftlaw29.html
4. http://en.wikipedia.org/wiki/Computer_forensics
5. http://www.digital-evidence.org/papers/opensrc_legal.pdf
6. Sec. 1(k), Rules on Electronic Evidence
7. Sec. 1(h), Rules on Electronic Evidence
8. http://msforums.ph/forums/t/48034.aspx
9. www.technologyreview.com/computing/20423/
10. http://forum.ebaumnation.com/showthread.php?s=b5269dbaf23903a85c26b520f62283dd&t=33001
11. http://seattletimes.nwsource.com/html/microsoft/2004379751_msftlaw29.html
12. blogs.zdnet.com/Bott/?p=435, http://msforums.ph/forums/t/48034.aspx
13. Rogers, D. M. (2005). Anti-Forensic Presentation given to Lockheed Martin. San Diego.
14. Foster, J. C., & Liu, V. (2005). Catch me, if you can… Las Vegas: Blackhhat Briefings
15. Peron, C.S.J. (n.a.). Digital anti-forensics: Emerging trends in data transformation techniques. from Seccuris: http://www.seccuris.com/documents/whitepapers/Seccuris-Antiforensics.pdf
16. Berinato, S. (2007). Supra.
17. http://en.wikipedia.org/wiki/Counter_forensics#cite_note-2#cite_note-2
18. Regalado, F.D., Remedial Law Compendium, 1998
19. Rule 133, Sec. 2; Rules of Court
20. http://www.abanet.org/lpm/lpt/articles/tch11071.shtml
21. http://seattletimes.nwsource.com, supra; http://msforums.ph/forums/t/48034.aspx; http://www.gseis.ucla.edu/iclp/bfox.html

]]> http://techlaw.berneguerrero.com/2009/12/07/the-dangers-of-non-regulation-of-forensic-software-applications/feed/ http://techlaw.berneguerrero.com/2009/12/07/automated-election-system-how-reliable-is-it/ http://techlaw.berneguerrero.com/2009/12/07/automated-election-system-how-reliable-is-it/#comments Mon, 07 Dec 2009 11:36:45 +0000 Berne http://techlaw.berneguerrero.com/2009/12/07/automated-election-system-how-reliable-is-it/ by Mona Angela E. Vargas

INTRODUCTION

It was the year 2004 when I voted for the first time. I could not remember the exact date but I recall how hot and sweltering it was that day when my childhood friends and I lined up at the Comelec office in Valenzuela City to have ourselves registered as voters for the coming election in May that year. All six of us were first time voters and relatively new members of the nation’s workforce. Earning our own keep since graduating from our respective colleges and universities in 2002. The May 2004 election was a national one so I got to vote for the first time my choice for president, vice president, senators, district representative, party list representative and local officials for my hometown, Valenzuela City. I could not remember who I voted for in the other positions but I can still recall that my president was Senator Panfilo Lacson.

The national election in 2004 was when President Gloria Macapagal Arroyo sought to renew her post and hoped to serve a complete six year term as chief executive officer of the country. She went head to head with the King of Philippine Movies, the late Fernando Poe Jr.. Election 2004 was where President Arroyo was accused of massive cheating. It was that election season when the highly controversial “Gloriagate Scandal” was birthed and. It was discovered much later exposing to the public the very likely possibility that President Arroyo resorted to “dagdag-bawas” to make sure that she will be declared the winner. “The Gloriagate Scandal” is the wiretapped conversation between President Arroyo and Comelec Commissioner Garcillano where Ms. Arroyo was asking Garcillano about the “situation” in Mindanao. The opening line of the Garcillano tapes was the now infamous “Hello Garci?,” which was even made into ringtones by techsavvy Filipinos, who despite the gloom and the gravity of the issue still find a way to make light out of it.

The people, nevertheless, were outraged with the “Hello Garci?” expose. The administration took lashings from the angry opinion writers and radio commentators. Harsh criticisms were thrown President Arroyo’s way from every direction. Some even took the streets and stage huge protests and rallies. The Senate conducted investigations on the matter. It did not help that earlier Fernando Poe Jr. died, allegedly because of “sama ng loob” only months after losing in the election. With the Garcillano tapes, FPJ was practically made a martyr, a victim, the symbol of the oppressed under the regime of President Arroyo. It cost the President an on-air public apology but, as outrageous as it may seem, she remains in power and was never ousted in her seat.

