Wednesday, October 03, 2012

Web and the State 1: Cybercrime Law and Liberty

I got into a few friendly exchanges and debates on the new law, RA 10175 or the Cybercrime Prevention Act, signed into a law only last month. There are three threads here, about 12 pages long including this image below, so grab your fave snacky, cheers.

Thread 1, October 01 to 02:

Anthony: Cybercrime Law: I've reconsidered the issue and now agree with Harry Harry Santos that there's cause for concern. Initially I thought that the law's passing wouldn't matter since it would be difficult to implement.

However, as the latest PNP Facebook fiasco shows, actual implementation isn't the danger. The real danger is that it can be used to intimidate.

Nonoy Oplas makes the point that the law does contain some useful points but when bad provisions are inserted, I'd say that it makes the whole thing more dangerous.

Nonoy Oplas I think I've posted several libelous sentences in my blog alone, especially against the climate alarmists, party list groups, RH supporters, foreign aid establishment, etc.. I will wait that someone will sue me for libel. Otherwise, I think the fear and alarm over this law is much larger than the actual danger itself, pretty much like climate alarmism.

Btway Anthony, what if someone will hack your company website, put statements like "Shoot and kill libertarians, these are cold blooded individualist people" and put your face there, other people they think are libertarians. They do this simply because they don't like your ideas, or they don't like your face, or they are envious of your successful business, whatever reason. You correct the problem, they do it over and over again.

My bet is that if you have the resources and time and you can trace the perpetrators, you will sue these people using this law and put them to jail and publicize that you have put someone to jail because of repeated personal attacks on you on the web.

Paul The alarm over RA10175 is similar to climate alarmism, except that the latter has no basis, and the former actually has provisions that could be used by the political elite to intimidate enemies. Your view of the law will also depend on if you think libel and slander should be considered crimes at all.

I don't think RA10175 did anything to further affirm the ownership of servers or databases, the existence of which is not merely 'cyber,' and thus ought to be covered by existing laws against property violations.

And punishing spam is punishing a non-violation of property. We might as well imprison people who hand us brochures at the malls; these are unsolicited offers after all.

Nonoy Oplas Let me share my recent experience. There is a proposed coal power plant in a place where I was born and grew up, attended until high school, Cadiz City in Neg. Occ. The anti-coal naturally went berserk, went to Greenpeace for support, and posted cute photos of wind farms, solar farms. etc. I naturally debated them saying that coal is among the cheapest and most stable energy sources, that it does not need more subsidy, etc.

The anti coal camp, so many of them, ganged me up. Calling me KSP, kapareho ni Hitler mag isip, hindi nag iisip, zero EQ, walang pinag aralan, other personal attacks. I called on the attention of the moderators to step in as the issue is side tracked and people keep on hitting personally those who do not agree with their environmental dreams. The moderators did not step in as they themselves are anti-coal. I resisted several attempts to launch a counter personal attacks. I would shut up for a few days and when my time would permit, I would engage them again in another debate. And the same practice of personal attacks would be hurled against me.

If I have the resources and time, I would like to hail these people to court. Unfortunately, I am poor to do that. I would rather spend my money for food and other household needs. The web, fb especially, has been the favorite hang out of people who have little or zero tolerance for opposing ideas. They are lucky if they keep attacking people who have high patience but low financial resources to hail them to court. But some guys are richer than me and would try that avenue, instead of engaging in endless personal attacks or resort to physical violence.

Paul  The appropriateness of such remarks ought to be determined by the website proprietor. Anything else is censorship. All of you were free to participate in such a discussion, even if this meant being insulted. You were likewise free to leave the discussion.

In addition, even administrators' fairness will be judged based on their attitude to dissenting opinions. If the anti-coal moderators removed your posts or edited your posts maliciously, this would reflect badly on them, but there is no property violation involved.

