Senate inserted Section 19: How the 'take-down' clause emerged in Cybercrime Law
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MANILA, Philippines – The notorious 'take-down' provision in the Anti-Cybercrime Act which empowers the Department of Justice (DOJ) to restrict or block access to computer data was 'inserted' in the Senate version of the bill, details further coming into light now establish.
A review by Interaksyon.com of the May 31, 2012, minutes of the Bicameral Conference Committee that worked to reconcile Senate Bill No. 2796 and House Bill No. 5808 into what would ultimately become the Cybercrime Prevention Act of 2012, shows the provenance of the law's controversial Section 19.
A provision for "Restricting or Blocking Access to Computer Data" first appeared as Section 13 in the Senate. This was later moved as Section 18.
"Okay, Now, Section 13 of the Senate version will now become Section 18, Restricting or Blocking Access to Computer Data," the minutes quote conference committee member Sen. Edgardo Angara. Sen. Vicente Sotto III had earlier tagged Angara as the man responsible for Section 19 which, among other things, empowers the DOJ to restrict access to computer data, potentially allowing for the blocking of websites, experts say, without benefit of a warrant or court order. "When a computer data is prima facie, et cetera, et cetera," Angara is on record as saying.
Angara, chairman of the Congressional Commission on Science, Technology and Engineering (COMSTE), had sponsored the bill in the Senate.
In the final version of the consolidated bill under Republic Act 101751 signed by President Benigno Aquino III on September 12, 2012, Section 18, as agreed upon in the Bicameral Conference Committee, was then re-numbered as Section 19. It ultimately reads: "Restricting or Blocking Access to Computer Data - When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data."
Original Senate bill had no take-down clause
In the original Senate version, there was no "take down" provision. It was inserted only later during the period of amendments in the Senate plenary, and this was finally adopted by the Bicameral Conference committee.
Chapter IV of the Senate version only provided six sections: (9) Real-time Collection of Computer Data, (10) Preservation Of Computer Data, (11) Disclosure of Computer Data, (12) Search, Seizure, and Examination of Computer Data, (13) Non-compliance, and (14) Duties of Law Enforcement Authorities.
In the enacted law, four other sections were added: (10) Law Enforcement Authorities, (17) Destruction of Computer Data, (18) Exclusionary Rule and (19), Restricting or Blocking Access.
Meanwhile, aside from the sub-section on Libel under Section 4, Cybercrime Offenses, the Department of Justice (DOJ) had suggested the inclusion of an all-encompassing paragraph, to ensure that the new law covered all other crimes defined and penalized under the Revised Penal Code (RPC).
The new section suggested by DOJ was an aggravating circumstance, meaning, when the crime carried in the RPC and reiterated in the new law is committed, the penalties would be one degree higher.
Rep. Sigfrido Tinga, chairman of the House Committee on Information and Communications Technology, said (according to the bicameral panel’s Minutes) that "with regard to some of these offenses, the reason why they were not included in the House version initially is that, the assumption that the acts committed that would make it illegal in the real world would also be illegal in the cyber world."
"For example, Libel po. When we discussed this again with the Department of Justice, it was their suggestion to include an all-encompassing paragraph," Tinga said.
“A catch-all [clause], wherein all crimes defined and penalized by the Revised Penal Code as amended and special criminal laws committee by, through, and with the use of information and communications technology shall be covered by the relevant provisions of this act,” he added.
He explained that “By doing so, Mr. Chairman, we are saying that if we missed out on any of these crimes – we did not specify them, point by point - they would still be covered by this act.”
“And may we recommend, Mr. Chairman, that your definition of the penalty be added as well where it will be one degree higher that the relevant penalty as prescribed in the Revised Penal Code,” Tinga concluded. This approach was eventually approved by Angara.