The “Gloriagate” was nothing new. It just drew so much attention and outrage because it is the highest position in the land that was at stake. And at that time many people had already lost their confidence with the Arroyo administration. And also because it was the first time an evidence as incriminating and repulsive as that blew up on a national scale. But “dagdag-bawas” is an age old tradition among our politicians. These days you will never really know for sure who the cheaters are and who are really clean, if there is still one. Philippine politics is so dirty. And our elections had been marred with corruption and even violence as far as anyone can remember. Many people have lost their trust in the election system that a substantial number of Filipinos do not go out and vote on election day. Others have found it easier to just get sucked on the system of corruption and have their votes up for sale. I myself have started to become disillusioned. And while I will be voting this coming 2010 elections, I sometimes think that it will be a futile exercise because whoever gets elected will just do the same thing. And I am still young. Imagine the disillusionment of those who are more advance in age.

But there is always a silver lining as the saying goes. Our leaders took the initiative to reform the electoral system as evidence by the passing of Republic Act (RA) 8436 or the “Election Automation Act of 1997” which authorized the adoption of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. The 1998, 2001 and 2004 elections, however, came and went but we still had purely manual elections. Then on January 23, 2007, RA 9369 was passed amending RA 8436 authorizing anew the Comelec to use an AES. The Comelec took on the challenge and adopted and pilot-tested an AES in the 2008 Autonomous Region of Muslim Mindanao (ARMM) baranggay elections. With the success of the ARMM election, Comelec felt that the whole country is ready for the full automation of our electoral system. Proponents and supporters of the AES thought that with a computerized election, the problem of cheating will be eliminated because vote tabulations will become faster so that there will be virtually no more room for cheaters to execute their evil plans. “Dagdag-bawas” and other forms of cheating, they say, were possible because of delays in the counting and transmission of votes. This, however, did not sit well with some naysayers and skeptics who argued that AES will not eliminate cheating. On the contrary it will just also mutate into computerized cheating, which is larger in scale and is, therefore, more frightening. So many ugly scenarios have been conjured up by these critics. Some of those were power failure on the day of the election itself, the machines breaking down and the vulnerability of the system to hacking.

The Concerned Citizens’ Movement, led by University of the Philippines law professor Atty. Harry Roque, filed a petition in the Supreme Court seeking to nullify the Comelec’s award of the 2010 Elections Automation Project to Smartmatic-TIM Corp. and to permanently prohibit Comelec and Smartmatic-TIM Corp. from signing and/or implementing the corresponding contract-award. On September 10, 2009, in an en banc decision (G.R. No. 188456), the Supreme Court dismissed the petition, upholding the legality of the poll automation in 2010. With that decision, it is now all systems go for automation and the criticisms of the non-believers would now have to be put aside and taken with a grain of salt.

So okay, automated elections is upon us and come May 10, 2010, we will be trooping to our respective precincts and will experience firsthand how to vote electronically. It is somewhat exciting as all untried and untested endeavors are. With the legality of the poll automation already settled, let us now look more closely to the machines and know how they work. For it is only when the machines are reliable, of course coupled with competency and integrity of the Comelec officials and personnel and an educated electorate, that we will have a successful computerized election. We now have to ask, how reliable is the AES?

AUTOMATED ELECTION SYSTEM: HOW RELIABLE IS IT?

On December 22, 1997, Congress enacted RA 8436 authorizing the adoption of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. For some reasons, however, the 1998, 2001 and 2004 elections were not automated but still conducted manually. On January 23, 2007, RA 9369 was passed amending RA 8436, authorizing anew the Comelec to use an AES. Sections 6 and 10 of RA 9369 defined the specific mandates of Comelec with regard to automated elections:

SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows:

“SEC. 5 Authority to Use an Automated Election System. - To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding

SEC. 10. Section 8 of Republic Act No. 8436 is hereby amended to read as follow:

“SEC.12. Procurement of Equipment and Materials. - To achieve the purpose of this Act, the Commission in authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other service, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulation. With respect to the May 10, 2010 election and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or board. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness.

“In determining the amount of any bid from a technology, software or equipment supplier, the cost to the government of its deployment and implementation shall be added to the bid price as integral thereto. The value of any alternative use to which such technology, software or equipment can be put for public use shall not be deducted from the original face value of the said bid.”

The AES, however, was not utilized for the May 2007 elections due to time and budget constraints.