Nonoy Oplas In this case, the subject has shifted from private property to personal dignity. Most people would pass or avoid resorting to legal remedies when personal insults are done repeatedly. But a few would take it differently. Since some people have that incorrigible habit of resorting to personal verbal attacks -- and what's next, personal physical attacks -- and existing civil society mediators like discussion group moderators have not done their work well, then adversely affected individuals should be given another avenue other than (a) endless personal verbal attacks, that can later turn to (b) physical attacks and violence. Having a law where differences are settled in a transparent manner, and there are clear transparent rules and provisions that can guide the conduct and behavior of the two or more opposing camps, would help settle disputes while giving lessons to others watching on the sideline.

Paul What seems a more sensible solution: A. Legislating the prohibition of remarks made through computer systems, or B. Closing an internet browser window?

Re: the possibility of an escalation to physical attacks, are we going to have a government launching preemptive attacks a la 'Minority report'? And is it really best to leave it to government to "give lessons" about how free individuals "should" interact, in the name of personal dignity?

Anyway I'm rather glad to see Facebook friends aware of the dangers involved.

Nonoy  I think hateful remarks are not prohibited. People can do and say what they want, just stand by their actions and words. I can insult anyone repeatedly, he/she can do the same to me repeatedly. If no one will go to court, the fear and alarm is moot and academic. If someone will, then let's take it from there. Who would look more stupid and be subject to another round of "cyber bullying", the one suing or the one being sued of libel? Even communist China can not really regulate the web.

The physical attacks that I mentioned above is not related to government. It's more a possibility between private citizens. People insult each other verbally, later one or both will plan a more sinister rebuttal like physical violence. So one question to ask, How can such potential verbal and physical attacks between and among private citizens be minimized?

Paul, Anthony, I want to blog this exchange. Hope ok with you, you may blog it too, cheers. 
Btway, I re-read the article posted by Anthony, PNP pala ang umatras eh. Government is scared of netizens themselves on certain cases. I think the fear and alarm is more alarming than the law itself.

Paul  Thanks Nonoy. I'm sure the Philippine government will appreciate my views. :)

Popular opposition against the new law indicates its unsustainability, in terms of politicians earning pogi points from the laws they pass. It doesn't mean the concerns are baseless or merely 'alarmist.'

Nonoy Possible. Kaya nga the proper attitude I think, is that instead of being afraid of that law, let us TAUNT the state. Let us taunt malacanang, the PNP, the AFP, the DOJ, Congress and the Senate. Let us see if they will really go after ordinary netizens who are in the millions. My bet is that they won't.

Kaya nga sabi ko, I won't lift or remove any blog post I made since 2005 and will wait for anyone to file a libel base against me, if any. My bet is that who ever will think of filing a libel will think twice, 10x, before they will do so. The ball is against anyone who will file a libel on the web and only those who are severely aggrieved will do so.

Anthony  At first I thought the reaction as simple alarmism but upon consideration, relalized that we need to put this in a wider context. RA10175 is only one of many advances by governments worldwide to crackdown on the 'Internet free-for-all.' Regardless of the Philippine government's ability to implement this, people are seeing it as yet another attempt to gain control over what they do.

Governments do fear the Internet and thus they want to control it. Such advances need to be opposed because the internet really is one of the most powerfull tools for promoting liberty we've ever known. In the hands of government, it can be turned into one of the most complete mechanisms for control.

Nonoy Anthony, then we should be thankful of this law, instead of attacking it. Why? More people are drawn to libertarianism and individual liberty than without this law. The line is drawn more clearly: those who want more regulations and those who don't.

Anthony  Nonoy, yes it can be a boon but at the same time we should attack it. Laws like this are just a toe in the water to test the climate. Look at what they're doing in the UK: they were using small but constant pushes against indivudual liberties that went unopposed. The next thing we knew, we were living in one of the world's most sophisticated police states. (That sounds like hyperbole until you look at the details of what they've been doing.)

Right now the Philippines doesn't have the technology. But technology is cheap and getting cheaper as time goes on.