RA 9369 also authorized the Comelec to create the Comelec Advisory Council and the Technical Evaluation Committee. The former is empowered, among other things, to recommend the most appropriate, secure, applicable and cost-effective technology to be applied in the AES, in whole or in part. The latter, on the other hand is tasked to certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercises, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of RA 9369 and based on defined and documented standards.

Comelec was able to implement an AES in the 2008 baranggay elections in the ARMM. It uses two kinds of technologies: (a) direct recording electronics (DRE) technology in the province of Maguindanao, and (b) optical mark reader (OMR), specifically the Central Count Optical Scan (CCOS) for the rest of ARMM. The DRE uses a touch pad device where voters simply select their choice of candidates by touching selected areas of the touch pad. The voter then gets a paper printout that serves to inform the voter that the system recorded the votes properly and accurately. The OMR, on the other hand, uses paper ballots which contain the names of the candidates and the different races being contested where voters shade or mark the circles corresponding to the names of the candidates they choose to vote for. At the end of the election day, these paper ballots are then brought to a counting center where the ballots are scanned by a machine that detects the voter’s marks and counts their votes. Between the two, the DRE is a more expensive technology. Two different kinds of technologies were used in order to gain experience with using the two dominant automated election technologies as well as gain experience in combining the results from these two systems into a general or overall election outcome.

The success of the ARMM election paved the way for the Comelec to prepare for a full nationwide automation for the 2010 national and local polls, with the lessons learned from the ARMM experience influencing the choice of technology for the 2010 automated elections.

In March 2009, the Comelec released the Request for Proposal (RFP) or Terms of Reference (TOR) for the nationwide automation of the voting, counting, transmission, consolidation and canvassing of votes for the May 2010 elections referred to as the “2010 Elections Automation Project.” It consisted of three elaborate components: (1) Paper-based AES- (a) Election Management System (EMS), (b) Precinct Count Optic Scan (PCOS) System and (c) Consolidation/Canvassing System (CCS); (2) Provision for electronic transmission of election results using public telecommunication networks; and (3)Overall project management. The PCOS system is similar to the CCOS system in that they both use the OMR technology. Their difference lies in how the votes were counted afterwards. Under the CCOS, the voters drop their ballots in ballot boxes after they have filled them up and thereafter, these ballot boxes were brought to the counting centers where the ballots were scanned, counted and canvassed. We can say that the counting of the votes is centralized. Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. There are no more ballot boxes as the ballots are directly feed into the PCOS machine. The results at the precinct are then electronically transmitted to the next level, and so on. The PCOS dispenses with the physical transportation of ballot boxes from the precincts to the counting centers.

Subsequently, the Comelec through its Special Bids and Awards Committee (SBAC) caused the publication in different newspapers of the “Invitation to Apply for Eligibility and to Bid” for the procurement of the goods and services to be used in the automation project. For this purpose also, Congress passed RA 9525 appropriating P11.3 billion pesos as supplemental budget for the automation project. After the bidding procedures, the Comelec declared the joint venture of Total Information Management Corp. (TIM) and Smartmatic International Corp. (Smartmatic) as the best complying bidder. Pursuant to a joint venture agreement, the two companies caused the incorporation of a joint venture corporation that would enter into the contract with Comelec. The Securities and Exchange Commission issued a certificate of incorporation in favor of Smartmatic TIM Corp. on July 8, 2009. On July 10, 2009, Comelec and Smartmatic TIM Corp executed a contract for the lease of goods and services to be used for the automation project.

HOW DOES THE PCOS WORK?

As of this writing, the Source Code of the AES has yet to be released so that I could not really describe the exact capabilities of the machine. The Source Code is defined under Sec. 2 of RA 9369 as “human readable instructions that define what the computer equipment will do.” But a reading of the draft of the CAC’s “Post-Election Report on the Use of Automated Election System in the 2008 ARMM Elections,” submitted to the Joint Congressional Oversight Committee on AES and the Comelec, as well as the Roque case, will give us a brief description on how the OMR technology works. This system uses paper ballots which contain the names of the candidates and the different races being contested. Voters then shade or mark the circles corresponding to the names of the candidates they choose to vote for. The filling up of the ballots then may be compared to answering test questions in NSAT or the UPCAT. The filled up ballots are then dropped in ballot boxes where they will be stored until closing of the voting and thereafter said boxes will be brought to a counting center where the ballots will be fed to machines which will count and canvass the votes, as in the case of CCOS. Or the ballots will be fed into a machine, which serves as the ballot box and the counting machine at the same time, as in the case of PCOS.

I had the chance to watch on television the “A 2010 Poll Automation Forum,” telecast live by the ANC, a local cable news network owned and operated by ABS-CBN, on September 21, 2009 at 8 pm. It was attended by representatives from the Comelec, Parish Pastoral Council for Responsible Voting (PPCRV), representatives of various political parties, representatives from the IT industry, NGOs and concerned citizens groups. The panel was composed of Director Ferdinand Rafanan, Chairman of the Comelec SBAC; Atty. Howard Calleja, legal counsel of PPCRV, Mr. Ray Anthony Roxas Chua III of the Commission on Information and Communications Technology and also Chairman of the Comelec CAC; and Mr. Cesar Flores, Sales Director of Smartmatic International Corp. In that forum Comelec-Smartmatic officials had conducted an actual demonstration on how voters will feed the filled up ballots into the machine as well as how to start the machine and close it after voting ends.

Some members of the audience were asked to participate as mock voters where they were given sample ballots and were asked to fill them up. A public school teacher in the audience was asked to pose as a Board of Election Inspector (BEI). She was given a key that she inserted in the designated key slot, a button was pressed and the machine opened. The BEI had to override the machine by typing a password or a passcode so that the machine will start. It gave out a paper printout indicating that the machine was already open, that it was empty and that it was ready to receive ballots. The mock voters lined up and one by one fed their ballots into the machine. The machine “ate” each ballot that was fed into it and thereafter it produced a paper printout (for each ballot fed) from where the voters may verify whether the machine had correctly recorded their votes. In one instance the machine rejected a ballot because it was an erroneous one. As explained by Comelec-Smartmatic officials, an erroneous ballot is a ballot wrongly shaded such as when the voters had smudged them. According to Comelec-Smartmatic officials, that kind of ballots will be rejected by the machine and true enough the erroneous ballot during the demonstration was actually rejected by the machine.

This particular matter, however, is contentious. In the column of Former Chief Justice Artemio V. Panganiban appearing in the Philippine Daily Inquirer (PDI) on October 18, 2009 (With Due Respect), he wrote that Comelec Commissioner Rene V. Sarmiento explained that “the PCOS will not reject ballots in case of over voting. They will merely not count the position wherein there was an over voting. In a scenario where a voter shades more than 12 senatorial slots, Commissioner Sarmiento said, “the PCOS will not count the votes for the senatorial position because of such over voting but the machine will count the other valid votes cast for other electoral positions.” Former Chief Justice Panganiban opined that it is rather confusing as TV viewers and the live audience at the forum witnessed the PCOS’ refusal to accept the erroneous ballot. He added that Commissioner Sarmiento’s response that the PCOS “will not reject the ballots” was belied by the stark TV demonstration. I could not exactly remember if the erroneous ballot in the demonstration was merely smudged or it has an over voting but I do remember that it was rejected by the machine. If it was merely smudged, then the Comelec-Smartmatic was right in saying that it will be rejected, but if it has over-voting, then indeed, Commissioner Sarmiento was mistaken in his response. Is it correct to assume then that if the ballot is smudged the machine will totally reject it and when the ballot has an over voting in it, the machine will still accept it but it will just invalidate the votes where there is an over voting? The Comelec really needs to clarify this issue. I think it needs to clearly define what constitutes an erroneous ballot and when will it be totally rejected by the machine. It also begs another question, what happens then to the rejected ballots? Can the voter asked for another ballot and repeat the process of filling it up and feeding it into the machine? If he/she cannot do so, then would it not be tantamount to depraving him/her of his/her right to vote? This matter was not addressed in the forum.

When voting ends, the machine will again produce a paper printout reflecting the total number of ballots fed into the machine, which should correspond with the total number of voters who actually voted in the given precinct, and the total number of votes cast for each elective position. The BEI again would have to override it to officially close the election.

DO THE PCOS MACHINES SATISFY THE MINIMUM SYSTEM CAPABILITIES PRESCRIBED BY RA 8436, AS AMENDED?