Francis  I think this particular issue may have popular momentum against it, similar to other communications issues. Remember the outcry against the 'text tax' and other such? For some reason, Filipinos are very protective of such things. This could be our breakthrough. Question is, how do we mobilize in real life?...

Banner  I think vigilance is a good thing. Historically, encroaches by the state are incremental. In small steps, through small, seemingly morally necessary sacrifices. Losses of individual rights are more apparant through the accumulated effect of those small losses of liberty over time. Give'em an inch and they'll go for a mile (step by step, little by little). when that accumulation reaches a certain point, the losses come in bigger chunks. Since this issue is popular, I'd agree it will always have proper resistance but whether the issue is put on the forefront of people's minds is the big one. With young people, perhaps. But too many people use the internet, I'd agree is an easy topic to utilize. (environmentalism, not so easy as just about everyone would fight on that one, tho i'd love to see them justify the "environmental tax" i have to pay whenever i arrive in boracay or puerto galera by boat.)

looking at my facebook feed, a lot of my filipino cousins and friends who i would dub as being more liberal (you know, everyone should have health insurance and food no matter who pays for it, guns are evil, the environment, have zero understanding of basic economics, that type) are all posting stuff against this law. so it's popular with the younger folks that's for sure. it's all over my feed.

The Philippines Passes the Cybercrime Prevention Act that Makes SOPA Look Reasonable - Forbes

Thread 2: from my fb wall, Monday, October 01

I recommended this,

Eugene  In the end, the government is still the number one enemy on property rights.

Nonoy  I don't think so. Only socialist or communist governments disrespect private property rights. Capitalist governments, regardless of their form, generally respect priv property rights. But more corrupt ones lead to legalized confiscation of some priv. property.

Eugene  But this government has fast turning more communist be the day. :) The law itself has flaws that entirely obliterate the good provisions. If you make a blog or vlog that is highly critical of the government and it was hacked or stolen, would you dare to complain to the very government you're criticizing?

Its a sleight of hand magic. The framers of the law shrewdly use property rights as a bait to distract us from their real intentions.

Froi  Let's clarify that we're not against laws that protect "online" property and IP rights.

As Atty. Adam Mossoff, an IP lawyer, writes as to how pro-capitalists should evaluate the SOPA/PIPA issue:

"Since IP issues can be complex and it can be hard for laypersons to evaluate whether someone is a trustworthy expert or not, then I will propose how exactly Objectivists can guard themselves against accidentally supporting anti-IP positions, whether about SOPA or in the future. If you read someone’s criticism of a statute or court decision that supports IP rights, before you immediately jump on board with agreement, first find out the answer to the following question: Did this person or organization originally support Congress’s enactment of the DMCA, the successful copyright infringement lawsuits against Grokster, Napster, Aimster,, and the other valid legal actions that have secured IP rights on the Internet? If the answer is no, then their opposition against SOPA or any other future IP legislation is not about protecting the rights to property or liberty, and they are certainly not our allies in our fight for IP rights."

Nonoy Eugene, it's worse if you're an ordinary entrepreneur, you have a blog or website that advertises your products and services, say cakes, events organizing, tutorial, real estate, etc. Then your site is hacked, people see nude women and men, or urging people to shoot and kill this X group of people because they did so and so. And there is no sufficient law to penalize the perpetrators, people who envy you and your business, assuming that you found them. What happens to your property rights, your own site and your business?

I am critical of government generally but I support it when it implements laws that protect property rights, both physical and intellectual property.

Right Froi. The new law penalizes cyber squatting including stealing of trademark and logo. Someone steals and copies the trademark, logo, other IPRs of a new busline or inter-island shipping line, sells online tickets and when passengers go to their bus stations or seaports, the company turns them down as their tickets are fake. Or someone steals the trademark, logo of Pfizer, Unilab, GSK, etc. then sell cheap drugs online that turn out to be counterfeit or substandard, the patient dies or the situation worsened. I think there is no existing law that penalizes this kind of theft and disrespect of property rights.