The Supreme Court, in its decision in the Roque case, answered the above question in the positive. The minimum system capabilities are provided for under Sec. 7 of RA 9369 (RA 8436, as amended):

“SEC.6. Minimum System Capabilities. - “The automated election system must at least have the following functional capabilities:

1. Adequate security against unauthorized access:
2. Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results;
3. Error recovery in case of non-catastrophic failure of device;
4. System integrity which ensures physical stability and functioning of the vote recording and counting process;
5. Provision for voter verified paper audit trail;
6. System auditability which provides supporting documentation for verifying the correctness of reported election results;
7. An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible;
8. Accessibility to illiterates and disable voters;
9. Vote tabulating program for election, referendum or plebiscite;
10. Accurate ballot counters;
11. Data retention provision;
12. Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process;
13. Utilize or generate official ballots as herein defined;
14. Provide the voter a system of verification to find out whether or not the machine has registered his choice; and
15. Configure access control for sensitive system data and function.

“In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. This evaluation system shall be developed with the assistance of an advisory council.”

The SBAC Memorandum dated June 3, 2009, as approved by Comelec Resolution 8608, categorically stated that, based on the submitted report of the SBAC-Technical Working Group (TWG), Smartmatic TIM’s proposed systems and machines passed all the end-to-end demo tests using the 26-item checklist criteria adopted by the Comelec to ensure compliance with the above minimum systems capabilities with an accuracy rating test of at least 99.955%. Below is the reproduction in full of the corresponding answers/remarks to each of the 26 individual items.

ITEM	REQUIREMENT	REMARK/DESCRIPTION
1	Does the system allow manual feeding of a ballot into the PCOS machine?	Yes. The proposed PCOS machine accepted the test ballots which were manually fed one at a time.
2	Does the system scan a ballot sheet at the speed of at least 2.75 inches per second?	Yes. A 30-inch ballot was used in this test. Scanning the 30-inch ballot took 2.7 seconds, which translated to 11.11inches per second.
3	Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)?	Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images files contained the images of the front and back sides of the ballot, totalling to 2,000 ballot side.   To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast.
4	Is the system a fully integrated single device as described in item no. 4 of Component 1-B?	Yes. The proposed PCOS is a fully integrated single device, with built-in printer and built-in data communications ports (Ethernet and USB).
5	Does the system have a scanning resolution of at least 200 dpi?	Yes. A portion of a filled up marked oval was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi.   File properties of the decrypted image file also revealed 200 dpi.
6	Does the system scan in grayscale?	Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19.
7	Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple users access levels?	Yes. The system required the use of a security key with different sets of passwords/PINs for Administrator and Operator users.
8	Does the system have an electronic display?	Yes. The PCOS machine makes use of an LCD display to show information: if a ballot may be inserted into the machine; if a ballot is being processed; if a ballot is being rejected; on other instructions and information to the voter/operator.
9	Does the system employ error handling procedures, including, but not limited to, the use of error prompts and other related instructions?	Yes. The PCOS showed error messages on its screen whenever a ballot is rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error.
10	Does the system count the voter’s vote as marked on the ballot with an accuracy rating of at least 99.995%?	Yes. The two rounds of tests were conducted for this test using only valid marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error.   625 ballots with 32 marks each were used for this test. During the comparison of the PCOS-generated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated.   To prepare for other possible missed out marks, 650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy.
11	Does the system detect and reject fake or spurious, and previously scanned ballots?	Yes. This test made use of one (1) photocopied ballot and one (1) “re-created” ballot. Both were rejected by the PCOS.
12	Does the system scan both sides of a ballot and in any orientation in one pass?	Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured.
13	Does the system have necessary safeguards to determine the authenticity of a ballot, such as, but not limited to, the use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be recognized by the system?	Yes. The system was able to recognize if the security features on the ballot are “missing”.   Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codes and timing marks were used and were all rejected by the PCOS machine.   The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on top portion of the ballot causing the rejection of the ballot.
14	Are the names of the candidates pre-printed on the ballot?	Yes. The Two sample test ballots of different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide.   The first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question.   The other showed 609 pre-printed candidate names, also for fourteen (14) positions including three (3) survey questions.
15	Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law?	Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totalled 609.   This type of test ballot was also used for test voting by the public, including members of the media.   Arial Narrow, font size 10, was used in the printing of the candidate names.
16	Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine.
17	Does the system recognize partial shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: top half shade; bottom half shade; left half shade; and right half shade These partial shade marks were all recognized by the PCOS machine
18	Does the system recognize check (ü) marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. One (1) test ballot with one check (ü) mark, using a pencil, was used for this test.   The mark was recognized successfully.
19	Does the system recognize x marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?	Yes. One (1) test ballot with one x mark, using a pencil, was used for this test.   The mark was recognized successfully.
20	Does the system recognize both pencil and ink marks on the ballot?	Yes. The 1000 ballots used in the accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder.   A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots.
21	In a simulation of a system shut down, does the system have error recovery features?	Yes. Five (5) ballots were used in this test. The power cord was pulled from the PCOS while the 3rd ballot was in the middle of the scanning procedure, such that it was left “hanging” in the ballot reader.   After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The “hanging” 3rd ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized.
22	Does the system have transmission and consolidation/canvassing capabilities?	Yes. The PCOS was able to transmit to the CCS during the end-to-end demonstration using GLOBE prepaid Internet kit.
23	Does the system generate a backup copy of the generated reports, in a removable data storage device?	Yes. The PCOS saves a backup copy of the ERs, ballot images, statistical report and audit log into a Compact Flash (CF) Card.
24	Does the system have alternative power sources, which will enable it to fully operate for at least 12 hours?	Yes. A 12 bolt 18AH battery lead acid was used in this test. The initial test had to be repeated due to a short circuit, after seven (7) hours from start-up without ballot scanning. This was explained by TIM-Smartmatic to be caused by non-compatible wiring of the battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatic’s explanation. The PCOS machine was connected to regular power and started successfully. The following day, the “re-test” was completed in 12 hours and 40 minutes xxx 984 ballots were fed into the machine. The ER, as generated by the PCOS was compared with predetermined result, showed 100% accuracy.
25	Is the system capable of generating and printing reports?	Yes. The PCOS prints reports via its built-in printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log.
26	Did the bidder successfully demonstrate EMS, voting counting, consolidation/canvassing and transmission?	Yes. An end-to-end demonstration of all proposed systems was presented covering: importing of election data into the EMS; creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results to the: [1] from the PCOS to city/municipal CCS and the central server. [2] from the city/municipal CCS to the provincial CCS. [3] from the provincial CCS to the national CCS; receipt and canvass of transmitted results: [1] by the city/municipal CCS from the PCOS. [2] by the provincial CCS from the city/municipal CCS. [3] by the national CCS from the provincial CCS; receipt of the transmittal results by the central server from the PCOS.

The tests, however, as admitted by the Comelec, were done literally in the Palacio del Governador building, where a room therein was made to simulate a town and the adjoining rooms a city, etc. As determined by the Supreme Court, the real worth of the PCOS system and the machines will only be determined after they shall have been subjected to the acceptance tests expressly specified in the RFP: (1) lab test, (2) field test, (3) mock election test, (4) transmission test and the (5) final test and sealing procedure of all PCOS and CCS units using the actual Election Day machine configuration. The final test shall be conducted at least three days before election after which the PCOS and CCS units shall be sealed for election day use.

It would also be worthy to note that per information on the website of Smartmatic, the SAES 1800 model of the PCOS machine, the same one offered by the company and accepted by Comelec, has an accuracy rating of over 99.99999%.

THE SUSCEPTIBILITY OF THE AES TO HACKING AND OTHER COMPUTER FRAUDS

Some people are afraid that the AES is vulnerable to hacking, just like the voting machines used in certain precincts in Florida, USA during the presidential election where George W. Bush went head to head with Al Gore. The fear, however, is somewhat misplaced. As determined by our Supreme Court, there are two differences between the AES adopted by US and the AES we are going to adopt. The first difference is with regard to the Source Code. The Source Code in the Florida precincts was allegedly kept secret by the machine manufacturing company and the American public did not know exactly how the machines counted their votes. The Source Code in our AES, on the other hand, shall be opened for review by political parties, candidates and the citizens’ arms or their representatives. Secondly, in the Florida precincts the machines did not count the votes but instead it appeared that the votes cast have been stored in a memory card that was brought to a counting center at the end of the day. In our AES, on the other hand, the PCOS machines in the precincts will also be the same machines that would tabulate and canvass the votes.