Eugene  Well you know governments, they are not good in implementing good laws but godd in implementing bad ones.

Froi  I think that with passage of that so non-objective, dangerous law, people will begin to doubt and naively oppose every 'anti-cybercrime' law that our lawmakers are going to pass in the future... But of course, we need to be very 'skeptical' - and AGNOSTIC, to borrow your term with respect to some peeps' parliamentary idiocy- every time our politicians pass laws.

Nonoy  hmmm, Eugene, you and your family owns your house, your car, laptop, cellphone, your business logo and trademark, right? If these things are stolen from you and you cannot say that you have exclusive use and control of those properties, I think your statement is right. Otherwise, it's not correct to say so.

Right Froi. That is why I was very explicit that there are two ways to correct the mistakes of those 2 provisions: (a) to make explicit statements in the IRR that in Sec. 5, simple likes in fb of supposedly libelous comments should not be penalized, (b) amend the law quickly, or (c) get explicit statement from the DOJ that they will not implement Sec. 19 while amendment to the law is being crafted.

Eugene Again, its not the good provision that we are questioning. We are questioning the bad provisions which simply obliterate the good ones because governments would use this as a pretext of getting your computer, hack it, or use it against you.

Governments hates competition and competition of ideas is one of their deadly enemies. My house has been intruded by akyat bahay gang for many months this year and none of the government people would even lift a hand to help us and our neighbors. But they will seize your property and your liberty in no time once they know you write something defamatory against them.

Froi  ^^^ I think that was clearly explained in the paper. While Oplas disagrees with the law's totalitarian provisions, he nevertheless affirms the government's role to protect people's IP rights. That's why I said: "Let's clarify that we're not against laws that protect "online" property and IP rights."

Nonoy  Good points there. That is why I keep arguing that the main function of govt is to promulgate the rule of law and protect property rights. Focus there, and let go, step out, of many other functions like running banks, casinos, universities, specialized hospitals, military school, etc.

Meanwhile, I think it is high time for your village to change the security agency that you hired, or if there is none yet, to get one. The police is often an incompetent institution in protecting ordinary citizens. They "serve and protect" themselves and their superiors.

In another fb thread, I posted this yesterday:

I wrote a brief article about this law. I said that aside from 2 sections, there could be more, which need to be removed in an amendment to the law, this is a good law from the perspective of protecting private property rights. Examples:

1. You're an ordinary entrepreneur, you have a blog or website that advertises your products and services, say cakes, events organizing, pre-school, tutorial lessons, real estate, etc. Then your site is hacked, visitors see nude women and men, or huge hate messages urging people to shoot and kill this X group of people because they did so and so.

2. Someone steals and copies the trademark, logo, other IPRs of a bus line or a shipping line, sells online tickets and when passengers go to their bus station or seaport, the company turns them down as their tickets are fake.

3. Someone steals the trademark, logo of Pfizer, Unilab, GSK, etc. then sells cheap drugs online that turn out to be counterfeit or substandard, the patient dies or the situation worsened. ll these acts of sabotage are now punishable, on top of existing laws on these subjects,

Thread 3, Also from my fb wall, October 02:

Nonoy Oplas: I think the fear and alarm over this cybercrime law is more alarming than the law itself.

Eugene  The government better fear us first. hehehe

Doods We should be alarmed but not afraid. Makibaka, wag matakot hehe

Albert  Agree with you, Noy.

Janet  That's probably true, Noy, but all this activity--FB and elsewhere--is a good exercise, yes? Let's see how far FB can go. :D

Eugene  We have to take a ron paul attitude. when there is a provision in a law that violates the very rights and liberty of a person, no amount of good intentions and no amount of good provisions in the law is worthy of support.

Wesley  The way I see it, the more alarm, the more they back off. The less alarm, the more they take advantage. So I think it's impossible to overdo sounding the alarm.