I think either way, whether the Source Code should be revealed to the public or not and whether the PCOS machines itself will count the votes or not, the AES may still be susceptible to hacking. In the ANC forum, a number of IT experts have expressed their fears in the fact that the Source Code will be revealed to the public. They said it would be a dangerous thing because by exposing how the system works, you will be giving the chance for hackers to study it and thought of ways to access it or interfere with it. They said it would be best if the Source Code not be revealed to the public. On the other hand, Manuel A. Alcuaz Jr., a columnist for PDI Business Section wrote and recommended on his July 6, 2006 column (Mapping the Future) that “OMR machines should not have any network connection. The election results should be copied to USB memory sticks, which can be subsequently loaded to a separate PC that will transmit the results to the Comelec canvassing system at the municipality and to the dominant majority parties, as well as the citizen’s arms such as PPCRV and Namfrel.” The ideas proposed by the IT experts and Mr. Alcuaz are exactly the same as that implemented in the Florida precincts. Both parties seemed confident that it is the proper thing to do and yet it proved to be a disaster in the US election. I think it just goes to show that not one method is perfect. Every method is at risk of being hacked. What the Comelec should do is to find a middle ground to balance interests and to find the best possible method that will result to minimal damage and would serve the greater good.

The Supreme Court, however had put much faith in the system when it concluded in the Roque case that even if the AES has its flaws, the system is well-protected with sufficient security measures in order to ensure honest elections. It explained that the possibility of hacking is very slim because the machines are only online when the results is being transmitted, which would only take about one or two minutes. Given the tiny span of time when the AES would be vulnerable (here the high court implied that hacking is possible only when the machine is online and not otherwise), one would need a super computer in order to hack the system.

THE POSSIBILITY OF A FAILURE OF ELECTION

To address the possibility of systems failure, one of the requirements provided for by the RFP to interested bidders is to submit continuity and back-up plans. Section 2 of RA 9369 defines continuity plan as “a list of contingency measures, and the policies for activation of such, that are put in place to ensure continuous operation of the AES.” Smartmatic TIM Corp. has provided continuity and back-up plans in case the machines failed on the day of the election itself, which includes the provision for 2,000 spare PCOS machines in addition to the 80,000 units assigned to equal number precincts all over the country. The continuity and back-up plans are intended to address the following eventualities: (1) the PCOS fails to scan ballots, (2) the PCOS scans the ballots but fails to print the election returns (ERs) and/or (3) the PCOS prints but fails to transmit the ERs. Should (1) or (2) occur the remedy would be to get a spare PCOS from the 2,000 units, if there is still an available one, otherwise the PCOS from another precinct will be used. Should all PCOS in the given municipality or city fail, then manual counting of ballots and manual accomplishment of ERs shall be resorted to in accordance with Comelec rules. And in the event that (3) occurs, the PCOS may be brought to the nearest precinct or polling center which has a functioning transmission facility.

The worst that could happen is when all the 82,000 machines failed on election day. While this is most unfortunate, the Supreme Court ruled that still there would be no failure of elections in this case. The remedy would be to go back to manual counting of votes and manual transmission of the ERs, PCOS being a paper-based technology. Even if all the machines break down the paper ballots would still be there. Therefore, failure of elections would be a very remote possibility.

POSSIBLE PROBLEMS WITH THE OMR TECHNOLOGY AS EXPERIENCED IN THE 2008 ARMM ELECTIONS

The ARMM elections in 2008 were observed to be generally peaceful and orderly as reported by the CAC in their Post-Election Report. The OMR technology was considered a user-friendly technology but some problems and issues were still encountered. The problems and issues were divided into two groups, technical problems on election day and those which were attributed to user experience. The problems which may be applicable to the PCOS system are listed below.

Technical problems on election day:

1. Rejection of valid ballots that were crumpled or folded and those which contain unnecessary markings and smudges which slowed down the counting.
2. Discrepancies in the counting of ballots between those who actually voted with results counted. In other words, there were missing ballots.
3. Incidents of over voting due to BEI’s voting in their assigned precincts. Here the results were invalidated and Comelec had to override it.
4. CCS was not programmed to accommodate failure of elections.
5. The machines overheated, stopped functioning and had to be restarted.
6. Constant paper jamming of ballots.
7. Transmission problems caused by untried and untested private network installed too close on election day resulting to delay of the transmission and compromise the integrity and security of the AES.

Assessment of User Experience:

1. Votes shaded in the ballot were exposed to tampering. There were reports of unscrupulous erasures.
2. Distribution of the ballots was exposed to threat of advance shading.
3. Voters accidentally scratched or ink-blot the ballots hampering its optical scanning.
4. BEIs accidentally tore off the bar code of ballots resulting in their rejection.
5. BEIs lack procedural knowledge on the disposition of invalid ballots.

The above scenarios are actually frightening if you would come to think of it. But there is not much we can do but assume and hope that the Comelec has carefully considered these things and formulated the necessary rules to prevent them from occurring or at the very least to minimize and control the damage when their occurrence is inevitable. Note that the problems above, even the technical ones, were actually due to human errors.

CONCLUSION

To the question of the reliability of the machines and the AES as a whole, it is very possible to achieve 100% reliability and credibility. After all machines are man-made inventions and there is no limit to what the human mind can think of and do. But 100% reliability and credibility though attainable remains to be an ideal also because, ironically, of human intervention. We can say the same thing here, 100% reliability and credibility remains to be an ideal, a dream, because, again, there is no limit to what the human mind can think of and do. Force majeure or acts of god, sure may affect the proper functioning of the machines or its breakdown but most doomsday scenarios connected with poll automation drawn by skeptics are possible only if humans intervene. As what Mr. Cesar Flores had aptly said in the ANC forum, the problem is not so much with the machines but with humans.

This is of course not to say that the we should just remain hopeful that the machines will not bogged down or that we should fully trust the electorate and be complacent. On the contrary we must be more vigilant in protecting our votes and ensuring that the integrity of the electoral system is upheld at all times. So I think that we should stop being so negative about the idea of going automated and instead focus our energies in helping the Comelec make the 2010 automation a success. We must welcome this change and consider it as a tool that will help restore the faith of the people in our electoral system and ultimately in our government.

The CAC in their Post-Election Report stated that “the consequent gains from using the OMR and DRE technologies were diminished by the inability to use them side-by-side with effective change management. There is a need to make all election stakeholders the subject and not the object of technology. Also, there is a need to prepare everyone for change (both psychologically and technically) before change can truly transform everyone’s mindset. Moreover, a change in the electoral values must go hand-in-hand with the desired electoral reforms. For in these situational realities, the problem of corruption cannot be solved by technology alone but by the individual and collective conversion of voters, politicians and election stakeholders.” (Emphasis added) This sentiment was also echoed by Senator Richard J. Gordon, the chief author of RA 9369, in an article he wrote in PDI dated March 21, 2009 and entitled “ Meeting the Test of Credibility.” He said, “One act of reform, of course, will not transform our electoral system and our Comelec into a haven for suffrage. The important thing, however, is that the reform process will now start.xxxxx With this paradigm shift in election management, public trust in our electoral processes can be nurtured again. And our credibility as a democratic society will be enhanced.” (Emphasis added)

The best tools to prevent the unthinkable from happening would be the acceptance of change and preparation, training and education of all election stakeholders.

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BIBLIOGRAPHY

The following reading and research materials has helped me tremendously in completing this paper and supplemented my very limited knowledge on poll automation:

• Republic Act No. 8436, An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes, December 22, 1997
• Republic Act No. 9369, An Act Amending Republic Act No. 8436, Entitled “An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as amended, Republic Act no. 7166 and Other Related Elections Laws, Providing Funds Therefor and for Other Purposes, January 23, 2007
• A Draft of the Post-Election Report on the Use of Automated Election System (AES) in the 2008 ARMM Elections, submitted to the Joint Congressional Oversight Committee on Automated Election System and the Commission on Elections by the Comelec Advisory Council, October 23,2008 (http://www.cenpeg.org/2010%20ELECTIONS/CAC%20EVALUATION%20REPORT%20ARMM%20ELECTION%202008-11-16.pdf)
• “Meeting the Test of Credibility” by Senator Richard J. Gordon, Philippine Daily Inquirer, October 21, 2009
• “Automated Election Fraud,” Mapping the Future by Manuel A. Alcuaz Jr., Philippine Daily Inquirer, July 6, 2009
• Harry L. Roque Jr. et al vs. Comelec et al, penned by Justice Presbiterio J. Velasco Jr., G.R. No. 188456, September 10, 2009
• “Premature Campaign; Automation Back-up Plans,” With Due Respect by Former Chief Justice Artemio V. Panganiban, September 20, 2009
• “A 2010 Poll Automation Forum,” live telecast on ABS-CBN News Channel, 8pm, September 21, 2009

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