Winthrop Nonoy, the fear and alarm at least serves to make people aware of the problem. Janet, would you like to compare the House and Senate committee report with the final version with the insertions? I can send you a zip file. :)

FYI, a J.D. who was involved in drafting the Budapest Convention (upon which our own CybCrime is based) presented a "quick" 2 hour critique of PH CybCrime .... 30 distinct defects. Since you used to do legislative work Noy, you might want to take a look and draw-up a list of your own. :)

Rommel  hmmm . . . its just lately that they've notice the great freedom in the internet.

Mel  hindi naman sa ganun. kaya lang, dito sa atin, unless malakas talaga ang ingay mo (at least enough for the politicos, este lawmakers, to notice) walang mangyayari sa iyo. the way to get across to the people concerned is to "alarm" them to the max.

Nonoy Oplas Hi all, thanks for the comment. I was thinking, I and a few others have been sounding the message that "BIG government is evil and wrong". Not much takers. I think this cybercrime law is the best message for our campaign, that we should not support further expansion of government, local and national levels. The bigger the government, the more interventionist, the more insecure, the more paranoid it becomes. And that is why we have this cybercrime law.

In my case, I am not that alarmed much. I've been blogging and criticizing big government, big bureaucracies, insecure bureaucrats and lovers of big government among civil society leaders, since late 2005. I think there is enough ground for some of those guys to file a libel case against me, let me see. My bet is that they won't. The alarmed public will be laughing and jeering at who -- the one suing or the one being sued? From many indicators, it's the one suing who will get the most flak, and that alone scares them.

Johnny  Pareng Nonoy, do not underestimate the creavity of those who have the knack of bending and twisting the letter of the law to wreak havoc, especially penal legislation like this one. It becomes pretty scary because by all indications it was deviously inserted and the suspect is a senator whose skewed values is underscored by his rabid opposition to the RH Bill....

Nonoy  Thanks Johnny. Kaya nga ako anti-RH bill eh, it means even BIGGER government. Condoms and pills lang, gobyerno pa? Sila Gawad Kalinga nga eh, thousands of houses for the poor, puro civil society and private sector resources lang, minimal or zero govt involvement. And this will be a lesson for the pro-RH camp: do NOT rely on government too much. Do not feed a monster with even more power, more "responsibility."

Btway, I never used any church argument against the RH bill, pure econ arguments lang.

Joel  How many jails combined is big enough to accommodate more than 30 million violators?
Btw, they cannot even enforce fully well and effectively laws as simple as the Anti-hazing Law! :(

Wouldn't it be ironic if someone criticizing the government for not effectively enforcing other existing laws be convicted of violating the cybercrime law just because he/she expressed disgust for the government's inaction?

Janet  I agree with you, Nonoy. I'm thinking, though, that the risks of being sued for libel by politicians might perhaps be miniscule for fear of flak, but we cannot discount (i) politicians who will not act logically and (ii) the fact that the law can be used for harassment by anyone, not just politicians, with enough resources to file a case. Some can initiate cases for leverage. How difficult to have a Damocles sword over our heads each time we utter something. While the CyberCrime law may, arguably, be described as an alligator without teeth--at least as far as libel is concerned--why should we suffer the alligator around?

Nonoy  Possible Janet. On the other hand, I foresee the mushrooming of anonymous blogs that will be more virulent, more libelous and more damaging to illogical politicians and government officials who will abuse that law. Very easy to put up a blog now, in 1 or 2 minutes, one can have a blog already anytime, anywhere. So there will be "balance of terror" somewhere and this will make illogical politicians to think more logically.

Janet  Haha, I like that--balance of terror. ;p

Nonoy Definitely it will be a terror for terror, an eye for an eye. The BIGGER the government and its coercion, the BIGGER the discontent of citizens. ill be exciting to see development once the first libel case is filed using this law. The spontaneity on both sides will produce outcomes that will be very difficult to predict.

Janet  "May you live in interesting times." :)

* See also Fat Free Econ 25: Property Rights and the Cybercrime Prevention Law, October 01, 2012

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